Jon E. Frudden, as parent and guardian of his minor children John Doe and Jane Doe, Plaintiff-Appellant,
KayAnn Pilling, individually, and in her official capacity as the Principal of Roy Gomm Elementary School and as an executive director of the Roy Gomm Elementary School Parent-Faculty Association, Inc; Roy Gomm Elementary School Parent-faculty Association, Inc.; Heath Morrison, Ph.D., individually and in his official capacity as the Washoe County School District Superintendent; Lynn Rauh, individually and in her official capacity as the Area Superintendent of the office of School Performance for the Washoe County School District; Washoe County School District, Defendants-Appellees.
and Submitted February 17, 2017 San Francisco, California
from the United States District Court for the District of
Nevada Robert Clive Jones, District Judge, Presiding D.C. No.
Frudden (argued), Reno, Nevada, for Plaintiff-Appellant.
K. Almo (argued), Christopher B. Reich, and Neil A. Rombardo,
Washoe County School District, Reno, Nevada, for
Volokh (argued), Attorney; Michael Newborn, Melanie Rollins,
Sina Safvati, Anjelica Sarmiento and Nicholas Goshgarian, Law
Students; Scott & Cyan Banister First Amendment Clinic,
UCLA School of Law, Los Angeles, California, for Amicus
Curiae Student Press Law Center.
Before: William A. Fletcher, Julio M. Fuentes, [*] and Johnnie B.
Rawlinson, Circuit Judges.
panel affirmed the district court's grant of summary
judgment to individual defendants and reversed the district
court's grant of summary judgment to institutional
defendants, and remanded in an action challenging, on First
Amendment grounds, an elementary school's uniform policy.
challenged a school uniform that required his children to
wear shirts or sweatshirts with a logo consisting of the name
of the school, a stylized picture of a gopher (the school
mascot), and the motto "Tomorrow's Leaders." An
exemption from the policy allowed students to wear the
uniform of a nationally recognized youth organization on
regular meeting days of that organization. In a prior appeal,
a three-judge panel held that the district court should have
analyzed the motto requirement and the exemption under
strict, rather than intermediate, scrutiny and reversed the
district court's decision and remanded. Frudden v.
Pilling (Frudden II), 742 F.3d 1199, 1204-05
(9th Cir. 2014). On remand, the district court granted
summary judgment in favor of defendants.
appeal from the district court's summary judgment, the
panel disagreed with the prior panel that reversed and
remanded the district court's decision in Frudden
II. The panel believed that intermediate rather than
strict scrutiny should be applied to the uniform policy. The
panel's sua sponte en banc call to reverse the prior
decision, however, failed to receive a majority vote of the
active members of the Court. Given the failure of the en banc
call, the panel considered itself bound by the holding of the
prior three-judge panel. So bound, the panel held that the
uniform policy-both the motto requirement and the exemption-
violated the First Amendment. The panel held that although
there can hardly be interests more compelling than fostering
children's educational achievement and providing a safe
and supportive educational environment, requiring students to
display the motto "Tomorrow's Leaders" on their
school uniforms was not narrowly tailored to serve those
interests. The exemption for the uniforms of nationally
recognized youth organizations also failed strict scrutiny.
panel held that the individual defendants were entitled to
qualified immunity because the applicable law was not
sufficiently clear to put them on notice that the uniform
policy would violate the First Amendment. However, because
the institutional defendants were not individuals, they were
not protected by qualified immunity.
FLETCHER, CIRCUIT JUDGE
2011, Mary and Jon Frudden brought suit against officials and
entities associated with the Roy Gomm Elementary School
("RGES") and the Washoe County School District
("WCSD") in Nevada. The Fruddens challenged on
First Amendment grounds a school uniform policy that required
their two minor children to wear shirts or sweatshirts with a
logo consisting of the name of the school, a stylized picture
of a gopher (the school mascot), and the motto
"Tomorrow's Leaders." An exemption from the
policy allowed students to wear the uniform of a nationally
recognized youth organization on regular meeting days of that
organization. The district court applied intermediate
scrutiny and upheld the RGES uniform policy. In February
2014, a three-judge panel of this court reversed and remanded
on the ground that the district court should have analyzed
the motto requirement and the exemption under strict, rather
than intermediate, scrutiny. Frudden v. Pilling
(Frudden II), 742 F.3d 1199, 1204-05 (9th Cir.
case comes before us following the district court's award
on remand of summary judgment against the Fruddens.
Defendants-Appellees are KayAnn Pilling, Heath Morrison, and
Lynn Rauh ("Individual Defendants"), the Roy Gomm
Elementary School Parent-Faculty Association, Inc.
("PFA") and WCSD ("Institutional
Defendants"). Jon Frudden is now the sole
Plaintiff-Appellant on behalf of his two children. Mary
Frudden, an attorney, is now counsel of record. The Frudden
children no longer attend RGES, and prospective relief is no
longer at issue.
three-judge panel disagrees with the three-judge panel that
reversed and remanded the district court's decision in
Frudden II. We believe that intermediate rather than
strict scrutiny should be applied to the RGES uniform policy.
