Jon Frudden v. Kayann Pilling

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JON E. FRUDDEN, as parent and No. 15-15448

guardian of his minor children John

Doe and Jane Doe, D.C. No.

Plaintiff-Appellant, 3:11-cv-00474-

RCJ-WGC

v.

KAYANN PILLING, individually, and OPINION

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.

2 FRUDDEN V. PILLING

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Argued and Submitted February 17, 2017

San Francisco, California

Filed December 11, 2017

Before: William A. Fletcher, Julio M. Fuentes,*

and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge W. Fletcher

SUMMARY**

Civil Rights

The 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.

Plaintiff challenged a school uniform that required his

children to wear shirts or sweatshirts with a logo consisting

*

The Honorable Julio M. Fuentes, United States Circuit Judge for the

U.S. Court of Appeals for the Third Circuit, sitting by designation.

**

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

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.

On 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.

4 FRUDDEN V. PILLING

The 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.

COUNSEL

Mary Frudden (argued), Reno, Nevada, for Plaintiff-

Appellant.

Sara K. Almo (argued), Christopher B. Reich, and Neil A.

Rombardo, Washoe County School District, Reno, Nevada,

for Defendants-Appellees.

Eugene 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.

FRUDDEN V. PILLING 5

OPINION

W. FLETCHER, Circuit Judge:

In July 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. 2014).

This 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.

6 FRUDDEN V. PILLING

Our 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.

Given 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.

We affirm in part, reverse in part, and remand for further

proceedings.

I. Background

In the 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

FRUDDEN V. PILLING 7

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.

With 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.

That 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

8 FRUDDEN V. PILLING

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.

Uniform 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.

The 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. . . .

FRUDDEN V. PILLING 9

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.

After 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 the front. The prior three-judge panel recounted:

AYSO is a nationally recognized youth

organization which regularly meets at least

Monday through Friday. . . . Mary Frudden

informed school principal KayAnn Pilling that

10 FRUDDEN V. PILLING

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, . . . 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, . . . 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.

Frudden II, 742 F.3d at 1202.

FRUDDEN V. PILLING 11

II. Procedural History

A. Frudden I and II

The Fruddens’ First Amended Complaint, filed October

18, 2011, alleged inter alia that the school district and various

individuals, including Principal Pilling and Superintendent

Morrison, had violated their childrens’ First Amendment

rights. The focus of their complaint was the uniform

requirement in general, not the motto in the logo. The

Fruddens sought relief under 42 U.S.C. § 1983.

On January 31, 2012, the district court granted the

defendants’ motion to dismiss. Frudden v. Pilling, 842 F.

Supp. 2d 1265, 1273–74 (D. Nev. 2012) (Frudden I). The

court relied on our decision in Jacobs v. Clark County School

District, 526 F.3d 419, 434 –38 (9th Cir. 2008), in which we

upheld a Clark County, Nevada, public school policy that

required students to wear “solid khakicolored bottoms and

solid-colored polo, tee, or button-down shirts . . . with or

without [school] logos.” On the ground that such a uniform

requirement was content-neutral, we applied intermediate

scrutiny and upheld the mandatory public school uniform

policy. Id. at 436–37.

On February 14, 2014, a three-judge panel of this court

reversed. Frudden II, 742 F.3d at 1201. The panel held that,

unlike the content-neutral uniforms at issue in Jacobs,

RGES’s mandatory uniform policy contained two features

that merited strict rather than intermediate scrutiny.

First, the Fruddens argued that the motto “Tomorrow’s

Leaders” “convey[ed] two viewpoints—that leadership

should be celebrated (or at least valued above being a

12 FRUDDEN V. PILLING

follower); and that RGES is, in fact, likely to produce

‘[t]omorrow’s leaders.’ ” Frudden II, 742 F.3d at 1204. The

panel agreed and concluded that the requirement that students

wear polo shirts with the motto “Tomorrow’s Leaders” was

not “meaningfully distinguishable from the State of New

Hampshire’s inclusion of the motto ‘Live Free or Die’ on its

license plates.” Id. at 1205; see Wooley v. Maynard, 430 U.S.

705 (1977). The panel wrote:

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.

Frudden II, 742 F.3d at 1205.

Second, the Fruddens argued that the exemption from the

policy for uniforms of “nationally recognized youth

organizations such as the Boy Scouts and Girl Scouts on

regular meeting days” was not content-neutral. Relying on

Carey v. Brown, 447 U.S. 455 (1980), in which the Supreme

Court struck down a statute giving favorable treatment to

labor picketing, the panel agreed. It wrote:

Similarly [to Carey v. Brown], 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.

