Littlefield v. Forney Independent School District

NOWLIN, District Judge.* Superintendent al Forney; and Keith Bell, Cleaver, Kenneth Doggan, Clarence KING, Judge: Chief Calvin, Jay Jacobs, Townsend, Jim Rick Plaintiffs-Appellants, individual students Walker, and David Members of the parents of Forney- students Board of Trustees (collectively referred District, Independent appeal School “Defendants”). hereinafter as grant summary judg- district court’s spring Forney, acting ment favor Defendants-Appellees pursuant to Texas Education Code District, Forney Independent School Keith § adopted 11.1622 a district-wide mandato- Bell, Cleaver, Kenneth Doggan, Clarence ry Policy applicable Uniform to its stu- Calvin, Jacobs, Jay Townsend, Jim Rick dents. The apparently Walker, David and Chester J. St. Clair. originated as a result of the efforts of reasons, For the following we AFFIRM. Superintendent Clair, General St. who ob- served the implementation successful I. FACTUAL AND PROCEDURAL policies employed in other Texas BACKGROUND Clair, school districts. addition St. Plaintiffs-Appellants1 are students and school board members and school officials parents of students who attend schools conferred with counterparts at other Forney Independent situated School public Texas schools and reviewed studies (“Forney”) District Forney, Texas. efficacy of school uniform policies. Plaintiffs-Appellants sued Defendants-Ap- by court, found As the district pellees asserting several constitutional challenges to mandatory school uni- St. Clair came to the conclusion that the (“Uniform policy form Policy” “Policy”) or implementation pro- of a school uniform * Texas, Judge la) Chief of the Western District of board independent The of trustees of an sitting by designation. district'may adopt school require rules that students at a school in the district to wear Littlefield, 1. Plaintiffs-Appellants Sissy are school uniforms if the board determines Littlefield, Odom, Becmer, David Joel Susan requirement improve that would Becmer, Becmer, Nicholas Jonathan Stan learning environment the school. at Bland, Bland, Bland, Glenda Jeffery Jennifer (b) adopts The rules the board of trustees Bland, Calvery, Calvery, Ashley Steve Greta designate funding must source Calvery, Ryan Calvery, Lenny Scott McKin- providing shall be used in uniforms for stu- ney, Opal McKinney, Beverly McKinney, Re- at the educationally dents school are who McLaren, McKinney, Virginia becca Natalie disadvantaged. Johnson, Napper, Napper, Tom Brandi Kevin (c) parent guardian A or of a student as- Penn, Napper, Napper, Mary Chelsea Haley signed to attend a at which students school Penn, Anderson, Anderson, Lynzi Drew Wil- required are to wear school uniforms Tapley, Tapley, liam Kaytie Norma Elizabeth exempted choose for the student to be from Woods, Woods, Tapley, Cindy Benja- Dustin or to to a Woods, Woods, transfer school Woods, min Chad Aaron Tam- required which students are Winner, Winner, to wear Winner, my Ryan Mark Dan- space uniforms and at which is available if Ingram, Clipp, iel Clipp, Cliff Kim Michael parent guardian Lamberth, provides or Law, written Clipp, Cash Joe Don Brad that, Law, statement as determined the board Lowery, David Lowery, Vinita trustees, religious states a fide or bona Lowery. Madeline philosophical objection requirement. to the (Vernon Section 11.162 of the § Education Code Texas See Tex. Educ.Code Ann. 11.162 provides 1996). part: in relevant research, appropri- and skirts must be of would, his The shorts according to

gram (no than three length effects on ate size and shorter following have the beneficial knee). a whole: system Policy pro- and the as the students above the inches performance, alia, denim, instill improve of, student wearing hibits the inter self-esteem, self-confidence, in- foster leather, suede, vinyl, any clothing or attendance, disciplinary decrease crease affiliation, could con- suggests gang referrals, drop-out rates. and lower contraband, or could create distrac- ceal are also Dist., clothing tion. Certain other items Forney Indep. Sch. See Littlefield sandals, (N.D.Tex.2000). banned, flip- open-heeled such F.Supp.2d overalls, boots, parents flops, military athletic sought input from Forney also Policy. In March and sleeve- proposed pants, spandex, baggy clothing, regarding home survey Policy regu- was sent a “take-home” less shirts. Uniform middle, junior-high per- elementary, logos the sizes of manufacturer lates parental adoption in order to elicit clothing. school students mitted on Prior to the Policy. proposed Uniform approval of the Policy, Forney of the had a dress code that, thirty- The district court found clothing prohibited types certain responded, parents who percent unsafe, immodest, four in- deemed or otherwise sixty percent group of that approximately process. imical to the educational For- mandatory in favor of uniforms. was Forney asserts that the Uniform style two hall” ney also conducted “town spirit and adopted promote was school subject. At these meet- meetings on values, promote and “to decorum parents provided opportuni- were ings, (and thereby the notion that school is ty proposed to comment on work), place promote of order and re- Policy. authority, decrease spect for socioeco- information, the For- As a result of this tensions, attendance, nomic and to increase ney findings Board made factual School drop Forney to reduce out rates.” improve the school uniforms would in- Policy asserts that it intended the “to schools, at the learning environment safety by reducing gang crease student April adopted on the Uni- drug activity related as well as the Policy at The Uniform form now issue. bringing weapons to likelihood of students 2,500 in applied to all each Policy students by allowing school undetected and teachers and was of the schools within the district readily distinguish to more stu- implemented beginning at the of the 1999- dents from outsiders.” year. 2000 school Poli- comply Failure to with the Uniform disputed Policy requires The Uniform action, in cy disciplinary results which polo-type to wear color students solid in expulsion. could lead to As stated shirts, collars, oxford-type shirts with or Handbook, Forney District-Wide Student in of four colors blouses with collars one blue).3 non-exempt “if in (white, student attends school red, yellow, navy or policy, violation of this uniform the follow- long-sleeved be or shirts either short in ing disciplinary steps will taken or- must be all times. be but tucked Stu- dents must also wear either blue or khaki der: ^[1] the student will placed immedi- shorts, skirts, campus, pants, jumpers. ately or in isolation on the either colored slight covering secondary 3. There are between the schools. These differ- differences ences, however, dispo- mandatory policies covering pri- are not relevant to the appeal. mary policy of this and intermediate schools and the sition parent appropriate until can bring The district court found that parents seventy-two day, or for the entire students clothing sought exemptions whichever comes first; ^[2] the student will be sent to from compliance with the Uniform Policy, exemptions of which twelve were granted.6 Adjustment [Behavioral BAM Modifica- fewA of the Plaintiffs-Appellants were for a minimum of days tion] for the if the lowing the two week BAM assignment, the refuses to principal second BAM student infraction; for a maximum will comply, pursue still ^[3] refuses due student if the of two process student still comply will remain weeks; for AEP fol- ^[4] within the philosophical some nied granted exemptions from the Policy. Most students who had exemptions type group uniform in the or religious because based of students who were grounds were de- they past. objections had worn Several Plaintiffs-Appellants unsuccess- Program] expul- [Alternative Education or fully sought exemption from the Uniform sion.” Policy through established administrative In compliance with of channels. Other Plaintiffs-Appellants re- 11.162(c), Texas Education § Code respond fused to questionnaire to the “opt-out” includes pro- an based on personal constitutional or objec- whereby parents vision and students with tions. Plaintiffs-Appellants then brought “bona religious philosophical fide” ob- § suit under 1983 seeking U.S.C. de- jections to the wearing of a uniform can claratory injunctive relief and dam- apply exemption for an Policy. to the ages. opt-out provision requires parents to re- Relevant appeal, to this Plaintiffs-Ap- quest Application an Exemption fill pellants bring separate, three substantive out a questionnaire designed gauge challenges constitutional to the Uniform sincerity of the parents beliefs of those First, Policy. the sfeide-nf-Plaintiffs-Appel- objections.

