Mary Frudden v. Kayann Pilling , 742 F.3d 1199 ( 2014 )


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  •                        FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MARY FRUDDEN; JON E. FRUDDEN,                         No. 12-15403
    Plaintiffs-Appellants,
    D.C. No.
    v.                             3:11-cv-00474-
    RCJ-VPC
    KAYANN PILLING; ROY GOMM
    UNIFORM COMMITTEE; HEALTH
    MORRISON; LYNN RAUH; WASHOE                             OPINION
    COUNTY SCHOOL DISTRICT; DEBRA
    BIERSDORFF,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the District of Nevada
    Robert Clive Jones, Chief District Judge, Presiding
    Argued and Submitted
    October 7, 2013—San Francisco, California
    Filed February 14, 2014
    Before: N. Randy Smith and Jacqueline H. Nguyen, Circuit
    Judges, and Gordon J. Quist, Senior District Judge.*
    Opinion by Judge Nguyen
    *
    The Honorable Gordon J. Quist, Senior District Judge for the U.S.
    District Court for the Western District of Michigan, sitting by designation.
    2                      FRUDDEN V. PILLING
    SUMMARY**
    Civil Rights/First Amendment
    The panel reversed the district court’s Fed. R. Civ. P.
    12(b)(6) dismissal for failure to state a claim of an action
    which alleged, among other things, that a public elementary
    school’s mandatory uniform policy violated the First
    Amendment.
    Plaintiffs asserted that because the school’s uniform shirt
    required the display of the written motto, “Tomorrow’s
    Leaders,” the school’s uniform policy unconstitutionally
    compelled speech about leadership. Plaintiffs also argued
    that the uniform policy contained a content-based exemption
    for students who wear a “uniform of a nationally recognized
    youth organization, such as Boy Scouts or Girl Scouts, on
    regular meeting days.”
    The panel held that the school policy compelled speech
    because it mandated the written motto on the uniform shirts.
    Additionally, the panel held that the exemption for uniforms
    of nationally recognized youth organizations such as Boy
    Scouts and Girl Scouts on regular meeting days was content-
    based. The panel concluded that these provisions implicated
    First Amendment protections and were subject to strict
    scrutiny review. Because the district court did not examine
    whether there was sufficient evidence of the school’s
    countervailing interests—and the record did not contain such
    evidence—the panel remanded for further proceedings.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    FRUDDEN V. PILLING                      3
    COUNSEL
    Eugene Volokh, Mayer Brown LLP, Los Angeles, California,
    for Plaintiffs-Appellants.
    Randy A. Drake (argued), Chief General Counsel, Washoe
    County School District, Office of the General Counsel, Reno,
    Nevada; Michael E. Malloy, Kim G. Rowe and Debra O.
    Waggoner, Maupin, Cox & LeGoy, Reno, Nevada, for
    Defendants-Appellees.
    Louis M. Bubala III, Armstrong Teasdale LLP, Reno,
    Nevada; Frank D. LoMonte and Adam Ezra Schulman,
    Student Press Law Center, Arlington, Virginia, for Amicus
    Curiae Student Press Law Center.
    Nathan W. Kellum, Center for Religious Expression,
    Memphis, Tennessee; Jonathan Scruggs, Alliance Defense
    Fund, Memphis, Tennessee, for Amicus Curiae Alliance
    Defense Fund.
    OPINION
    NGUYEN, Circuit Judge:
    This case represents the latest First Amendment challenge
    to a public school’s mandatory student uniform policy. Six
    years ago, in Jacobs v. Clark County School District,
    
    526 F.3d 419
     (9th Cir. 2008), we held that a public high
    school’s mandatory uniform policy survives First
    Amendment scrutiny. Relying on Jacobs, the district court
    here dismissed Mary and Jon Frudden’s claim that the
    mandatory uniform policy at their children’s public
    4                   FRUDDEN V. PILLING
    elementary school, the Roy Gomm Elementary School
    (“RGES”), violates the First Amendment.
    However, the RGES uniform policy differs in significant
    respects from the one we found constitutional in Jacobs.
    First, the RGES policy compels speech because it mandates
    that a written motto, “Tomorrow’s Leaders,” be displayed on
    the shirt. See Wooley v. Maynard, 
    430 U.S. 705
     (1977). By
    contrast, the uniforms in Jacobs consisted of plain-colored
    tops and bottoms, without any expressive message. Second,
    unlike the content-neutral policy in Jacobs, the RGES policy
    contains a content-based exemption for “nationally
    recognized youth organizations such as Boy Scouts or Girl
    Scouts on regular meeting days.”
