Mary Frudden, et al v. Kayann Pilling, et al

Filing

FILED OPINION (N. RANDY SMITH, JACQUELINE H. NGUYEN and GORDON J. QUIST) REVERSED AND REMANDED. Judge: JHN Authoring, FILED AND ENTERED JUDGMENT. [8978802]

Case: 12-15403

02/14/2014

ID: 8978802

DktEntry: 44-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARY FRUDDEN; JON E. FRUDDEN,
Plaintiffs-Appellants,
v.

No. 12-15403
D.C. No.
3:11-cv-00474RCJ-VPC

KAYANN PILLING; ROY GOMM
UNIFORM COMMITTEE; HEALTH
MORRISON; LYNN RAUH; WASHOE
COUNTY SCHOOL DISTRICT; DEBRA
BIERSDORFF,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted
October 7, 2013—San Francisco, California
Filed February 14, 2014
Before: N. Randy Smith and Jacqueline H. Nguyen, Circuit
Judges, and Gordon J. Quist, Senior District Judge.*
Opinion by Judge Nguyen
*

The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.

Page: 1 of 18

Case: 12-15403

2

02/14/2014

ID: 8978802

DktEntry: 44-1

FRUDDEN V. PILLING
SUMMARY**

Civil Rights/First Amendment
The panel reversed the district court’s Fed. R. Civ. P.
12(b)(6) dismissal for failure to state a claim of an action
which alleged, among other things, that a public elementary
school’s mandatory uniform policy violated the First
Amendment.
Plaintiffs asserted that because the school’s uniform shirt
required the display of the written motto, “Tomorrow’s
Leaders,” the school’s uniform policy unconstitutionally
compelled speech about leadership. Plaintiffs also argued
that the uniform policy contained a content-based exemption
for students who wear a “uniform of a nationally recognized
youth organization, such as Boy Scouts or Girl Scouts, on
regular meeting days.”
The panel held that the school policy compelled speech
because it mandated the written motto on the uniform shirts.
Additionally, the panel held that the exemption for uniforms
of nationally recognized youth organizations such as Boy
Scouts and Girl Scouts on regular meeting days was contentbased. The panel concluded that these provisions implicated
First Amendment protections and were subject to strict
scrutiny review. Because the district court did not examine
whether there was sufficient evidence of the school’s
countervailing interests—and the record did not contain such
evidence—the panel remanded for further proceedings.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 18

Case: 12-15403

02/14/2014

ID: 8978802

FRUDDEN V. PILLING

DktEntry: 44-1

Page: 3 of 18

3

COUNSEL
Eugene Volokh, Mayer Brown LLP, Los Angeles, California,
for Plaintiffs-Appellants.
Randy A. Drake (argued), Chief General Counsel, Washoe
County School District, Office of the General Counsel, Reno,
Nevada; Michael E. Malloy, Kim G. Rowe and Debra O.
Waggoner, Maupin, Cox & LeGoy, Reno, Nevada, for
Defendants-Appellees.
Louis M. Bubala III, Armstrong Teasdale LLP, Reno,
Nevada; Frank D. LoMonte and Adam Ezra Schulman,
Student Press Law Center, Arlington, Virginia, for Amicus
Curiae Student Press Law Center.
Nathan W. Kellum, Center for Religious Expression,
Memphis, Tennessee; Jonathan Scruggs, Alliance Defense
Fund, Memphis, Tennessee, for Amicus Curiae Alliance
Defense Fund.

OPINION
NGUYEN, Circuit Judge:
This case represents the latest First Amendment challenge
to a public school’s mandatory student uniform policy. Six
years ago, in Jacobs v. Clark County School District,
526 F.3d 419 (9th Cir. 2008), we held that a public high
school’s mandatory uniform policy survives First
Amendment scrutiny. Relying on Jacobs, the district court
here dismissed Mary and Jon Frudden’s claim that the
mandatory uniform policy at their children’s public