who questionnaire assert This subject lants to the Uniform Policy assert asks partici- whether student has ever compulsory wearing of uniforms pated any of a number of activities that violates the First Amendment because the would required him or her to wear a wearing of uniforms both form of granted uniform.4 Families exemptions speech, that, coerced compels it them to from the Uniform Policy reapply must express they may ideas which not year. each A three-step grievance and, agree, time, at the same it is an system was created to address issues aris- infringement expression, on free in that it ing opt-out procedure.5 from the prevents them from freely expressing par- example, questionnaire 4. For designated asks if a with a administrator to discuss the has ever partici- student worn a to Policy objection. and the of the nature These pate scouts, girl boy in activities such as hearings by "Level I” are conducted the cam- scouts, teams, organized sports non-school pus principal principal. or an assistant Level teams, band, choir, school-sponsored sports hearings may appealed I to a "Level II” drill or a team whether student has ever worn hearing hearings at the district level. Level II business, church, a uniform at to work at are to be conducted Defendant St. Clair or addition, at a activity. church-related deputy designated by him. A administrator questionnaire parents asks whether the hearing final "Level III” is available before participated might ever in activities that re- the School Board Trustees. quire a uniform. requesting exemption opt-out exemptions Parents an 6.Several of these from the were Policy required for granted their children are to meet for medical reasons. admissions and interrogatories, convey. swers they do wish messages ticular affidavits, any, if file, with the together on Second, parewi-Plaintiffs-Appellants issue as genuine there is no show that compulsory that the claim moving par and any material fact right to con- “fundamental” their violates as a matter of judgment ty is entitled of their education upbringing trol the ” Catrett, 477 v. Corp. U.S. law.’ Celotex Fourteenth in violation children L.Ed.2d 265 317, 322, family-Plain- Finally, four Amendment. (1986) 56(c)). The (quoting seeking relief Fed.R.Civ.P. (parents tiffs-Appellants showing children), moving party bears burden sought ex- who of their behalf an absence court that there is the district Policy on reli- the Uniform emption from nonmoving support par of evidence existing opt- that the allege gious grounds, 106 S.Ct. 2548. case. See id. ty’s freedom to restrict their procedures out fails to meet this moving party “If the violation beliefs religious exercise denied, burden, must be the motion initial First Free Exercise Clause response. of the nonmovant’s regardless opt-out question- because Amendment does, however, meet this If the movant impermissi- hearing procedures naire beyond burden, go must nonmovant reli- of their substance bly delve into the specific designate facts pleadings Further, family- four these gious beliefs. issue for genuine there is a opt- showing that that the contend Plaintiffs-Appellants Risan, Tubacex, v. Inc. trial.” established M/V favor certain procedures out (5th Cir.1995). dispute “A religions F.3d other expense of religions at the ‘if the evi genuine material fact is over a Clause the Establishment and thus violate jury that a could dence is such reasonable of the First Amendment. nonmoving par for the return verdict to dismiss filed a motion Defendants ” Smith, (quoting at 911 ty.’ Procedure Rule of Civil under Federal Inc., 477 Liberty Lobby, Anderson 12(b)(6) judgment summary for and moved L.Ed.2d 202 immunity. district qualified based on (1986)). law determines The substantive dismiss as the motion to court treated Anderson, are which facts material. grant- summary judgment and motion 248, 106 477 U.S. at in favor of Defen- summary judgment ed dants, vi- concluding that no constitutional III. FIRST AMENDMENT in this The district occurred case. olation EXPRESSIVE CONDUCT immunity qualified court did reach not CLAIMS issue. protects First appeal grant timely

Plaintiffs expression, but only written verbal summary judgment. and conduct that constitute symbols REVIEW II. STANDARD OF Tinker v. Des speech.” See “symbolic Dist., 393 Indep. Cmty. Sch. U.S. Moines grant court This reviews 733, 503, 505-06, 21 L.Ed.2d 731 89 S.Ct. novo, viewing the de summary judgment explained Supreme Court As to most light in favorable evidence in Texas v. Johnson: Brenoettsy, 158 See Smith v. nonmovant. rejected the view an (5th Cir.1998); we have 908, see also Tol While

F.3d 911 604, variety of conduct Indus., Inc., apparently limitless son v. Avondale Cir.1998). speech per- (5th can be labeled whenever “Summary judgment 608 in the conduct intends engaging an- son pleadings, depositions, ‘if proper is

283 idea, an thereby express rights to we constitutional to freedom of acknowledged may speech expression that conduct be suffi- or at the schoolhouse commu- ciently gate”), imbued with elements of with Hazelwood Sch. Dist. v. Kuhl meier, scope 260, 266, nication to fall within the 562, 484 U.S. 108 S.Ct. 98 (1988) (“A First and Fourteenth Amendments. L.Ed.2d 592 school need not tolerate speech student that is inconsistent 397, 404, 2533, 491 109 S.Ct. 105 U.S. mission, with its basic educational even (1989) (citations L.Ed.2d 342 and internal though government could not censor omitted). In quotations evaluating wheth- (cita speech similar outside the school.” particular possesses conduct er “sufficient omitted)), tions and internal quotations implicate communicative elements” Fraser, and Bethel Sch. Dist. No. v. 403 protections, First Amendment courts must 675, 682, 92 convey par- ask whether intent to “[a]n (1986) L.Ed.2d 549 (recognizing present, message ticularized was and ... rights public First Amendment school likelihood that the great [whether] the was automatically students “are not coexten message by would be understood those rights sive with the of adults in other (alterations origi- who viewed it.” Id. in schools, therefore, settings”). Public while nal) (quoting Spence Washington, v. 418 responsible inculcating for the values of 405, 410-11, U.S. L.Ed.2d necessary the First Amendment for citi (1974)). zenship, are not themselves unbounded fo protection the First for practicing rums those freedoms. depends only on whether expressive, student-Plaintiffs-Appel the conduct but also on the (referred lants expression context which that takes this section as the “Students”) arena, place. separate raise two public the free free ex expression pression arguments based on the First rights of students are balanced Amendment.7 The Students claim that the by corresponding furthering interest of Policy the educational acts as a form of “coerced mission schools. Com Uniform Tinker, pare speech” 393 U.S. at 89 S.Ct. 733 that it forces the Students (recognizing convey state-approved that students do not “shed message that stu- Littlefield, 7. The district court found that F.Supp.2d the Plaintiffs- See at 688. We Appellants requisite had established the Arti- agree. parents may challenge Students and injury challenge Policy. cle III the Uniform public unconstitutional actions in the schools The district court stated: directly e.g., affect the students. Sch. [T]he I.S.D. Student Uniform Abington Township Schempp, Dist. specifically provides per- that if a student L.Ed.2d 844 comply sists in his refusal to with the uni- (1963) ("The parties here are school children policy, form his ultimate sanction is the parents, directly and their who are affected program expulsion. alternative education against practices the laws and which their Thus, apparent penalty it is that the of ex- complaints are directed. interests These pulsion imposed from school surely give parties standing suffice to who, reason, those students for whatever course, complain.”). Of as will be discussed prescribed refuse to wear Moreover, uniform. text, in the each subset of the Plaintiffs- infra remedies, Plaintiffs seek includ- "Parents,” ("Students,” Appellants and the ing damages, injuries which have al- religious objections) four families with has ready Accordingly, occurred. the Court standing only challenge particular legal the concludes that Plaintiffs have established a claim for which that subset can demonstrate particularized, injury, imminent or actual causation, injury, redressability. and purposes for of Article III. 284 2727, 405, 409, 41 L.Ed.2d send,8 94 S.Ct. Wooley see v. U.S. do not wish