FRUDDEN V. PILLING 13

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 those of locally or regionally recognized

youth organizations.

Id. at 1206.

The panel remanded to the district court, ordering it to

apply strict scrutiny to the motto requirement and to the

exemption for uniforms of nationally recognized youth

organizations. With respect to “Tomorrow’s Leaders,” the

panel wrote that to survive strict scrutiny the motto must be

“a narrowly tailored means of serving a compelling state

interest.” Id. at 1207 (citation omitted). With respect to the

exemption for other uniforms, it wrote that “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.’ ” Id. (citation omitted).

B. Remand

On remand from this court, Mary Frudden withdrew as a

named plaintiff and became counsel of record. On April 8,

2014, Jon Frudden, now the sole plaintiff suing on behalf of

the Frudden children, filed a Second Amended Complaint

against the Individual Defendants, PFA, and WCSD. The

complaint sought injunctive relief, damages, and attorney’s

fees under 42 U.S.C. § 1983.

In June 2014, the WCSD Board of Trustees adopted a

new policy under which school uniforms could have a logo

14 FRUDDEN V. PILLING

containing a school name and mascot but “[n]o other

language . . . not specific to the school name and mascot.”

The new policy prohibited uniform policies that included

“[c]ontent-based exceptions” such as “[t]eam clothing” or

“[u]niforms of outside organizations.” On June 16, the new

principal of RGES sent a letter to parents advising them to

purchase new school uniforms that complied with the new

policy. Consistent with the new policy, RGES uniforms no

longer include the motto “Tomorrow’s Leaders.”

On February 10, 2015, the district court granted summary

judgment to defendants. Frudden v. Pilling (Frudden III),

Case No. 3:11–cv–00474–RCJ–VPC (D. Nev.). The court

held that the claim for prospective relief was moot. With

respect to damages, the court held that the Individual

Defendants were entitled to qualified immunity because there

was no “clearly established right against the compelled

wearing of a school motto on an elementary school uniform

or against a uniform exception for nationally recognized

youth organizations.” With respect to the Institutional

Defendants, who were not entitled to qualified immunity, the

court held that the “Tomorrow’s Leaders” motto requirement

was narrowly tailored to a compelling state interest and

therefore survived strict scrutiny. The court did not reach the

question whether the policy’s exemption for other uniforms

satisfied strict scrutiny, on the ground that the Frudden

children “suffered no damages as a result of the previous

content-based exemption.”

Jon Frudden timely appealed.

FRUDDEN V. PILLING 15

III. Standard of Review

We review the district court’s grant of summary judgment

de novo. Evanston Ins. Co. v. OEA, Inc., 566 F.3d 915, 918

(9th Cir. 2009). Summary judgment is appropriate when,

viewing the evidence in the light most favorable to the non-

movant, there is no genuine issue of material fact and the

movant is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a); Olsen v. Idaho State Bd. of Med., 363 F.3d 916,

922 (9th Cir. 2004).

IV. Discussion

The parties agree that the claim for prospective relief is

moot. The claim for damages, however, is not moot. We

address the damages issue in three parts. First, we ask

whether the required wearing of the uniform with the logo

containing the motto “Tomorrow’s Leaders,” and the

exemption for uniforms of nationally recognized groups,

violate the First Amendment. Second, we ask whether the

Individual Defendants are entitled to qualified immunity.

Third, we briefly address damages against the Institutional

Defendants.

A. First Amendment

The three-judge panel in Frudden II held that the motto

“Tomorrow’s Leaders” required as part of the logo on the

school uniform, as well as the exemption for uniforms of

nationally recognized youth organizations, are subject to

strict scrutiny. We disagree with the conclusion that strict

rather than intermediate scrutiny applies, but we consider

ourselves bound by the conclusion of the earlier panel.

16 FRUDDEN V. PILLING

1. “Tomorrow’s Leaders” Motto

Under strict scrutiny, speech limitations may be upheld

only “if they are narrowly tailored to serve a compelling

interest.” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656,

1664–65 (2015). “The State must specifically identify an

‘actual problem’ in need of solving, and the curtailment of

free speech must be actually necessary to the solution.”

Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 799 (2011)

(internal citation omitted). We conclude that the motto

“Tomorrow’s Leaders” cannot withstand strict scrutiny.