    These provisions in the RGES uniform policy implicate
    First Amendment protections and are subject to strict scrutiny
    review. Wooley, 
    430 U.S. at
    715–16. Because the district
    court did not examine whether there was sufficient evidence
    of the school’s countervailing interests—and the record does
    not contain such evidence—we reverse and remand.
    BACKGROUND
    A
    In May 2011, RGES instituted a mandatory, written
    uniform policy. The policy was implemented over the
    vigorous objection of one RGES parent, Mary Frudden, after
    two-thirds of families voted to approve mandatory school
    uniforms. Under the policy, students are required to wear red
    or navy polo-style shirts and tan or khaki bottoms. The
    RGES uniform shirts have the Roy Gomm logo on the front,
    which depicts a gopher with the words “Roy Gomm
    FRUDDEN V. PILLING                       5
    Elementary School.” Critically, the shirts also include a
    written message above the logo stating “Tomorrow’s
    Leaders.” Students are not allowed to alter the uniform in
    any way.
    All students must wear the uniform during school hours
    and all formal class activities before or after school. If a
    student does not comply with the uniform policy, RGES
    notifies the student’s parents and the student must change into
    the approved uniform. Additionally, the non-compliant
    student will be assigned detention for the first offense, in-
    school suspension, Saturday school, work crew, or multiple
    detentions for the second offense, out-of-school suspension
    for the third offense, and multiple days of out-of-school
    suspension for any further offenses.
    The policy contains certain exemptions, including an
    exemption for students who wear “a uniform of a nationally
    recognized youth organization such as Boy Scouts or Girl
    Scouts on regular meeting days.”
    B
    The 2011–2012 academic year at RGES began on August
    29, 2011. From August 29 to September 12, 2011, the
    Frudden children (a fifth-grade boy and a third-grade girl) did
    not wear the required uniform. The school did not take any
    disciplinary action and did not ask the children to change into
    the required uniform.
    On September 12, 2011, both children wore American
    Youth Soccer Organization (“AYSO”) uniforms to school.
    AYSO is a nationally recognized youth organization which
    regularly meets at least Monday through Friday. The
    6                    FRUDDEN V. PILLING
    Frudden children’s AYSO uniforms consisted of black shorts
    and shirts displaying the AYSO logo on the front. Mary
    Frudden informed school principal KayAnn Pilling that her
    children were wearing uniforms that fell within the written
    exemption to the policy.
    Pilling told Frudden that the exemption did not apply
    because the children had neither a meeting nor soccer practice
    that day. Frudden protested to Debra Biersdorff, the Area
    Superintendent for the Office of School Performance.
    Biersdorff agreed with Pilling and said that Pilling could
    remove a student to compel compliance with the uniform
    policy. Pilling then called Frudden’s son into her office and
    asked him to change. He agreed and changed into a loaner
    shirt that Pilling provided. Later, Frudden’s daughter
    likewise changed into the school uniform.
    The following day, September 13, 2011, the Frudden
    children again wore AYSO uniforms to school. Once again,
    Pilling removed the children from class and asked them to
    change. Both children agreed to change clothes, although
    Frudden’s son stated that he did not want to do so. The next
    day, September 14, 2011, Frudden’s son wore his RGES
    uniform shirt inside-out so that the logo was not visible. He
    turned his shirt right-side-out after he was called into Pilling’s
    office and requested to do so.
    C
    On July 6, 2011, the Fruddens filed this action. On
    October 18, 2011, the Fruddens filed a First Amended
    Complaint, alleging sixteen claims for relief. This appeal
    relates only to the second claim for relief, brought pursuant
    FRUDDEN V. PILLING                      7
    to 
    42 U.S.C. § 1983
    , alleging that the mandatory uniform
    policy violates the children’s First Amendment rights.
    The district court granted Defendants’ motion to dismiss.
    The Fruddens timely appealed. We have jurisdiction
    pursuant to 
    28 U.S.C. § 1291
    .
    STANDARD OF REVIEW
    “We review de novo the district court’s dismissal for
    failure to state a claim under Federal Rule of Civil Procedure
    12(b)(6).” Zixiang Li v. Kerry, 
    710 F.3d 995
    , 998 (9th Cir.