dents 1428, 705, 714, (1974), 97 S.Ct. cannot be considered U.S. and thus 430 842 Maynard, (1977); Bd. West Va. prohibited 51 L.Ed.2d expression restraint on prior a 633, Barnette, 624, 319 U.S. Educ. v. First Amendment.11 See v. by the Karr (1943), that 1178, and 87 L.Ed. (5th Schmidt, 609, F.2d 613-14 Cir. Policy “prior re- acts as the Uniform banc).12 1972) (en from the Students by preventing straint” then, question, is whether The threshold message at all expressing any freely pro expression at issue is entitled the (other the state- attire than through their under the First Amendment. tection v. message).9 See United States approved and agreed court with Defendants O’Brien, district mandatory Policy that 20 L.Ed.2d held “expressive pro implicate conduct” did that the choice argue Defendants Lit by the First Amendment. See tected clothing expressive is not con of student F.Supp.2d (relying at 694 tlefield, 108 Amendment, First protected by the duct Spence, thus, any regulation10 rational of such 613-14, Karr, 460 F.2d at to find student con nonexpressive conduct should survive protected expression clothing not to be also con scrutiny. Defendants stitutional Amendment). However, the First under uniforms wearing that of school tend to the district court’s issuance subsequent convey sufficiently particular does not court, Canady v. opinion, of its this coerced message to be considered ized Board, explicitly ad- Parish School Washington, v. 418 Bossier speech, Spence see standard, scrutiny. courts look speech” argument, Under this Regarding "coerced sis 8. mandatory regula argue relationship that uniforms the Students a rational between for particularized message that convey a governmental a conceivable interest. tion express, namely that Austin, district wishes to school City Prop. Operating Co. See FM respect authority for the students have (5th 1996). 174-75 Cir. administrators, teachers and pride, support the school and civic school argue Amend- Defendants the First argue this mes- policies. The Students only protects particularized expression ment officials, by sage students, understood school is also message only particularized and that public, which is the exact and the convey wearing by non- the Students wish to Policy adopted why was reason the Uniform "individuality,” but that clothes is (or purpose). have no else it would rational definition, individuality, by almost is not suffi- adduced evidence from stu- The Students also protected by ciently particularized be depositions did not that these students dent Further, argue Amendment. Defendants First message by convey the intended For- wish to people at evidence that other that there is no Thus, ney. the Students conclude that man- likely would be to understand stu- convey datory coerce students to uniforms "individuality.” message of dents' message, Forney wishes particular which they express, oppose. them to but which Karr, rejected a constitutional this court "prior argument, restraint” 9. As to the public challenge portion school dress to a argue Poli- Students that because the Uniform regulated length of hair code that express cy clothing precludes the use of boys. 460 F.2d at 613-14. The court specific par- any message matter how —no long to wear determined that the decision do wear that school children ticularized —and expressive activity protected hair is not cultural, clothing political, and so- that sends ("[W]e at 614 think First Amendment. See id. messages, a content- cial this restriction is protection of inappropriate that it prior speech. based restraint on wearing to the First Amendment extended hair.”). long contend that this court should 10. Defendants rational-ba- review the Uniform under implications Amendment opinion the First undoubtedly protect- dressed or cause is mandatory of a uniform policy school ed under the First Amendment if the cast on district doubt court’s reason- message likely to be by understood (5th Cir.2001) ing. those it.... Finally, intended view (disagreeing with the district court in Lit- in particular students often choose their that the rationale Karr could be tlefield attire with the signify intent to the social attire). applied to students’ choice of group to which they belong, partic- their ipation activities, in different and their Canady, In this court resolved a First general attitudes society toward challenge Amendment mandatory a policy adopted school uniform environment. While the message the Bos- sier School Board in students intend to Parish Bossier Par- communicate about ish, their policy identity Louisiana. The Bossier uniform may interests be of a adults, involved similar one little value to some it has a con- several colors of [ejffect, collared shirts and a simi- siderable whether positive or lar choice between blue or khaki pants. negative, a young person’s on social de- addressing question the threshold of ex- velopment. pression, this court assumed without decid- (citations omitted). Id. at 440-41 The Ca- ing “an individual’s choice of attire nady court went then on to state that may ... be endowed with sufficient levels expression while “this sort of may not of intentional expression to elicit First convey particularized message to war-

Amendment shelter.” Id. with an Faced rant First protection Amendment in every almost identical First Amendment chal- instance, we cannot declare expres- lenge to a policy, this court rea- sion of one’s identity and affiliation to soned: unique groups social through choice of A person’s clothing choice of is infused clothing will never protected amount to with expression intentional many on lev- speech.” Id. 441.13 Assuming the First instances, els. In some clothing func- Amendment applies the students’ choice pure speech. tions as A student expression, applied the court then jackets to wear choose shirts or First Amendment framework of United messages written supporting political O’Brien, States v. important candidates or social issues. (1968), 20 L.Ed.2d 672 relating printed clothing Words qualify expres- content-neutral restrictions on pure speech protected and are under the activities, sive to hold that the Bossier First Amendment.... Clothing may mandatory Parish policy school uniform symbolize heritage, religious ethnic did not violate the First Amendment. beliefs, political and social views. For regularly purposes opinion,

Individuals use of this clothing express opinions.... ideas and follow reasoning Canady The we choice to wear clothing symbol as a of an court14 and without again, assume decid- qualified court further clothing may its conclusion: choices of have sufficient qualify communicative content to as First We do not every conclude that choice of activity. clothing expresses particularized mes- Canady, 240 at 441 n. F.3d sage, judgment and we make no as to the type clothing necessary extent to com- Canady only "prior 14. At issue was re- message However, municate discrete order to straint"-type argument. the as- protection. afford First Amendment Our sumption clothing, that student and thus the analysis simply acknowledges Policy, implicates expressive certain conduct expression” “prior applies to restraint”/“free First that the

ing, 443. Canady, 240 F.3d at arguments. in the implicated conduct expressive the However, ap- Policy. mandatory Uniform concluding difficulty in have little We test, that the hold we the O’Brien plying constitu- Policy passes the Uniform that the First not violate Policy does Uniform the stan- scrutiny under O’BHen tional Amendment. that, First, question no there is dard. O’Brien, law, have the Supreme the In Defendants pursuant to state to framework analytical an school uniform pass mandatory created a power Court to on ex § restrictions content-neutral 11.162 evaluate policy. See Ann. Tex. Educ.Code held that 1996).15 The Court (Vernon pressive activities. ‘nonspeech’ elements and ‘speech’ “when Second, educational improving the course of con in the same are combined important an and undoubtedly process is important governmental duct, sufficiently Forney and the interest of substantial nonspeech ele regulating the