Case: 12-15403

4

02/14/2014

ID: 8978802

DktEntry: 44-1

FRUDDEN V. PILLING

elementary school, the Roy Gomm Elementary School
(“RGES”), violates the First Amendment.
However, the RGES uniform policy differs in significant
respects from the one we found constitutional in Jacobs.
First, the RGES policy compels speech because it mandates
that a written motto, “Tomorrow’s Leaders,” be displayed on
the shirt. See Wooley v. Maynard, 430 U.S. 705 (1977). By
contrast, the uniforms in Jacobs consisted of plain-colored
tops and bottoms, without any expressive message. Second,
unlike the content-neutral policy in Jacobs, the RGES policy
contains a content-based exemption for “nationally
recognized youth organizations such as Boy Scouts or Girl
Scouts on regular meeting days.”
These provisions in the RGES uniform policy implicate
First Amendment protections and are subject to strict scrutiny
review. Wooley, 430 U.S. at 715–16. Because the district
court did not examine whether there was sufficient evidence
of the school’s countervailing interests—and the record does
not contain such evidence—we reverse and remand.
BACKGROUND
A
In May 2011, RGES instituted a mandatory, written
uniform policy. The policy was implemented over the
vigorous objection of one RGES parent, Mary Frudden, after
two-thirds of families voted to approve mandatory school
uniforms. Under the policy, students are required to wear red
or navy polo-style shirts and tan or khaki bottoms. The
RGES uniform shirts have the Roy Gomm logo on the front,
which depicts a gopher with the words “Roy Gomm

Page: 4 of 18

Case: 12-15403

02/14/2014

ID: 8978802

FRUDDEN V. PILLING

DktEntry: 44-1

Page: 5 of 18

5

Elementary School.” Critically, the shirts also include a
written message above the logo stating “Tomorrow’s
Leaders.” Students are not allowed to alter the uniform in
any way.
All students must wear the uniform during school hours
and all formal class activities before or after school. If a
student does not comply with the uniform policy, RGES
notifies the student’s parents and the student must change into
the approved uniform. Additionally, the non-compliant
student will be assigned detention for the first offense, inschool suspension, Saturday school, work crew, or multiple
detentions for the second offense, out-of-school suspension
for the third offense, and multiple days of out-of-school
suspension for any further offenses.
The policy contains certain exemptions, including an
exemption for students who wear “a uniform of a nationally
recognized youth organization such as Boy Scouts or Girl
Scouts on regular meeting days.”
B
The 2011–2012 academic year at RGES began on August
29, 2011. From August 29 to September 12, 2011, the
Frudden children (a fifth-grade boy and a third-grade girl) did
not wear the required uniform. The school did not take any
disciplinary action and did not ask the children to change into
the required uniform.
On September 12, 2011, both children wore American
Youth Soccer Organization (“AYSO”) uniforms to school.
AYSO is a nationally recognized youth organization which
regularly meets at least Monday through Friday. The

Case: 12-15403

6

02/14/2014

ID: 8978802

DktEntry: 44-1

FRUDDEN V. PILLING

Frudden children’s AYSO uniforms consisted of black shorts
and shirts displaying the AYSO logo on the front. Mary
Frudden informed school principal KayAnn Pilling that her
children were wearing uniforms that fell within the written
exemption to the policy.
Pilling told Frudden that the exemption did not apply
because the children had neither a meeting nor soccer practice
that day. Frudden protested to Debra Biersdorff, the Area
Superintendent for the Office of School Performance.
Biersdorff agreed with Pilling and said that Pilling could
remove a student to compel compliance with the uniform
policy. Pilling then called Frudden’s son into her office and
asked him to change. He agreed and changed into a loaner
shirt that Pilling provided. Later, Frudden’s daughter
likewise changed into the school uniform.
The following day, September 13, 2011, the Frudden
children again wore AYSO uniforms to school. Once again,
Pilling removed the children from class and asked them to
change. Both children agreed to change clothes, although
Frudden’s son stated that he did not want to do so. The next
day, September 14, 2011, Frudden’s son wore his RGES
uniform shirt inside-out so that the logo was not visible. He
turned his shirt right-side-out after he was called into Pilling’s
office and requested to do so.
C
On July 6, 2011, the Fruddens filed this action. On
October 18, 2011, the Fruddens filed a First Amended
Complaint, alleging sixteen claims for relief. This appeal
relates only to the second claim for relief, brought pursuant