    2013) (citation omitted). “In determining whether dismissal
    was properly granted, we assume all factual allegations are
    true and construe them in the light most favorable to the
    plaintiff.” Cervantes v. United States, 
    330 F.3d 1186
    , 1187
    (9th Cir. 2003) (citation omitted).
    DISCUSSION
    The Fruddens contend that the RGES uniform policy is
    subject to strict scrutiny review on two separate grounds.
    First, they argue that because the uniform shirt must contain
    a written motto, “Tomorrow’s Leaders,” the policy
    unconstitutionally compels speech about leadership. Second,
    they argue that the uniform policy contains a content-based
    exemption for “nationally recognized youth organizations,
    such as Boy Scouts or Girl Scouts, on regular meeting days.”
    We agree.
    8                   FRUDDEN V. PILLING
    I
    A
    The “right of freedom of thought protected by the First
    Amendment against state action includes both the right to
    speak freely and the right to refrain from speaking at all.”
    Wooley, 
    430 U.S. at
    714 (citing W. Va. State Bd. of Educ. v.
    Barnette, 
    319 U.S. 624
    , 633–34 (1943)); see also Rumsfeld v.
    Forum for Academic & Institutional Rights, Inc., 
    547 U.S. 47
    ,
    61 (2006) (stating that “freedom of speech prohibits the
    government from telling people what they must say”).
    The compelled speech doctrine was articulated by the
    United States Supreme Court in West Virginia Board of
    Education v. Barnette, 
    319 U.S. 624
    . In that case, the
    defendant board of education required all students “to
    participate in the salute honoring the Nation represented by
    the Flag.” 
    Id. at 626
    . While saluting, students were required
    to recite the Pledge of Allegiance. 
    Id.
     at 627–29. The salute
    and pledge were made a “regular part of the program of
    activities in the public schools.” 
    Id.
     at 626 n.2.
    The plaintiffs sought to enjoin the board of education
    from enforcing these rules. The plaintiffs’ children had been
    expelled from school and their parents had been prosecuted
    for “causing delinquency.” 
    Id.
     at 629–30. A three-judge,
    district court panel denied the board of education’s motion to
    dismiss and granted the injunction. On direct appeal, the
    Supreme Court affirmed. 
    Id. at 642
    .
    The Supreme Court expressed “no doubt that, in
    connection with the pledges, the flag salute is a form of
    utterance.” 
    Id. at 632
    . Thus, sustaining the compulsory flag
    FRUDDEN V. PILLING                       9
    salute and pledge would mean that “a Bill of Rights which
    guards the individual’s right to speak his own mind, left it
    open to public authorities to compel him to utter what is not
    in his mind.” 
    Id. at 634
    . In affirming the injunction, the
    Supreme Court held that “the action of the local authorities in
    compelling the flag salute and pledge transcends
    constitutional limitations on their power and invades the
    sphere of intellect and spirit which it is the purpose of the
    First Amendment to our Constitution to reserve from all
    official control.” 
    Id. at 642
    .
    Thirty years later, relying on Barnette, the Supreme Court
    in Wooley struck down a New Hampshire statute requiring
    motorists to display license plates embossed with the state
    motto, “Live Free or Die.” 
    430 U.S. at 707, 717
    . The
    plaintiffs, who were followers of the Jehovah’s Witnesses
    faith, covered up the motto on their license plates because
    they considered the motto “repugnant to their moral,
    religious, and political beliefs.” 
    Id.
     at 707–08.
    The Supreme Court held that the statute violated the
    plaintiffs’ First Amendment rights because it “forces an
    individual, as part of his daily life, indeed constantly while
    his automobile is in public view, to be an instrument for
    fostering public adherence to an ideological point of view he
    finds unacceptable.” 
    Id. at 715
    . Discussing Barnette, the
    Supreme Court reasoned that “[c]ompelling the affirmative
    act of a flag salute involved a more serious infringement upon
    personal liberties than the passive act of carrying the state
    motto on a license plate, but the difference is essentially one
    of degree.” 
    Id.
    10                  FRUDDEN V. PILLING
    B
    1
    Relying on Wooley, the Fruddens argue that the RGES
    uniform policy violates their children’s First Amendment
    rights because the written motto, “Tomorrow’s Leaders,” on
    the shirts compels students to express a particular viewpoint.
    Because the district court dismissed the Fruddens’ compelled
    speech claim based on Jacobs, 
    526 F.3d 419
    , see Frudden v.