interest in at See Canady, school board. limitations on justify can incidental ment 271-72, Kuhlmeier, at 443; see also freedoms.” 391 U.S. at First Amendment Policy was The Uniform S.Ct. 562. to O’Brien Applying 1673. performance, student adopted improve policy at is challenged governmental self-esteem, self-confidence, foster instill consti sue, Policy will survive the Uniform attendance, disciplinary decrease increase (1) within the if it is scrutiny tutional referrals, drop-out rates. See lower and (2) power government, constitutional Such F.Supp.2d at 686. Littlefield, 108 gov important or substantial it furthers an health, safety, and order of in the interests (3) interest, is interest unre ernmental government schools are sufficient public expres of student suppression lated to the the Stu interests under O’Brien. While (4) on sion, incidental restrictions and failed to that Defendants have argue dents more activities are no First Amendment further any of need to produce evidence that interest. necessary to facilitate than is are sat Forney, in we improvements these 1673. The O’Brien See id. record, that, have this Defendants isfied the Stu applicable both standard be requisite connection established see speech” arguments, dents’ “coerced Policy and the stated 97 tween Uniform Maynard, 430 U.S. Wooley v. Forney schools.16 (1977), improving interests in L.Ed.2d 752 and permissible to assume we find it speech” message, that "coerced chal- applies to the text, fact, expression involved was intentional that the in the lenge. as discussed In infra and, thus, logic follow the particularized wear a requirement that all students cer- speech evaluating Canady the coerced of to further type of uniform order tain however, Canady, we need As in message claim. particularized of school certain do not decide the issue. arguably stronger justification to district is and, thus, expressive potential conduct find Plaintiffs-Appellants that concede Canady apply The Students O'Brien. Code is con- § the Texas Forney 11.162 Education officials of set affidavits from forth Policy stitutional. was intended ex- image. In particular de- press institutional Policy Forney included School Board testimony, Forney position school officials was, findings by the Board purpose the uniform stated improve the wearing uniforms alia, school would convey respect for “the values inter addi- learning Forney.” district. "City environment schools” tion, poli- Thus, officials evaluated Forney implemented the Uni- because This evaluation school districts. conveying cies in other with the intention form recognized, Finally, that, As has been well federal courts we are satisfied because of decide, restriction, defer to boards should school limited nature of the “the bounds, within constitutional what consti- incidental restrictions on First Amend- appropriate tutes and dress in ment activities are no behavior more than is neces- public Canady, sary schools. 240 F.3d at [Forney’s] facilitate interest.” See. (“[I]t 441, O’Brien, job is not the of federal 391 U.S. at 88 S.Ct. 1673. to determine way pertain courts the most effective The restrictions only to student our youth.”); during to educate nation’s see also attire school hours and do not af- Fraser, 478 U.S. at fect other means of communication. Again, following Canady,

Third, the Students have not established Although students are restricted from issues of material fact to demon sufficient wearing clothing of their choice at strate that the Defendants’ interest en school, students remain free to wear acting the Policy suppress Uniform was to they what want after school hours. Stu- O’Brien, expression. 391 U.S. at dents express still their views 88 S.Ct. 1673. The record demonstrates through other during mediums Policy adopted that the Uniform was day. school legitimate other reasons unrelated to the important does not bar the “personal suppression of expression. student For among intercommunication students” example, Forney asserts that the Policy necessary to an effective educational implemented safety was to increase process. providing a means to differentiate Tinker, Id. at 443 (quoting students from might nonstudents who en 733). Thus, addition, Forney campuses. ter In we hold that Policy Uniform Policy was intended survives First Amendment to decrease scrutiny and, under disparities socioeconomic and tensions the O’Brien test be- be students, (be tween cause there are genuine increase no issues of mate- attendance identified), regarding rial fact easily application cause truants would be test, O’Brien we affirm gang drug-related judgment reduce activity, as well as the district court. the likelihood of students bring ing weapons to school undetected.17 Fol IV. PARENTAL RIGHTS UNDER lowing Canady, Forney’s pur we hold that THE FOURTEENTH pose in enacting the Uniform cannot AMENDMENT attempt be deemed an to suppress or speech. coerce Canady, 240 F.3d at pro The Fourteenth Amendment Cf. (“The purpose School Board’s persons for en hibits from depriving States “of acting life, the uniform policy liberty, is to increase property, pro test without due Const, scores and disciplinary problems XIV, reduce cess of law.” See U.S. amend. throughout system. pur § the school Supreme This 1. As the recently Court reaf pose is in no way suppres related to the long recognized firmed: “We have that the sion speech.”). Clause, of student Amendment’s Due Process like its attempt Further, made disciplinary was in an to find solutions to dress code referrals. improve performance instances, student and further the campus three four nonstudents on interests discussed in the text. intercepted were and asked to leave the grounds, part, they because were fact, Forney has submitted evidence non-Forney identifiable students. campuses that three out of the four had an increase in attendance and a decline in non- ents”) right to control their argue counterpart, ‘guarantees

Fifth Amendment a fundamental children’s education process.’ Clause their than fair more component heightened constitutional a substantive entitled to right includes against protection heightened Parents claim ‘provides Specifically, the protection. fun with certain interference government inter- uniforms mandatory school that the ” liberty interests.’ rights damental to teach parental rights with their fere Granville, Troxel own guided by one’s children to be (2000) 2054, (plurality L.Ed.2d 49 147 S.Ct. decisions, to under- making in conscience v. Washington Glucks opinion) (quoting appropriate of importance stand the 2258, 719, 720, 117 702, S.Ct. 521 U.S. berg, attire, to understand the grooming (1997)). 772 L.Ed.2d 138 individuality, and one’s own importance of liberty individuality of others. The respect “the fundamental One of is the by the Court of recognized implementation argue interests” that Parents care, custody, in the parents “interest of par- that presumes uniforms mandatory at See id. of their children.” control unwilling incapable or ents are either (“[I]t now be 65-66, cannot 120 2054 S.Ct. of their children. best interests act in the of Due Process Clause that doubted right that this the Parents assert Because protects the Fourteenth “funda- recognized been as of has “control” deci parents of to make right fundamental 65, Troxel, mental,” at U.S. 120 see 530 care, custody, and concerning the sions 2054, contend that the Parents S.Ct. children.”); Meyer see also of their control analysis must be “strict-scrutiny”18 level 390, 401, Nebraska, 43 S.Ct. 262 U.S. v. Policy. the Uniform applied to (1923) 625, (recognizing L.Ed. 1042 67 pro contrast, due protected by in that while liberty argue, interest Defendants “to con parents right includes the liberty cess parents may have fundamental own”); v. Pierce of their trol the education upbringing, in children’s this their interest 534-35, Sisters, 510, 45 Soc’y 268 U.S. role in usurp cannot state’s interest (1925) 571, (recogniz L.Ed. 1070 69 public at determining appropriate behavior parents guard liberty of ing that “the schools, including determining the role of up “to right includes the direct ians” in the district. dress appropriate codes of children under and education bringing notwithstanding argue Defendants Massachusetts, control”); Prince v. reaffirmation of Supreme recent Court’s 158, 166, 88 L.Ed. 64 S.Ct. 321 U.S. rights parental rights fundamental (1944) a con that there is (recognizing Troxel, any way that decision does parents directing stitutional interest to frustrate basic parents’ rights extend child”). and nurture of the “custody, care regu- reasonably required to rules system. Defendants late the educational parent-Plaintiffs-Appellants therefore, that a rational-relation- (referred argue, as the “Par- to in this section govern- compelling narrowly tailored to a provides “height- are The Due Clause Process Flores, against government interfer- v. protection interest. See Reno ened mental rights 292, 302, lib- ence with fundamental 123 L.Ed.2d certain Glucksberg, Washington erty interests.” (1993) process (reaffirming that due "forbids infringe certain 'funda- government to actions L.Ed.2d 772 Government all, ... unless liberty interests at mental’ exercise of those fundamental that burden the narrowly infringement tailored to serve a liberty subject to strict rights interests are interest”). compelling state only they scrutiny upheld when and will be ship/rational-basis19 69-70, test is the appropriate 120 S.Ct. 2054. Supreme While the judge standard to the school Uniform Poli- Court in recognized Troxel that there ex- cy at issue. ists a right fundamental parents to di- rect their children’s it upbringing, failed to