Page: 6 of 18

Case: 12-15403

02/14/2014

ID: 8978802

DktEntry: 44-1

FRUDDEN V. PILLING

Page: 7 of 18

7

to 42 U.S.C. § 1983, alleging that the mandatory uniform
policy violates the children’s First Amendment rights.
The district court granted Defendants’ motion to dismiss.
The Fruddens timely appealed. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
STANDARD OF REVIEW
“We review de novo the district court’s dismissal for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6).” Zixiang Li v. Kerry, 710 F.3d 995, 998 (9th Cir.
2013) (citation omitted). “In determining whether dismissal
was properly granted, we assume all factual allegations are
true and construe them in the light most favorable to the
plaintiff.” Cervantes v. United States, 330 F.3d 1186, 1187
(9th Cir. 2003) (citation omitted).
DISCUSSION
The Fruddens contend that the RGES uniform policy is
subject to strict scrutiny review on two separate grounds.
First, they argue that because the uniform shirt must contain
a written motto, “Tomorrow’s Leaders,” the policy
unconstitutionally compels speech about leadership. Second,
they argue that the uniform policy contains a content-based
exemption for “nationally recognized youth organizations,
such as Boy Scouts or Girl Scouts, on regular meeting days.”
We agree.

Case: 12-15403

8

02/14/2014

ID: 8978802

DktEntry: 44-1

FRUDDEN V. PILLING
I
A

The “right of freedom of thought protected by the First
Amendment against state action includes both the right to
speak freely and the right to refrain from speaking at all.”
Wooley, 430 U.S. at 714 (citing W. Va. State Bd. of Educ. v.
Barnette, 319 U.S. 624, 633–34 (1943)); see also Rumsfeld v.
Forum for Academic & Institutional Rights, Inc., 547 U.S. 47,
61 (2006) (stating that “freedom of speech prohibits the
government from telling people what they must say”).
The compelled speech doctrine was articulated by the
United States Supreme Court in West Virginia Board of
Education v. Barnette, 319 U.S. 624. In that case, the
defendant board of education required all students “to
participate in the salute honoring the Nation represented by
the Flag.” Id. at 626. While saluting, students were required
to recite the Pledge of Allegiance. Id. at 627–29. The salute
and pledge were made a “regular part of the program of
activities in the public schools.” Id. at 626 n.2.
The plaintiffs sought to enjoin the board of education
from enforcing these rules. The plaintiffs’ children had been
expelled from school and their parents had been prosecuted
for “causing delinquency.” Id. at 629–30. A three-judge,
district court panel denied the board of education’s motion to
dismiss and granted the injunction. On direct appeal, the
Supreme Court affirmed. Id. at 642.
The Supreme Court expressed “no doubt that, in
connection with the pledges, the flag salute is a form of
utterance.” Id. at 632. Thus, sustaining the compulsory flag

Page: 8 of 18

Case: 12-15403

02/14/2014

ID: 8978802

FRUDDEN V. PILLING

DktEntry: 44-1

Page: 9 of 18

9

salute and pledge would mean that “a Bill of Rights which
guards the individual’s right to speak his own mind, left it
open to public authorities to compel him to utter what is not
in his mind.” Id. at 634. In affirming the injunction, the
Supreme Court held that “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.” Id. at 642.
Thirty years later, relying on Barnette, the Supreme Court
in Wooley struck down a New Hampshire statute requiring
motorists to display license plates embossed with the state
motto, “Live Free or Die.” 430 U.S. at 707, 717. The
plaintiffs, who were followers of the Jehovah’s Witnesses
faith, covered up the motto on their license plates because
they considered the motto “repugnant to their moral,
religious, and political beliefs.” Id. at 707–08.
The Supreme Court held that the statute violated the
plaintiffs’ 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.” Id. at 715. Discussing Barnette, the
Supreme Court reasoned that “[c]ompelling the affirmative
act of a flag salute involved a more serious infringement upon
personal liberties than the passive act of carrying the state
motto on a license plate, but the difference is essentially one
of degree.” Id.

Case: 12-15403

10

02/14/2014

ID: 8978802

DktEntry: 44-1

FRUDDEN V. PILLING
B
1

Relying on Wooley, the Fruddens argue that the RGES
uniform policy violates their children’s First Amendment
rights because the written motto, “Tomorrow’s Leaders,” on
the shirts compels students to express a particular viewpoint.
Because the district court dismissed the Fruddens’ compelled
speech claim based on Jacobs, 526 F.3d 419, see Frudden v.
Pilling, 842 F. Supp. 2d 1265, 1274 (D. Nev. 2012), we begin
with a discussion of that case.
In Jacobs, after the defendant school district created a
standard dress code for all county students, a number of
schools in the district instituted uniform policies. 526 F.3d at
422–23. The policies were similar and required students to
wear solid colored bottoms and solid-colored polo, tee, or
button-down shirts. Id. at 423 & n.5. Some schools allowed
uniform shirts to display a school logo as an option, although
most did not. Id.
A number of students and their parents challenged the
uniform policies. One plaintiff, a Jim Bridger Middle School
student, argued that his school’s policy violated his First
Amendment rights because it compelled him to convey a
symbolic message, one of support for conformity. Id. at 437.
We rejected that argument and held that the uniform policies
survived constitutional scrutiny. Id. at 438.
We reasoned that the uniforms at issue, consisting of
plain-colored tops and bottoms “can hardly be compared to
wearing the type of ‘uniform’ contemplated in Kerik—i.e., a
white hooded gown that clearly identifies its wearer as a

