Mary Frudden v. Kayann Pilling

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARY FRUDDEN; JON E. FRUDDEN, No. 12-15403

Plaintiffs-Appellants,

D.C. No.

v. 3:11-cv-00474-

RCJ-VPC

KAYANN PILLING; ROY GOMM

UNIFORM COMMITTEE; HEALTH

MORRISON; LYNN RAUH; WASHOE OPINION

COUNTY SCHOOL DISTRICT; DEBRA

BIERSDORFF,

Defendants-Appellees.

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.

2 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 content-

based. 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.

FRUDDEN V. PILLING 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

4 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

FRUDDEN V. PILLING 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, in-

school 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

6 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

FRUDDEN V. PILLING 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.

8 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

FRUDDEN V. PILLING 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.

10 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

FRUDDEN V. PILLING 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 . . . .”).

12 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 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.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

FRUDDEN V. PILLING 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.

14 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

FRUDDEN V. PILLING 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

16 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 content-

specific 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.

FRUDDEN V. PILLING 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).

18 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 content-

based. 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.