The district court agreed with Defen- articulate a judicial standard scrutiny applied test, dants and a rational-basis applied.20 See id. 120 S.Ct. 2054 concluding Forney’s (Thomas, J., (“The concurring) opinions of infringe did not the Parents’ fundamental plurality, Kennedy, Justice and Justice right control the rearing and education recognize Souter such a right, but curious- of their children. Littlefield, ly none of them articulates the appropriate F.Supp.2d at 703. The district court re- review.”). standard of jected argument the Parents’ that the Su- preme Court’s determination in Troxel— The dispositive question at is that the Due protects Process Clause sue is whether the sweeping statements of fundamental right parents of to make deci- plurality opinion the in Troxel regarding care, sions concerning the custody, and the “fundamental” parents “interest of in control of their children —could be read to care, the custody, and control of their chil complaints cover about a school Uniform dren,” see at 65, 2054, id. man (“The Policy. See id. at 702 fundamental a date strict scrutiny standard of for the right of filiation and companionship with Parents’ Fourteenth Amendment chal children, one’s Supreme which the Court lenge to the Policy. We do not Troxel, in examined entirely is an different read Troxel to a create fundamental right balance of interests right par- from the of parents to control the clothing their ents to send their public children to a public and, children to thus, wear schools school in clothes of their choosing.”). own instead follow eighty years almost of pre agree We with the impressively reasoned cedent analyzing parental rights in the of decision the district court on this issue. public context of education under a ration Troxel, In the Court struck a down al-basis standard. Washington State statute allowed “any person,” including Supreme Before the grandparent, Court’s Troxel petition opinion, time, for visitation the rights any if Court had addressed the issue it was in parental the best rights public interests of the of in child. schools in three 63, See U.S. at major opinions. First, 120 S.Ct. 2054. The in Meyer v. Ne- braska, Court found the statute offensive to the the Court held unconstitutional parental rights of the mother in that it law that forbade schools from teaching unconstitutionally interfered with foreign the languages to students below the right to mother’s make decisions concern- eighth grade, applying equivalent the aof ing the upbringing of her child. See id. at 390, rational-basis review.21 See 262 U.S. supra then, 19. exists, formulation; See note 10. rights] yet in broad restraint, courts must use considerable in- 20. agreement The Court also failed to reach cluding careful adherence to the incremental parameters right on the at issue. See given by precise instruction par- facts of Troxel, 78, (Souter, 530 U.S. at 120 S.Ct. 2054 cases, they give ticular as seek to further and J., ("Our concurring) cases ... have not set precise right.”). more definition to the out protected exact metes and bounds parent of a relationship interest in the "equivalent” 21.We use the term because child.”); his see id. at Meyer S.Ct. 2054 both and were decided Pierce before J., ("The (Kennedy, dissenting) principle Supreme adopted [that tiered-scrutiny Court its protects parental Fourteenth Amendment analysis. method of and providing in the state interest both 67 L.Ed. 1042 396-97, system education public regulating conclude a state (1923) (“We are constrained controlling a arbitrary, parental interest applied is and the the statute any upbringing and education. religious relation to end child’s reasonable without (em- 213-14, the state.” As the competency of id. at S.Ct. See within added)). Supreme Court held reasoned: in this case phasis district court protects Fourteenth Yoder, import the full Understanding home, marry, “to establish right an- parental rights which refined 399, 43 Id. at up children.” bring Pierce, is critical Meyer nounced presented analyze the claims properly later, Society in Pierce years Two Yoder, Su- case. present in the Sisters, down a state law struck the Court Court, reaffirming gen- preme while sending their from parents prohibiting parental rights are notion that eral school, again private utilizing children due liberty under the interest protected test. of a rational-basis equivalent “high re- clause, recognized process 510, 530-31, 45 S.Ct. regulatory power sponsibility” and Court invalidated L.Ed. public education. the state matters “unreasonably inter- because it statute Furthermore,, fundamental reli- while liberty parents with the fer[ed] from parents practices excuse gious upbringing direct the and guardians sec- policies, complying with educational their control.” children under of education are in- policies to such objections ular 534-35, (emphasis add- 571 45 S.Ct. Id. compliance. to avoid sufficient ed). (emphasis at 699 Littlefield, F.Supp.2d 108 Yoder, v. members Finally, Wisconsin added). on to state Court went The Yoder and the religion Amish the Old Order of life, way of however virtuous that “[a] ar- Church Amish Mennonite Conservative admirable, interposed as a may not be mandatory attendance be- school gued of regulation state barrier reasonable rights their violated eighth grade the yond purely if secular it is based on education un- Fourteenth under the Yoder, 215, 406 U.S. at considerations.” Free First Amendment’s Exercise the der added).22 (emphasis 92 1526 205, 207, 92 S.Ct. See Clause. Thus, recognized: court as the district Supreme 1526, L.Ed.2d 15 32 more than a employed the Court “[w]hile that, to the applied it agreed as Court with reference to rational basis standard Amish, unconstitutional. law was the state clause, free exercise First Amendment the 234, Yoder was id. at See process of clear that due interest it is Exercise on the Free based decided and edu- parents upbringing to direct Clause, the discussion about but it informs alone, children, standing of their cation paren- regarding balancing of interests re- than rational-basis warranted no Fourteenth more under the rights implicated tal F.Supp.2d at 699. Littlefield, 108 acknowledged view.” The Court Amendment. by this claim the nature revealed applied exercise striking down the statute record, Amish, merely a reasonable rela- applied more than Supreme Court competency purpose within tion to some basis review stricter standard rational than validity required to sustain of the State is parental were combined because the interests Yoder, the First under the State's 406 See with free exercise interests. (citations 233, ("[W]hen quota- and internal Amendment.” inter- U.S. at 92 S.Ct. 1526 omitted)). a free tions parenthood combined with ests of are