In an attempt to reverse the decision of the first panel, we
made a sua sponte en banc call. The call failed to
receive a majority vote of the active members of our court.
the failure of our en banc call, we consider ourselves bound
by the holding of the prior three-judge panel. So bound, we
hold that the uniform policy-both the motto requirement and
the exemption-violate the First Amendment. We further hold
that the Individual Defendants are entitled to qualified
immunity because the applicable law was not sufficiently
clear to put them on notice that the uniform policy would
violate the First Amendment. However, because the
Institutional Defendants are not individuals, they are not
protected by qualified immunity.
affirm in part, reverse in part, and remand for further
fall of 2009, the Fruddens' two minor children enrolled
at Roy Gomm Elementary School, a K-6 public school in Reno,
Nevada. At a welcoming event that fall, WCSD Superintendent
Dr. Heath Morrison asked the RGES Parent-Faculty Association
("PFA") to help improve students' test scores.
Mimi Butler, President of the PFA, believed that school
uniforms would help achieve that goal. Specifically, she
believed that school uniforms would help students "learn
how to 'dress for success' and focus on schoolwork
rather than their clothing, " and would "help even
the playing field for those students who could not afford
expensive clothes." RGES Principal KayAnn Pilling shared
Butler's view that a uniform policy would help improve
test scores. Pilling believed that uniforms would also help
mitigate wealth-based bullying facilitated or encouraged by
differences in clothing worn by students at RGES. Among the
students Pilling sought to protect were those in a special
education program, many of whom participated in a free or
reduced-cost lunch program.
Butler and Pilling's support, in the spring of 2010 the
PFA began discussing the merits of a uniform policy. A
proposal for mandatory uniforms failed to garner the
necessary two-thirds support of the PFA in May. School
officials revived the proposal the following year. At that
point, Mary Frudden began attending PFA meetings to express
her strong opposition to mandatory school uniforms. Over Mary
Frudden's objections, the PFA approved a mandatory school
uniform policy in May 2011.
same month, RGES mailed to parents a four-page document
describing the new uniform policy for the 2011-2012 school
year. The document described the policy's main purpose as
"establish[ing] a culture of 'one team, one
community' " at RGES by "foster[ing] school
spirit and unity, as well as a disciplined and safe learning
environment." Under the policy, students were required
to wear either a red or a navy polo-style shirt or
sweatshirt. The shirts and sweatshirts were available for
purchase through the school. The shirts cost $7.00 each
($9.00 for XXL); the sweatshirts cost $9.00 each ($11.00 for
XXL). The school provided three uniform shirts free of charge
"to each enrolled student who is experiencing financial
hardship." "Uniform bottoms"-"long pants,
capri-length pants, jumpers, skirts, skorts or
shorts"-were required to be "khaki or tan in
color" and could be purchased "from a location of
choice." There were several exemptions from the uniform
requirement: (1) "When a student wears a uniform of a
nationally recognized youth organization such as Boy Scouts
or Girl Scouts on regular meeting days"; (2) "On
days designated as 'free dress/spirit wear'
days"; (3) "Field trips that are designated by
specific teachers as 'free dress' field trips";
and (4) "When a student is on campus outside of normal
school hours." The policy included a system of
escalating sanctions to enforce the uniform policy.
shirts and sweatshirts had a small logo on the front. Written
at the bottom of the logo, in capital letters, was "ROY
GOMM ELEMENTARY SCHOOL." "ROY GOMM" was in
large letters; "ELEMENTARY SCHOOL" was in small
letters. In the middle of the logo was a stylized picture of
the school mascot, a gopher. The motto "TOMORROW'S
LEADERS" was written in small capital letters above the
gopher, in an arching semi-circle.
Frudden children, a third-grade girl and a fifth-grade boy,
began the 2011-2012 school year on August 29. Mary and Jon
Frudden had filed a pro se suit challenging the uniform
policy the month before. For the first two weeks of school,
the children did not wear the required uniform. Principal
Pilling then sent an e-mail to Mary Frudden:
I am taking another opportunity to try to reach out to you
and to establish a cooperative working relationship with you
in regards to the uniform issue and your children. . . .
As we come to the end of our second week of school, we are
also coming to the end of the grace period for being
non-compliant with the uniform dress code policy. It is my
greatest desire not to have to follow the outlined steps of
our policy in regards to insubordination when dealing with
your children next week. I am very fond of your children. I
am still hopeful that you will be willing to meet with me and
to work out an alternative situation that does not impact
your children and put them in a position of having
consequences at school. . . .
I am again extending you an invitation to meet with me to
discuss the uniform issue. I know that you have not been
willing to talk to me in the past, but the situation is now
becoming critical in terms of not putting your children in
the middle of a situation that will result in consequences
for them for being insubordinate if they refuse to wear a
uniform next week.
receiving the email, Mary Frudden sent her children to school
wearing American Youth Soccer Organization ("AYSO")
uniforms of black shorts and shirts with the AYSO logo on ...