Thursday, March 4, 2021

Slogan on school uniform is compelled speech


The US Court of Appeals for the Ninth Circuit has ruled that a slogan on school uniforms, when students are required to wear the uniform, is compelled speech and must therefore get strict scrutiny under the First Amendment of the Constitution.

Roy Gomm Elementary School, a public school in the Washoe County School District in Nevada, adopted a mandatory uniform policy for students: students have to wear red or navy polo-style shirts and tan or khaki bottoms. The shirts have the Roy Gomm logo on the front, which depicts a gopher with the words “Roy Gomm Elementary School.” The shirts also feature a slogan above the logo:

Tomorrow’s Leaders

With few exceptions, students are required to wear the uniform during school hours and at all class activities before or after school. Students who fail to comply with the uniform policy are subject to progressive discipline that could eventually result in out-of-school suspension.

Mary and John Frudden filed suit in federal district court against the Washoe County School District, claiming the uniform policy violates the children’s First Amendment rights. The district court, based on a ruling in Jacobs v Clark County School District (9th Cir. 2008), dismissed the Fruddens’ First Amendment claims. In Jacobs, the Ninth Circuit held that a public high school’s mandatory uniform policy does not violate the First Amendment.

But a three-judge panel on the Ninth Circuit in this case said the district court had failed to consider a few relevant facts, such as how in Jacobs, the uniforms in question didn’t have any words on them. At RGES, the shirts had words, and the students were required to display those words along with their wearing of the uniform. If the shirts were blank, this might have been a different case, which caused some gray areas during the oral arguments before the Ninth Circuit in October.

“That’s the problem, you talk about gray areas and when you get into gray areas, reasonable minds do differ,” one judge said during oral arguments. “The right to free speech, tying it to ideological message is I think potentially very problematic because what is benign and unoffensive to one person actually carries a communicative message that is distinct to somebody else and so I don’t think I necessarily accept that argument.”

In remanding the case to the district court, the panel said the words “Tomorrow’s Leaders” violated the “compelled speech doctrine.” The Supreme Court of the United States first established this doctrine in the case of West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). The Court said, “The action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

In a more recent case before the Supreme Court, Wooley v Maynard, 430 U.S. 705 (1977), the Supreme Court struck down a New Hampshire statute requiring motorists to display license plates with the state motto “Live Free or Die.” The Supreme Court held that the statute violated people’s First Amendment rights because it “forces an individual, as part of his daily life, indeed constantly while his automobile is in public view, to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.”

Justice Rehnquist gave the compelled speech doctrine its fundamental meaning in Wooley: “The test is whether the individual is forced ‘to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.'”

The uniform policy at RGES, according to the test established in Wooley, must be considered “compelled speech” and the First Amendment claims in the Nevada case here must have “strict scrutiny” applied to them. They can’t just be dismissed.

RGES’s inclusion of the motto “Tomorrow’s Leaders” on its uniform shirts is not meaningfully distinguishable from the State of New Hampshire’s inclusion of the motto “Live Free or Die” on its license plates. Practically speaking, RGES compels its students “to be an instrument” for displaying the RGES motto. Had the RGES uniforms consisted of plain-colored tops and bottoms, as in Jacobs, RGES would have steered clear of any First Amendment concerns. However, by mandating the written motto on the uniform shirts, the RGES policy compels speech under Wooley.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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