291 such, (7th 680, As the district court concluded that 690 Cir.1994); Murphy Arkan- Pierce, Yoder, Meyer; together, taken sas, 1039, (8th 852 F.2d Cir.1988); support argument that a rational-basis Fellowship Baptist Benton, Church v. appropriate review is the standard in this (8th Cir.1987). F.2d These cases This case. conclusion is accord with support the determinations in Meyer, other circuit appeals courts of that have Pierce, and Yoder that a rational-basis test issue, pre-Troxel. addressed is the appropriate level of scrutiny for Herndon v. Chapel Hill-Carrboro City Bd. parental rights in public school con- Educ., (4th 89 F.3d 177-79 Cir. text. 1996); Dist., Inmediato v. Neck Rye Sch. (2d Cir.1996). Applying test, the rational-basis we conclude that the Uniform Policy is Troxel change does not the above rationally related to the state’s interest in reasoning in parental the context of rights fostering the education of its children and concerning public education. While Par furthering legitimate goals improv ents have a right fundamental in the ing student safety, decreasing socioeco children, upbringing and education tensions, nomic attendance, increasing right this does not cover Parents’ ob reducing drop-out Therefore, rates. we jection public to a Policy. school Uniform affirm the district court’s summary judg has long recognized It been parental ment determination that the Uniform Poli rights are not public absolute in the cy does not violate the Parents’ Four and can subject context to reasonable teenth Amendment rights. See, regulation. e.g., Runyon v. McCrary, (1976) L.Ed.2d 415 (recognizing paren no V. FREE EXERCISE CLAUSE right tal private educate children in AND ESTABLISHMENT segregated academies); Marshall, Kite v. CLAUSE CLAIMS 1027, (5th Cir.1981); 661 F.2d 1029 see We find no in merit family-Plaintiffs- the Dist., also Swanson v. Indep. Guthrie Sch. (referred Appellants’ (10th this 694, Cir.1998) section as F.3d 698 (recog “Families”) the claims under the Free Ex- nizing that cases this area establish that ercise and the “parents simply Establishment do not Clauses of have constitution al the First right to appeal, control each Amendment.23 On every aspect and the of their children’s Families do not challenge and the education oust the constitution- state’s authority ality of subject”); over Texas Education Code Hot, Prods., Brown v. Sexy Inc., 11.162(c),24 § & focusing instead on appli- the Safer (1st 525, Cir.1995); Fleisch cation of “opt-out” procedures the by the v. (hereinafter Dirs. Sch. Dist. 15 F.3d Defendants referred to as the fresser of Only children) (parents (the four families and Kaytie Tapley "Tapleys”), and David and standing bring have Article III the Free Lowery daughter Vinita and their Madeline claims, Exercise and Establishment Clause see (the Lowery "Lowerys”) (collectively the supra only note because these four families "Families”). standing analysis As the for the sought exemption from on Free Exercise Claim and the Establishment religious grounds. Virgi- These families are: differ, Clause standing Claim we address daughter nia McLaren and her Natalie John- inquiry for each claim at the outset of each (the son family), Mary "McLaren/Johnson” analytical section. See notes 25 & 31. infra Lynzi Penn her children and Drew (the family), Anderson Wil- "Penn/Anderson” supra 24. See note 2. daughter liam Norma Tapley and their justi- not be need applicability prop- general of court The district policy”). “opt-out interest compelling governmental by fied First these erly dismissed opinion. incidental effect of well-reasoned if the law has in its even challenges F.Supp.2d practice.”). at 703-08. particular religious Littlefield, burdening the district court agree We infringes face, policy en opt-out neither opt-out policy its

Forney On religion nor general exercise of free and of Forney the families’ is neutral acted the Establishment Clause. persons to all applies violates in that it application, attend might wish to who Exercise

A. Free Claim25 Policy. opt-out of the Uniform choose to of Free Clause opt-out poli Exercise that the parties agree All Amendment, has been and, which the First inhibit religion not enacted to cy was by incorpo to the applicable states made fact, statutory provi that the recognize the Fourteenth Amendment26 ration into protect the enacted to reasonable sion was make no law “Congress shall provides the free exercise fostering of state interest religion, of an establishment respecting then, matter, religion. As threshold of thereof.” the free exercise prohibiting survives constitutional opt-out policy Const, Employment I. amend. scrutiny under Smith. Division, Re Human Department of complaint, howev- specific The Families’ Smith, Supreme Court held sources legitimately of er, process in the is that neutral, applicable govern generally that a religious beliefs about inquiring of a free will regulation mental withstand exemption from Uni- seeking families regulation is challenge when the exercise Policy, “crossed form Defendants state legitimate to a reasonably related into the legitimate inquiry line between 872, 879, 110 S.Ct. See 494 U.S. interest. religious sincerity of Plaintiffs’ beliefs (1990); Church 108 L.Ed.2d into the inquiry substance prohibited City Aye, Inc. v. Babalu Lukumi that, Families argue beliefs.” The those Hialeah, 520, 531, 113 S.Ct. there was no established (1993) (“In because addressing the 124 L.Ed.2d who determining would policy for free exercise protection for constitutional have be- exception, Defendants granted an general our cases establish religion, religions arbiters of the substance neutral and come that a law that is proposition religious Due to freely their beliefs. pursue an exercise standing III to have Article To Clause, fami- alleged opt-out policy, violation of the Free Exercise the the McLaren/Johnson allege her own that his or plaintiff Forney a must ly Natalie from removed infringed.” religious freedoms “particular district, are they subject be to what rather than Schempp, U.S. Abington v. 374 Dist. Sch. their Amend- allege a violation of First of was 9, 1560, 203, 844 10 L.Ed.2d 224 n. 83 S.Ct. family and rights. The ment Penn/Anderson Dist., (1963); Cent. Sch. Altman v. Bedford opt- Tapleys participate refused to 49, Cir.2001); (2d see also 71 245 F.3d proce- claiming questionnaire, out (recognizing Fleischfresser, 15 F.3d at 684 were violative of their reli- dures themselves aspect of the reli- standing because "[o]ne Lowerys granted were a gious The freedom. right parents to con- gious is the freedom policy religious exemption, but because the training upbringing religious trol they re-apply every year, requires them to children”). family Each has al- their minor injury. policy threatens a future claim that the by requiring opt-out policy, leged defend, explain, and conform their them Connecticut, 296, U.S. 310 26. See Cantwell to have religious practices in an not effort 303, 900, 1213 84 L.Ed. expelled disciplined or from children their school, right thereby infringes on their

293 infringes LeFevre, in manner that the Families’ liefs. See Patrick v. 745 F.2d (2d 153, Cir.1984) free exercise of their beliefs.27 (“Sincerity analysis seeks to an determine good adherent’s difficulty for twofold. the Families is faith in expression religious of his be- First, per- the Families concede that it is lief. provides This test a rational means of Forney to “sinc- missible for examine the differentiating between those beliefs that Second, erity” of their beliefs. on this are held as a matter of conscience and an record there exists established district those that are animated motives of policy that Defendants have in a followed (citations deception omitted)); and fraud.” consistent manner. We address these is- Commissioner, see also Hernandez v. together. sues 680, 696-97, 11.162(c) Section Texas Education (1989); L.Ed.2d 766 United States v. Daly, provides parents may exempt Code (5th Cir.1985) (“Al- their children from the Uniform if though may courts not determine whether provide a they religious can bona fide or a given belief is or religion, is not a philosophical objection wearing to the may trier of fact determine whether a the uniform.28 In an provide effort to an truly belief is held without violating the objective means of determining the sinceri- (citations omitted)). First Amendment.” belief, ty of the “bona fides” of a religious opt-out procedures Because the are a Forney process established a of requiring neutral and rational means to objection, completion written determine ques- Smith, sincerity, as legal matter under requests regard- tionnaire that information they ing do not interfere with the free whether students had worn uniforms in exercise past, personal religion. See 494 U.S. at meetings with the Further, parents.29 process practice, “opt-outs” This determine the sincerity religious objection, granted parents of a have been while who have fraught difficulty, necessary sep- is demonstrated a sincere and consistent ob- jection arate sincere beliefs from fraudulent be- wearing to the of uniforms.30 allegations example, 27. The Lowerys initially Families abandoned For refused to "hybrid-rights" challenge opt-out of a to the questionnaire. appeal fill out the On to the policy. "hybrid-rights” argument Trustees, however, Lowerys Board of Supreme language based on the Court's granted exemption were an based on their Smith, recognized heightened which that a staled belief that their Native American ances- required standard of review when a try Combined with their Catholic beliefs deriv- Free Exercise Clause claim is combined with ing interpretation from of the “Vatican protection another constitutional such as free proscribed wearing II” of uniforms. Smith, expression parental rights. ("The only U.S. at 110 S.Ct. 1595 deci- example, 30.For Mr. and Mrs. J.M. stated in sions in which we have held that the First M., response opt-out request Judy to an neutral, application Amendment bars of a student, "negative per- that Mr. M.'s generally applicable religiously law to moti- experience” sonal with uniforms in Catholic vated action have involved the Free Exer- Judy school created a sincere belief that M. alone, cise Clause but the Free Exercise Further, they should not wear a uniform. conjunction Clause in with other constitution- questions answered "no” to all relevant re- protections.”). rejected al The district court garding previous wearing their child's of uni- argument. the We do not address it. granted exemption Judy forms. The was for fashion, O., M. In similar Mr. of a father supra 28. note 2. O., Forney Patrick indicated that he student school, claims, pulled had Contrary his children out of Catholic to the Families’ the For- ney opt-out partly policy solely dependent objections because his to uniforms. was not of parents’ responses questionnaire. responded questionnaire on the Mr. O. to also to the 294 612-13, L.Ed.2d the Families