Defendants identify two governmental interests served by

the motto: promoting student achievement; and preventing

bullying or distractions arising out of differences in students’

socioeconomic backgrounds that, in the absence of a required

uniform, would be reflected in their clothing. Circuit courts

are in general agreement that such goals constitute “important

interests” when applying intermediate scrutiny. See Jacobs,

526 F.3d at 435 (holding that the government’s stated goals

of increasing student achievement, promoting safety, and

enhancing a positive school environment “unquestionably

qualify as ‘important’ ”); Blau v. Fort Thomas Pub. Sch.

Dist., 401 F.3d 381, 391 (6th Cir. 2005) (designating the

goals of “bridging socio-economic gaps between families,”

“focusing attention upon learning,” and “improving test

scores” as “important governmental interests”); Canady v.

Bossier Parish Sch. Bd., 240 F.3d 437, 443 (5th Cir. 2001);

Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275 (5th Cir.

2001).

We have found no direct authority on the question

whether Defendants-Appellees’ stated interests qualify as

compelling (not merely important) governmental interests,

FRUDDEN V. PILLING 17

but conclude that they do so qualify. There can hardly be

interests more compelling than fostering children’s

educational achievement and providing a safe and supportive

educational environment. However, we reluctantly conclude

that requiring students to display the motto “Tomorrow’s

Leaders” on their school uniforms is not narrowly tailored to

serve those interests.

Defendants argue that the motto “Tomorrow’s Leaders”

promotes student achievement, but they provide no specific

explanation of how this motto and student achievement are

connected. The relationship between the challenged motto

and student achievement is somewhat attenuated. To the

extent that a logo on a required school uniform does promote

student achievement, narrow tailoring that would result in the

replacement of a content-based motto by a content-neutral

motto would hardly lessen the otherwise beneficial impact of

the uniform and logo.

Defendants further argue that the motto was necessary to

prevent wealth-based bullying, on the ground that the

alternative was a uniform requirement that would have

permitted wealthier students to buy and to wear costlier,

brand-name versions of polo shirts. Defendants contend that

some kind of logo was necessary to obscure or eliminate a

brand name that would otherwise have appeared on the polo

shirts. This strikes us as extremely unlikely as a factual

matter. The school could have required (indeed, the record

suggests that the school may actually have required) purchase

of polo shirts through the school. If the policy required that

polos be purchased through the school, the school could

almost certainly have obtained and made available for sale

only polo shirts that had no brand names attached. But even

in the extremely unlikely event that mandatory logos were the

18 FRUDDEN V. PILLING

only means by which brand names could have been

eliminated, there was no need to include the motto

“Tomorrow’s Leaders” in the logo to accomplish this

purpose.

2. Uniforms of Nationally Recognized Youth Groups

RGES’s exemption for the uniforms of nationally

recognized youth organizations also fails strict scrutiny. The

district court concluded that it did not need to reach this

question because, in its view, the children “suffered no

damages as a result of the previous content-based

exemption.” The court erred in concluding, on the ground

that because no actual damages were suffered, that it was

unnecessary to reach the merits of Frudden’s claim. “When

a plaintiff alleges violation of a constitutional right, the

Supreme Court has held that, even if compensatory damages

are unavailable because the plaintiff has sustained no ‘actual

injury’ . . . nominal damages are nonetheless available in

order to ‘make the deprivation of such right actionable’ and

to thereby acknowledge the ‘importance to organized society

that the right be scrupulously observed.’ ” Jacobs, 526 F.3d

at 426 (quoting Carey v. Piphus, 435 U.S. 247, 266 (1978)

(internal brackets omitted). We therefore reach the merits of

Frudden’s claim.

The PFA explained in an answer to an interrogatory that

it adopted the exemption because it “was consistent with

other uniform policies at schools around the country, and

would also make planning easier for the students and their

parents who had meetings immediately after school, so they

didn’t have to worry about bringing two sets of clothing.”

We conclude that these two interests—consistency with the

policies of other schools, and student and parental

FRUDDEN V. PILLING 19

convenience—are not compelling. They are self-evidently

less significant than interests the Supreme Court has

previously found to be compelling, such as combating

terrorism, Holder v. Humanitarian Law Project, 561 U.S. 1,

28–29 (2010), or preventing voter fraud, Burson v. Freeman,

504 U.S. 191, 198–99 (1992) (plurality opinion). We

therefore conclude, in applying strict scrutiny, that the

exemption for uniforms of other organizations violated the

First Amendment.

3. Our Disagreement with the Result We Are Required to

Reach

Though we are required to apply the law as articulated by

the prior panel in this case, we do not agree with it. In our

view, the prior panel failed to distinguish properly between

public and nonpublic fora. Just as important, it failed to

apply common sense.