    Pilling, 
    842 F. Supp. 2d 1265
    , 1274 (D. Nev. 2012), we begin
    with a discussion of that case.
    In Jacobs, after the defendant school district created a
    standard dress code for all county students, a number of
    schools in the district instituted uniform policies. 
    526 F.3d at
    422–23. The policies were similar and required students to
    wear solid colored bottoms and solid-colored polo, tee, or
    button-down shirts. 
    Id.
     at 423 & n.5. Some schools allowed
    uniform shirts to display a school logo as an option, although
    most did not. 
    Id.
    A number of students and their parents challenged the
    uniform policies. One plaintiff, a Jim Bridger Middle School
    student, argued that his school’s policy violated his First
    Amendment rights because it compelled him to convey a
    symbolic message, one of support for conformity. 
    Id. at 437
    .
    We rejected that argument and held that the uniform policies
    survived constitutional scrutiny. 
    Id. at 438
    .
    We reasoned that the uniforms at issue, consisting of
    plain-colored tops and bottoms “can hardly be compared to
    wearing the type of ‘uniform’ contemplated in Kerik—i.e., a
    white hooded gown that clearly identifies its wearer as a
    FRUDDEN V. PILLING                            11
    member of the Ku Klux Klan and, presumably, as a
    subscriber to its views.” 
    Id.
     (discussing Church of Am.
    Knights of the Ku Klux Klan v. Kerik, 
    356 F.3d 197
    , 206 (2d
    Cir. 2004)); see also Troster v. Pa. State Dept. of Corrs.,
    
    65 F.3d 1086
    , 1092 (3d Cir. 1995) (stating with respect to an
    American flag patch on state corrections officers’ uniforms
    that “[o]bservers might perhaps infer that the wearer is
    patriotic, but [the plaintiff] put on no evidence that observers
    would likely understand the patch or the wearer to be telling
    them anything about the wearers’ beliefs” (emphasis in
    original)). Because the uniforms in Jacobs involved no
    “written or verbal expression of any kind,” the plaintiff’s
    school did not force him to “communicate any message
    whatsoever—much less one expressing support for
    conformity or community affiliation—simply by requiring
    him to wear the solid-colored tops and bottoms mandated by
    its uniform policy.” 
    526 F.3d at 438
    .
    In contrast to the uniform policies in Jacobs, the RGES
    policy mandates written expression, a message on the shirts
    above the school logo stating “Tomorrow’s Leaders.” The
    Fruddens argue that this written motto conveys two
    viewpoints—that leadership should be celebrated (or at least
    valued above being a follower); and that RGES is, in fact,
    likely to produce “[t]omorrow’s leaders.”1
    Relying on Jacobs, the district court here concluded that
    “[t]here is no meaningful risk that a bystander would think
    1
    The written motto also differentiates this case from Kerik, 
    356 F.3d 197
    , in which the clothing itself was expressive, even though there may
    not have been any written message thereon. See 
    id. at 206
     (“[T]he regalia
    of the American Knights, including the robe, mask, and hood, are
    expressive . . . .”).
    12                      FRUDDEN V. PILLING
    any of the hundreds of identically dressed young children on
    the grounds of an elementary school individually chose the
    motto and/or mascot appearing on their uniforms.” 842 F.
    Supp. 2d at 1274 (citing Jacobs, 
    526 F.3d at
    437–38).
    However, that reasoning is inconsistent with Wooley. In
    Wooley, then-Justice Rehnquist dissented on a similar basis.
    Justice Rehnquist argued that there was “no affirmation of
    belief involved in the display of state license tags upon the
    private automobiles involved” in that case. 
    430 U.S. at 722
    (Rehnquist, J., dissenting). But as Justice Rehnquist
    recognized, this is not the test. “[T]he test is whether the
    individual is forced ‘to be an instrument for fostering public
    adherence to an ideological point of view he finds
    unacceptable.’” 
    Id. at 721
     (Rehnquist, J., dissenting) (quoting
    
    id. at 715
     (majority opinion)).