Therefore, that conclude we court found: materi- As the district of genuine issue have not created opt- Forney’s of application al that the fact has policy unquestionably [T]he uniform exercise their free policy violates out Next, the purpose. principal a secular First Amendment. the rights under reli- advances nor effect neither inhibits the purpose is to enhance gion. Its Clause Claim31 B. Establishment in the environment learning The Families’ Establishment schools, irrespective religious merit. equally is without argument Clause Finally, particular student. faith of will that Families assert Defendants entan- policy unnecessarily does not upon proof requests only exemption grant religion. Board with gle the School to an applicant strictly adhered religion only policy references manifesting pref religion, thus organized exemptions. is in of There the context in religions which only for those erence of suggest to that as result no evidence proof of provide could written adherents Board policy, the School the uniform The Families tenets of their beliefs.32 occasionally be- routinely must or even that, only to argue granting exemptions religious matters. come involved on uni prohibition for which a religions re- exemption hundred Less than one in the tenets of clearly stated forms was students, 2,500 nearly out of quests, establishing Defendants were religion, Board, by the School were considered others, in religions as favored over some majority concerned secular vast Clause. of the Establishment violation opt-out requests. F.Supp.2d at 708. We Littlefield, 108 an

To withstand Establishment court’s conclusion. agree have a with district a statute must challenge, Clause raising None of families Establish- the statute’s legislative purpose, secular any challenge point can nor ment purpose must neither advance Clause primary implementa- purpose behind the religious must not religion, and the statute inhibit these opt-out policy. of Nor can with reli tion entanglement foster an excessive Kurtzman, “primary of any families effect” point gion. See Lemon v. may an Es- exemp- tangible injury suffice to make Again, the "no” each item. addition, Lowerys justiciable. Clause claim granted. was In tablishment tion County, Haywood granted exemption v. 131 F.3d an Suhre were based (citations omitted); (4th Cir.1997) religious their Native see beliefs that combine Altman, ancestry ("[Sjtanding beliefs and their Catholic at 72 American II. interpretation of Vatican based on an Clause assert Establishment claim an plaintiff’s exposure to rest ... on the direct standing pur- concept injury "[T]he Murray, activity.”); F.2d challenged poses particularly elusive Establishment case, the Families the instant 151-52. Austin, Murray City Clause cases.” application opt- alleged Cir.1991). (5th Court of F.2d As the organized policy appears to favor certain out recognized: Fourth Appeals for the Circuit belong. religions the Families do to which inquiry exposure policy standing in Establishment to the satisfies the This direct [T]he bring to reflect the an "intangible injury” Clause cases has been tailored plain- injuries challenge. Clause kind of Clause Establishment Establishment spiritual, likely [T]he tiffs are to suffer.... posit 32. The the Amish followers Families plaintiffs are often value-laden beliefs of religious examples of believers alleged directly estab- Islam most affected an support point to written tenets to Accordingly, who could religion. rules lishment of opt-out claims. in- their standing recognize that noneconomic particu- opt-out policy that advances a A. religion religion. lar or that inhibits On I regret we have not confronted the record, appears this it that those families issue our court in Canady avoided v. Bos- that could demonstrate sincere consis- Bd., (5th sier Parish Sch. 240 F.3d 437 rejection mandatory tent uniforms were Cir.2001): wearing whether the of a school par- granted exemptions regardless of the any uniform devoid of logo, symbol, or Finally, ticular tenets of their faith.33 we “expression” motto is for First Amend- perceive do not an intolerable risk of ex- ment purposes. ques- The answer to that government entanglement cessive in the tion would directly resolve the coerced- parents demonstrate speech Obviously, claim at issue. if that consistency sincerity by explain- their which speech, speech is coerced is not then ing religious objections the basis has not been coerced. affirm Defendants. We therefore the dis- trict grant summary judgment court’s claims. these

VI. CONCLUSION majority correctly acknowledges, as did our court in Canady, two-part that the reasons, foregoing For the we AFFIRM Spence Washington, test from 418 U.S. judgment of the district court in favor 405, 410-11, 41 L.Ed.2d 842 of Defendants. (1974), analysis is the correct for discern- ing whether wearing conduct—such BARKSDALE, RHESA HAWKINS of a sufficiently expres- school uniform—is Judge, specially concurring: Circuit protection. sive to merit First Amendment I concur in part the result and all but Canady explains the application of that (“First Expressive III. Amendment Con- test: Claims”) opinion. duct of the majority “In deciding particular whether conduct I. possesses sufficient communicative ele- bring ments to the First Amendment III., Concerning part our court utilizes play, into we whether [must] ask[ ] ‘[a]n assumptions regarding claims of convey particularized intent mes- coerced-speech and restraint on free ex- present, sage was [whether] pression, than directly addressing rather great message likelihood was so, By doing simply those claims. we in- would be understood those who vite, needless, if not encourage, repetitive ” assessing appel- viewed it.’ When litigation. claim, particular lants’ we look to the activity, combined with the factual con- II. text and environment in which it was wearing of the uniform at issue is undertaken. “expression” First Johnson, purposes. Accordingly, (quoting there is no F.3d at 440 Texas v. Likewise, speech. coerced for the re- (1989))(alteration claim,