The state “may limit expressive activity in nonpublic fora

if the limitation is reasonable and not based on the speaker’s

viewpoint.” See DiLoreto v. Downey Unified Sch. Dist. Bd.

of Educ., 196 F.3d 958, 965 (9th Cir. 1999). Unless a public

school opens up its facilities for “indiscriminate use by the

general public,” “no public forum has been created, and

school officials may impose reasonable restrictions on the

speech of students, teachers, and other members of the school

community.” Hazelwood School Dist. v. Kuhlmeier, 484 U.S.

260, 267 (1988) (internal quotation marks omitted).

The prior panel concluded that the constitutionality of the

motto “Tomorrow’s Leaders” was controlled by Wooley v.

Maynard, in which the Supreme Court struck down under the

First Amendment a requirement that New Hampshire drivers

20 FRUDDEN V. PILLING

display the statement “Live Free or Die” on their license

plates. We disagree with the panel for two reasons. First, the

required speech in Wooley was speech by driving-age adults

in a public forum rather than speech by students in the non-

public forum of an elementary school. Second, “Live Free or

Die” was a political, content-based statement; “Tomorrow’s

Leaders” is not such a statement.

According to the prior panel, the motto “Tomorrow’s

Leaders” is subject to strict scrutiny because its viewpoint

celebrates leadership at the expense of those who are

followers. Anodyne, feel-good statements such as

“Tomorrow’s Leaders” are common in public schools. A

number of mottos would be subject to strict scrutiny and

struck down under the panel’s rationale. What about a motto

“We Succeed Together”? Some students are loners. What

about “School Pride”? Some students are not proud of their

school. What about “Stand Tall”? Some students are short.

To subject such mottos to strict scrutiny makes no sense.

If mandatory school uniforms, including a motto

“Tomorrow’s Leaders,” are subject only to intermediate

scrutiny, we see no reason to subject to strict scrutiny an

exemption for uniforms for recognized organizations to

which students may belong. To jeopardize such a wide-

spread and inoffensive practice similarly makes no sense.

However, given currently governing circuit law, we

follow the holding of the prior panel.

FRUDDEN V. PILLING 21

B. Individual Defendants and Qualified Immunity

1. Waiver

Frudden contends that the Individual Defendants waived

their qualified immunity by failing to plead it in their Answer

to the Second Amended Complaint. We disagree.

Qualified immunity is an affirmative defense that the

government has the burden of pleading and proving.

Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992). In

their Answer to Frudden’s Second Amended Complaint,

Defendants’ Seventh Affirmative Defense stated that because

their “actions and/or omissions constituted the exercise or

performance of a discretionary function,” they were “entitled

to immunity.” While a more explicit invocation of qualified

immunity would have been preferable, any deficiency

(assuming there was one) was cured when the Individual

Defendants explicitly raised and argued qualified immunity

in their Motion for Summary Judgment. See Camarillo v.

McCarthy, 998 F.2d 638, 639 (9th Cir. 1993) (“In the absence

of a showing of prejudice, . . . an affirmative defense may be

raised for the first time at summary judgment.”).

2. Clearly Established Law

We apply a two-part analysis in qualified immunity cases.

Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir. 2016). First,

we “decide whether the facts that a plaintiff has alleged . . .

make out a violation of a constitutional right.” Pearson v.

Callahan, 555 U.S. 223, 232 (2009). Second, we “decide

whether the right at issue was ‘clearly established’ at the time

of defendant’s alleged misconduct.” Id. A right is clearly

established for purposes of qualified immunity only where

22 FRUDDEN V. PILLING

“[t]he contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.” Dunn v. Castro, 621 F.3d 1196, 1200

(9th Cir. 2010) (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987)). The two prongs of the qualified immunity

test need not be addressed in the order stated; we may

“exercise . . . discretion in deciding which of the two prongs

. . . should be addressed first in light of the circumstances in

the particular case at hand.” Pearson, 555 U.S. at 236.

For the reasons stated above, we conclude that the

Individual Defendants violated the First Amendment and that

they therefore fail the first prong of the qualified immunity

analysis. The remaining question is whether they satisfy the

second prong.

We begin with the motto “Tomorrow’s Leaders.” In

Jacobs v. Clark County School District, 526 F.3d 419 (9th

Cir. 2008), we upheld a public school uniform requirement.