Page: 10 of 18

Case: 12-15403

02/14/2014

ID: 8978802

FRUDDEN V. PILLING

DktEntry: 44-1

Page: 11 of 18

11

member of the Ku Klux Klan and, presumably, as a
subscriber to its views.” Id. (discussing Church of Am.
Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 206 (2d
Cir. 2004)); see also Troster v. Pa. State Dept. of Corrs.,
65 F.3d 1086, 1092 (3d Cir. 1995) (stating with respect to an
American flag patch on state corrections officers’ uniforms
that “[o]bservers might perhaps infer that the wearer is
patriotic, but [the plaintiff] put on no evidence that observers
would likely understand the patch or the wearer to be telling
them anything about the wearers’ beliefs” (emphasis in
original)). Because the uniforms in Jacobs involved no
“written or verbal expression of any kind,” the plaintiff’s
school did not force him to “communicate any message
whatsoever—much less one expressing support for
conformity or community affiliation—simply by requiring
him to wear the solid-colored tops and bottoms mandated by
its uniform policy.” 526 F.3d at 438.
In contrast to the uniform policies in Jacobs, the RGES
policy mandates written expression, a message on the shirts
above the school logo stating “Tomorrow’s Leaders.” The
Fruddens argue that this written motto conveys two
viewpoints—that leadership should be celebrated (or at least
valued above being a follower); and that RGES is, in fact,
likely to produce “[t]omorrow’s leaders.”1
Relying on Jacobs, the district court here concluded that
“[t]here is no meaningful risk that a bystander would think

1
The written motto also differentiates this case from Kerik, 356 F.3d
197, in which the clothing itself was expressive, even though there may
not have been any written message thereon. See id. at 206 (“[T]he regalia
of the American Knights, including the robe, mask, and hood, are
expressive . . . .”).

Case: 12-15403

02/14/2014

12

ID: 8978802

DktEntry: 44-1

FRUDDEN V. PILLING

any of the hundreds of identically dressed young children on
the grounds of an elementary school individually chose the
motto and/or mascot appearing on their uniforms.” 842 F.
Supp. 2d at 1274 (citing Jacobs, 526 F.3d at 437–38).
However, that reasoning is inconsistent with Wooley. In
Wooley, then-Justice Rehnquist dissented on a similar basis.
Justice Rehnquist argued that there was “no affirmation of
belief involved in the display of state license tags upon the
private automobiles involved” in that case. 430 U.S. at 722
(Rehnquist, J., dissenting). But as Justice Rehnquist
recognized, this is not the test. “[T]he test is whether the
individual is forced ‘to be an instrument for fostering public
adherence to an ideological point of view he finds
unacceptable.’” Id. at 721 (Rehnquist, J., dissenting) (quoting
id. at 715 (majority opinion)).
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 plaincolored 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.2
2

In light of our holding, we do not address whether the Fruddens can
state a compelled speech claim based, without more, on the school logo
(i.e., the “stylized gopher” with the words “Roy Gomm Elementary
School”). See Jacobs, 526 F.3d at 433 (“While the [defendant school
district] could have steered far clear of the First Amendment’s boundaries
by foregoing the logo provision entirely, we nevertheless conclude that
allowing students’ otherwise solid-colored clothing to contain a school
logo—an item expressing little, if any, genuine communicative