straint-on-free-expression original) and on L.Ed.2d 342 (citations omitted). record, requisite expression Unfortunately, this has court, majority, Canady not been demonstrated. as did the fails to supra note 30. regulations, clothing-related determine other Spence to apply adequately posed by problem “The explained: as specifically, uniform Court a whether regula to case does not relate present can consti- clothing generally, opposed type Instead, length in of skirts or as was done tion of the expression. tute pur- style, deportment.... for hair majority clothing, assumes Canady, direct, First wearing primary appeal problem that the involves poses of this Our ”. expressive ‘pure speech’ rights at constitutes akin to uniform- issue 507-08, Tinker, at 89 S.Ct. 393 U.S. conduct. determining what—if Accordingly, for Students) assert (collectively, Appellants in there is wear content any expressive two- that, speech, the for cases of coerced — issue, at we must uniform ing the school by Hurley abrogated was Spence test part in Canady’s engage instruction and follow Gay, Lesbian and Bisexual Irish-Am. two-part analysis. Spence Boston, 115 S.Ct. 515 U.S. Group of (1995) 2338, 132 Mas (holding L.Ed.2d 487 proffered some While the Students law un public accommodation sachusetts Independent evidence that private applied require constitutional as (FISD) convey intended to District School Day parade Patrick’s organizers of St. poli- uniform message adopting a lesbian, group as gay, and bisexual include pride respect in and for cy namely, — unit). They rely on the parade own its question its schools—I values of FISD and narrow, that “a succinct Court’s statement sufficiently par- is message whether such message is not a condition ly articulable But, even satisfy Spence. ticularized as to if which confined protection, constitutional message, I doubt if did intend that FISD ‘particularized expressions conveying whatsoever, no less any likelihood there is unques reach the message,’ would never required by Spence, “great likelihood” painting of Jackson Pol tionably shielded message would be understood that such lock, Schoenberg, or Jab- music of Arnold anyone happens who to see students’ at Lewis Id. berwoeky verse of Carroll”. skirt) (or solid- khaki trousers blue or (citation omitted). 569, 115 worn in the factual colored shirt. When environment which students context and course, par speech pure, where is Of is, uniform —that required to wear the are been re message ticularized has never conveys at most the school—the speech is entitled to “com quired; pure wearer is a following message: protection under the First prehensive student. In Tinker v. Des Moines Amendment”. 503, 505-06, Dist., dep. Com. Sch. that, I hold as a mat Accordingly would 733, 21 89 S.Ct. L.Ed.2d law, of a school uniform wearing ter of hand, test, the other was estab

Spence symbol, or motto—like any logo, devoid of than speech to address is less lished hair that was at issue wearing long an idea pure: namely, “expression of in Karr v. en banc decision this court’s through activity”. Spence, 418 U.S. (5th Cir.1972)(en Schmidt, 460 F.2d 609 denied, banc), cert. (1972) in is not 34 L.Ed.2d wearing That a school uniform — does Tinker, content” to which volve “sufficient communicative pure speech supported by expression for First Amendment suspended qualify being involved students Consequently, the pro- purposes. school to wearing black armbands to uniform cannot constitute to wear such a in Vietnam. distin- test the conflict Supreme Court speech. from coerced As the armband-suspension guishing the implied Hurley, implicates where disfavored expressive clothing choices. message identify”, is “difficult to there is Accordingly, majority proceeds with allegedly no risk that the coerced party is analysis. the O’Brien propound particular point forced “to Although “certain choices of clothing 574-75, Hurley, view”. at U.S. 115 may have sufficient communicative content S.Ct. 2338. qualify as First Amendment activity”, Canady, 240 F.3d at present 441 n. record only contains vague depictions of course, deciding Of wearing of messages the supposedly Students intend such a school expressive uniform is not convey through clothing choice. The conduct alleviates the need to examine the deposition testimony of one Student typ- is coercion claim four-part under the O’Brien ical: test regarding content-neutral restrictions mean, I I don’t like them [school uni- expressive on conduct. See United States I forms]. don’t like that we have to O’Brien, wear the same thing every day. It’s a Indeed, L.Ed.2d 672 I routine I that don’t like to be in. I don’t question whether applies O’Brien to school like to be told what to wear. I would See, uniform cases. e.g., Phoenix Elemen rather wear something expresses Green, tary Sch. Dist No. 1 v. 189 Ariz. Iwho am. (1997) (school 943 P.2d 836 Arguably, the “messages” prof- various policy is a regulation content-neutral of the fered Students in their depositions may medium, not message; accordingly, loosely grouped be concept around the nonpublic forum analysis appropri is the But, individuality. I agree cannot test); ate see Canady, —nor F.3d at 443 Iwill assume'—'that a message such satis- (noting the similarity of O’Brien to tradi two-part fies the Spence test discerning time, place, tional analysis). manner But expressive conduct. Because the Students that question is best left for another day. failed particularized to articulate a Because coercion to wear uniform at message likely to be by any- understood issue is not speak, coercion to there is no one, I would not expres- their free examine apply any need to degree of heightened challenge sion under the O’Brien test as scrutiny. majority apply does. Nor would I any degree of heightened scrutiny. Instead, I B. ask simply would the regulation “whether My conclusion that the wearing of the reasonably accomplish intended to a con- school uniform at expressive issue is not stitutionally permissible objective”. state not, course, does dictate result with Karr, 460 F.2d I at 616. conclude it is. regard to the other Students’ First Amendment claim: restraint free ex- III.

pression. For even if the uniform is not expressive value, imbued with the uniform [Supreme] repeatedly “[T]he Court has policy precludes still the Students from emphasized affirming need for wearing clothing of their choice that may comprehensive authority States and expressive. officials, consistent with funda- claim, In addressing this second the ma- mental safeguards, pre- constitutional jority again follows the lead of the Canady scribe and control conduct the schools”. court in assuming Tinker, policy (em- that the uniform 89 S.Ct. 733 DeKalb, IL, Pollack, pro se. Malla added). state accordance

phasis need, perceived to a law, response Houston, TX, An- Bryant Tripp, Karen controlled prescribed has FISD City, York for Associa- Schlafly, New drew through in its schools of uniforms wearing Physicians Surgeons, & American tion of is consistent policy that a uniform Legal Educ. and Eagle Forum Inc. safeguards. constitutional fundamental Fund, Amici Curiae. Defense head-on. this issue address should We VEECK, doing business Peter

RegionalWeb, Plaintiff-Counter

Defendant-Appellant, JOLLY, KING, Judge, and Before Chief JONES, HIGGINBOTHAM, DAVIS, BARKSDALE, SMITH, WIENER, CON BUILDING CODE SOUTHERN GARZA, DeMOSS, M. EMILIO INC., De INTERNATIONAL GRESS STEWART, BENAVIDES, PARKER and Claimant-Appellee. fendant-Counter DENNIS, Judges. Circuit 99-40632. No. BY THE COURT: Appeals, Court

United States in active A of the Court service member Fifth Circuit. for poll petition on the having requested Sept. majority and a rehearing en banc having voted in service judges active Office, Weisberg Law Weisberg, P. Eric banc, rehearing en of granting favor TX, Denison, for Yeeck. that this cause IT IS ORDERED shall Forman, Veal, & Ken- Robert J. Burr court en banc with oral be reheard Associates, Bush, Birming- M. Veal neth & hereafter to be fixed. argument on date ham, AL, Building Code Con- for Southern specify briefing will schedule The Clerk Inc. Intern. gress supplemental briefs. filing Patrick F. McGow- Lowenberg, Michael Strauss, Feld, an, Akin, & Gump, Hauer Ass’n, TX,

Dallas, Medical for American Nat. Institute

American Standards

(ANSI), Execu- Society of Ass’n American (ASAE), Society of Heat- American

tives

ing, Refrigerating Air-Conditioning (ASHRAE), Society American

Engineers (ASME), Engineers Nation- Mechanical ZIBMAN; (NFPA), Matter Michael of: Fire Protection Ass’n Texas al Bailey Zibman, Jamie Labo- Municipal League Underwriters (UL) Debtors. Inc. Amici Curiae. ratories

Case Details

Case Name: Littlefield v. Forney Independent School District

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 17, 2001

Citation: 268 F.3d 275

Docket Number: 00-10965

Court Abbreviation: 5th Cir.