We concluded that “allowing students’ otherwise solid-

colored clothing to contain a school logo—an item expressing

little, if any, genuine communicative message—does not

convert a content-neutral school uniform policy into a

content-based one.” Id. at 433. Applying intermediate

scrutiny, we upheld the uniform policy because it advanced

the important state interest of fostering conducive learning

environments for children, was unrelated to the suppression

of free expression, and left open ample alternative channels

for student communication. Id. at 435–38. The only

difference between the uniforms in Jacobs and those at issue

in this case is that RGES uniforms included as part of the

logo the motto “Tomorrow’s Leaders.”

FRUDDEN V. PILLING 23

Frudden and amicus argue that at the time Defendants

acted clearly established law under West Virginia State Board

of Education v. Barnette, 319 U.S. 624 (1943), and Wooley v.

Maynard, made it clear that they were violating the First

Amendment. In Barnette, the Supreme Court held

unconstitutional a law requiring public school students to

salute the flag and recite the Pledge of Allegiance. 319 U.S.

at 628–29. Relying on Barnette, the Court held in Wooley

that New Hampshire could not require its drivers to display

the state motto, “Live Free or Die,” on their license plates.

430 U.S. at 715–17.

While Barnette and the present case both involve public

schools, “Tomorrow’s Leaders” is not analogous to the

Pledge of Allegiance. The former is an anodyne phrase

printed on a shirt or sweatshirt, while the latter is a compelled

oral recitation pledging fidelity to national unity (in its

current form, to national unity “under God”). Further, while

Wooley and the present case both involve printed words, the

cases are not analogous. The motto “Tomorrow’s Leaders”

has little if any substantive content and was displayed on a

uniform only in a school setting. In contrast, “Live Free or

Die” has obvious political content and is publicly displayed

everywhere a vehicle is driven. Thus, it can hardly be

maintained that these two cases clearly establish that the

motto “Tomorrow’s Leaders” violates the First Amendment.

Stated otherwise, existing precedent had not “placed the . . .

constitutional question beyond debate.” Ashcroft v. Al-Kidd,

563 U.S. 731, 741 (2011).

The exemption for uniforms of other organizations fares

no better. In holding that the exemption required the

application of strict scrutiny, the prior three-judge panel

relied only on Carey v. Brown, 447 U.S. 455, 457 (1980), in

24 FRUDDEN V. PILLING

which the Supreme Court held that a statute prohibiting

residential picketing was unconstitutional because it

exempted “peaceful picketing of a place of employment

involved in a labor dispute.” The Court was troubled by the

fact that “[t]he permissibility of residential picketing under

the Illinois statute [was] dependent solely on the nature of the

message being conveyed.” Id. at 461. The prior panel

concluded that Carey controlled this case because RGES’s

uniform policy “favors the uniforms of certain youth

organizations over all other clothing that the students may

choose to wear.” Frudden II, 742 F.3d at 1206.

In Carey, the regulation at issue privileged particular

views in a public forum—specifically, streets and

sidewalks—where First Amendment protections are highest.

See 447 U.S at 460. In contrast, public schools are generally

non-public forums, see Hazelwood 484 U.S. at 267, and

public school students’ First Amendment rights are “not

automatically coextensive with the rights of adults in other

settings.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675,

682 (1986). Further, picketing by adults is strikingly

dissimilar from school children wearing a shirt or sweatshirt

with a motto such as “Tomorrow’s Leaders.” Carey thus did

not place “beyond debate” the issue in our case. Ashcroft v.

Al-Kidd, 563 U.S. at 741.

We therefore conclude that the Individual Defendants are

entitled to qualified immunity.

C. Institutional Defendants

The Parent-Faculty Association (“PFA”) and the Washoe

County School District (“WCSD”) are institutional rather

than individual defendants and therefore do not have qualified

FRUDDEN V. PILLING 25

immunity. Because the district court held that the motto

“Tomorrow’s Leaders” did not violate the First Amendment,

it did not reach the question of damages stemming from that

violation. It did reach the question of damages resulting from

the exemption for uniforms of other organizations,

concluding that the Frudden children suffered no actual

damages. But it reached that question only as a means to

avoid deciding whether the exemption violated the First

Amendment. On appeal, Frudden makes no argument about

the quantum of damages.

Under the circumstances, we conclude that the question

of damages for the two First Amendment violations by the

Institutional Defendants remains to be decided by the district

court. We remand for that purpose.

Conclusion

We affirm the district court’s grant of summary judgment

to the Individual Defendants and reverse the district court’s

grant of summary judgment to the Institutional Defendants.

We remand to the district court for further proceedings

consistent with this opinion.

The parties to bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and

REMANDED.