Page: 12 of 18

Case: 12-15403

02/14/2014

ID: 8978802

FRUDDEN V. PILLING

DktEntry: 44-1

Page: 13 of 18

13

2
RGES’s arguments to the contrary are unavailing. First,
that RGES did not discipline the Fruddens’ children is
irrelevant to their First Amendment challenge. In Wooley, the
fact that the plaintiff already had “sustained convictions” and
“served a sentence of imprisonment for his prior offenses”
was of little significance because “the relief sought [wa]s
wholly prospective.” 430 U.S. at 711. More generally,
preenforcement challenges to government-imposed speech
restrictions are not extraordinary. See, e.g., Brown v. Entm’t
Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011) (preenforcement
challenge to law prohibiting sale or rental of “violent video
games”).
Second, while Defendants are correct that Wooley did not
involve compelled speech in the public elementary school
context, Barnette did. Moreover, while the First Amendment
rights of public school students “are not automatically
coextensive with the rights of adults in other settings” and
must be “applied in light of the special characteristics of the
school environment,” elementary school students “do not
shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.” Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260, 266 (1988) (internal quotation
marks omitted); see also Barnette, 319 U.S. at 624-26.3

message—does not convert a content-neutral school uniform policy into
a content-based one.”). We note, however, that inclusion of the school
logos in Jacobs was optional.
3

On remand, the elementary school context may be relevant in weighing
RGES’s interest in including the motto on the uniform shirt.

Case: 12-15403

14

02/14/2014

ID: 8978802

DktEntry: 44-1

FRUDDEN V. PILLING

Third, whether the RGES students had any alternative
means to disclaim the school motto is not significant.
Illustratively, in Wooley, the plaintiffs could have “place[d]
on their bumper a conspicuous bumper sticker explaining in
no uncertain terms that they do not profess the motto ‘Live
Free or Die’ and that they violently disagree with the
connotations of that motto.” 430 U.S. at 722 (Rehnquist, J.,
dissenting). Likewise, in Barnette, the compulsory salute and
recitation constituted compelled speech even though students
could have “simulate[d] assent by words without belief and
by a gesture barren of meaning.” 319 U.S. at 633.
Finally, we do not believe the First Amendment analysis
turns on an examination of the ideological message (or lack
thereof) of “Tomorrow’s Leaders.” As the D.C. Circuit
recently explained, “[t]he right against compelled speech is
not, and cannot be, restricted to ideological messages.” Nat’l
Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 957 (D.C. Cir. 2013);
accord, e.g., Forum for Academic & Institutional Rights, Inc.,
547 U.S. at 62 (“[C]ompelled statements of fact . . . , like
compelled statements of opinion, are subject to First
Amendment scrutiny.”); Barnette, 319 U.S. at 634 (“Whether
the First Amendment to the Constitution will permit officials
to order observance of ritual of this nature does not depend
upon whether as a voluntary exercise we would think it to be
good, bad or merely innocuous.”); Cressman v. Thompson,
719 F.3d 1139, 1152 (10th Cir. 2013) (“[T]he Supreme
Court’s case law suggests that ideological speech is not the
only form of forbidden compelled speech.” (citing cases)).
II
Next, we turn to the Fruddens’ argument that the policy
is not content-neutral because it contains an exemption for

Page: 14 of 18

Case: 12-15403

02/14/2014

ID: 8978802

FRUDDEN V. PILLING

DktEntry: 44-1

Page: 15 of 18

15

uniforms of “nationally recognized youth organizations such
as Boy Scouts and Girl Scouts on regular meeting days.”
According to the Fruddens, the AYSO is a nationally
recognized youth organization which regularly meets at least
Monday through Friday.
In considering the exemption at issue, we find Carey v.
Brown, 447 U.S. 455 (1980), instructive. In Carey, the
Supreme Court struck down a statute that generally prohibited
picketing of residences and dwellings, but exempted “‘the
peaceful picketing of a place of employment involved in a
labor dispute.’” Id. at 457. The statute plainly “accords
preferential treatment to the expression of views on one
particular subject; information about labor disputes may be
freely disseminated, but discussion of all other issues is
restricted.” Id. at 461. The Supreme Court held that the
statute was not content-neutral because “[t]he permissibility
of residential picketing under [the statute] is thus dependent
solely on the nature of the message being conveyed.” Id.; see
also Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 98–99
(1972) (“[J]ustifications for selective exclusions from a
public forum must be carefully scrutinized. Because
picketing plainly involves expressive conduct within the
protection of the First Amendment, discriminations among
pickets must be tailored to serve a substantial governmental
interest.” (citations omitted)).
Similarly, the language of the RGES policy’s exemption
favors the uniforms of certain youth organizations over all
other clothing that the students may choose to wear in the
absence of the exemption. Further, the exemption explicitly
favors the uniforms of the Boy Scouts and Girl Scouts over
all other uniforms (e.g., those of the AYSO), and favors the
uniforms of “nationally recognized” youth organizations over

Case: 12-15403

02/14/2014

16

ID: 8978802

DktEntry: 44-1

FRUDDEN V. PILLING

those of locally or regionally recognized youth organizations.
Indeed, requiring national recognition implicitly favors the
uniforms of youth organizations that enjoy widespread
acceptance – although what degree of acceptance would
qualify a youth organization as “nationally recognized” is
unclear. The determination concerning whether a given
youth organization is “nationally recognized” – to some
undefined degree – “cannot help but be based on the content”
of the organization and its uniform “and the message it[s
uniform] delivers.” See Regan v. Time, Inc., 468 U.S. 641,
648 (1984) (ruling that exception to statute prohibiting
photographic reproductions of currency “presented
constitutional problems of its own”). Therefore, we conclude
that the RGES policy’s “exemption indicates a contentspecific distinction between favoring certain clothing-related
‘speech.’” See Jacobs, 373 F. Supp. 2d at 1182.4
III
Having identified the Fruddens’ “interests as implicating
First Amendment protections does not end our inquiry
however.” See Wooley, 430 U.S. at 715.
Because RGES compels students to endorse a particular
viewpoint, strict scrutiny applies – that is, inclusion of the
written motto on the RGES uniform shirts must be “‘a
4

Significantly, the uniform policy in Jacobs included a nearly identical
exemption for “nationally recognized youth organizations such as the Boy
Scouts or the Girl Scouts” when “those organizations have their meeting
days.” See 526 F.3d at 424 n.12; Jacobs, 373 F. Supp. 2d at 1166. After
the district court in that case expressed “strong reservations” that the
exemption was not content-neutral, the defendant school district
voluntarily eliminated the exemption from the policy. 526 F.3d at 524 &
n.12.

Page: 16 of 18

Case: 12-15403

02/14/2014

ID: 8978802

FRUDDEN V. PILLING

DktEntry: 44-1

Page: 17 of 18

17

narrowly tailored means of serving a compelling state
interest.’” Rounds v. Or. State Bd. of Higher Educ., 166 F.3d
1032, 1038 n.4 (9th Cir. 1999) (quoting Pac. Gas & Elec. Co.
v. Public Utils. Comm’n, 475 U.S. 1, 19 (1986)); see Wooley,
430 U.S. at 716 (“We must also determine whether the State’s
countervailing interest is sufficiently compelling to justify
requiring appellees to display the state motto on their license
plates.” (citing United States v. O’Brien, 391 U.S. 367,
376–77 (1968))).
Likewise, it is axiomatic that we “apply the most exacting
scrutiny to regulations that suppress, disadvantage, or impose
differential burdens upon speech because of its content.”
Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994)
(citations omitted).5 Thus, the RGES policy’s content-based
exemption also must survive strict scrutiny review.
Because the district court granted Defendants’ motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
RGES was not required to make any showing regarding its
justifications for including the written motto or the exemption
in the policy. Likewise, the Fruddens were not given the
opportunity to produce any countervailing evidence. Nor is
the record adequately developed on these issues. Thus, we
conclude that a remand is necessary. Whether Defendants’
“countervailing interest is sufficiently compelling to justify
requiring” the written motto and the exemption is a question

5

“In contrast, regulations that are unrelated to the content of speech are
subject to an intermediate level of scrutiny, because in most cases they
pose a less substantial risk of excising certain ideas or viewpoints from the
public dialogue.” Id. (citation omitted).

Case: 12-15403

18

02/14/2014

ID: 8978802

DktEntry: 44-1

FRUDDEN V. PILLING

for summary judgment or trial.6 See Wooley, 430 U.S. at
715–16; Jacobs, 526 F.3d at 425 (noting that the district court
construed the motion to dismiss as one for summary
judgment and allowed the parties to supplement the record
accordingly).
CONCLUSION
We hold that the RGES policy compels speech because it
mandates the written motto, “Tomorrow’s Leaders,” on the
uniform shirts. Further, the exemption for uniforms of
“nationally recognized youth organizations such as Boy
Scouts and Girl Scouts on regular meeting days” is contentbased. For these reasons, we conclude that strict scrutiny
review applies.
We reverse and remand for further proceedings consistent
with this opinion.
REVERSED and REMANDED.

6
We do not suggest that the entire policy must fall if RGES’s
justifications are insufficient. For example, under Jacobs, the RGES
policy clearly would survive constitutional scrutiny if the uniforms consist
of plain-colored tops and bottoms. Thus, whether the written motto or the
exemption passes constitutional muster are separate inquiries.

Page: 18 of 18