    RGES’s inclusion of the motto “Tomorrow’s Leaders” on
    its uniform shirts is not meaningfully distinguishable from the
    State of New Hampshire’s inclusion of the motto “Live Free
    or Die” on its license plates. Practically speaking, RGES
    compels its students “to be an instrument” for displaying the
    RGES motto. Had the RGES uniforms consisted of plain-
    colored tops and bottoms, as in Jacobs, RGES would have
    steered clear of any First Amendment concerns. However, by
    mandating the written motto on the uniform shirts, the RGES
    policy compels speech under Wooley.2
    2
    In light of our holding, we do not address whether the Fruddens can
    state a compelled speech claim based, without more, on the school logo
    (i.e., the “stylized gopher” with the words “Roy Gomm Elementary
    School”). See Jacobs, 
    526 F.3d at 433
     (“While the [defendant school
    district] could have steered far clear of the First Amendment’s boundaries
    by foregoing the logo provision entirely, we nevertheless conclude that
    allowing students’ otherwise solid-colored clothing to contain a school
    logo—an item expressing little, if any, genuine communicative
    FRUDDEN V. PILLING                           13
    2
    RGES’s arguments to the contrary are unavailing. First,
    that RGES did not discipline the Fruddens’ children is
    irrelevant to their First Amendment challenge. In Wooley, the
    fact that the plaintiff already had “sustained convictions” and
    “served a sentence of imprisonment for his prior offenses”
    was of little significance because “the relief sought [wa]s
    wholly prospective.” 
    430 U.S. at 711
    . More generally,
    preenforcement challenges to government-imposed speech
    restrictions are not extraordinary. See, e.g., Brown v. Entm’t
    Merchs. Ass’n, 
    131 S. Ct. 2729
    , 2733 (2011) (preenforcement
    challenge to law prohibiting sale or rental of “violent video
    games”).
    Second, while Defendants are correct that Wooley did not
    involve compelled speech in the public elementary school
    context, Barnette did. Moreover, while the First Amendment
    rights of public school students “are not automatically
    coextensive with the rights of adults in other settings” and
    must be “applied in light of the special characteristics of the
    school environment,” elementary school students “do not
    shed their constitutional rights to freedom of speech or
    expression at the schoolhouse gate.” Hazelwood Sch. Dist. v.
    Kuhlmeier, 
    484 U.S. 260
    , 266 (1988) (internal quotation
    marks omitted); see also Barnette, 
    319 U.S. at 624-26
    .3
    message—does not convert a content-neutral school uniform policy into
    a content-based one.”). We note, however, that inclusion of the school
    logos in Jacobs was optional.
    3
    On remand, the elementary school context may be relevant in weighing
    RGES’s interest in including the motto on the uniform shirt.
    14                  FRUDDEN V. PILLING
    Third, whether the RGES students had any alternative
    means to disclaim the school motto is not significant.
    Illustratively, in Wooley, the plaintiffs could have “place[d]
    on their bumper a conspicuous bumper sticker explaining in
    no uncertain terms that they do not profess the motto ‘Live
    Free or Die’ and that they violently disagree with the
    connotations of that motto.” 
    430 U.S. at 722
     (Rehnquist, J.,
    dissenting). Likewise, in Barnette, the compulsory salute and
    recitation constituted compelled speech even though students
    could have “simulate[d] assent by words without belief and
    by a gesture barren of meaning.” 
    319 U.S. at 633
    .
    Finally, we do not believe the First Amendment analysis
    turns on an examination of the ideological message (or lack
    thereof) of “Tomorrow’s Leaders.” As the D.C. Circuit
    recently explained, “[t]he right against compelled speech is
    not, and cannot be, restricted to ideological messages.” Nat’l
    Ass’n of Mfrs. v. NLRB, 
    717 F.3d 947
    , 957 (D.C. Cir. 2013);
    accord, e.g., Forum for Academic & Institutional Rights, Inc.,
    
    547 U.S. at 62
     (“[C]ompelled statements of fact . . . , like
    compelled statements of opinion, are subject to First
    Amendment scrutiny.”); Barnette, 
    319 U.S. at 634
     (“Whether
    the First Amendment to the Constitution will permit officials
    to order observance of ritual of this nature does not depend
    upon whether as a voluntary exercise we would think it to be
    good, bad or merely innocuous.”); Cressman v. Thompson,
    
    719 F.3d 1139
    , 1152 (10th Cir. 2013) (“[T]he Supreme
    Court’s case law suggests that ideological speech is not the
    only form of forbidden compelled speech.” (citing cases)).
    II
    Next, we turn to the Fruddens’ argument that the policy
    is not content-neutral because it contains an exemption for
    FRUDDEN V. PILLING                     15
    uniforms of “nationally recognized youth organizations such
    as Boy Scouts and Girl Scouts on regular meeting days.”
    According to the Fruddens, the AYSO is a nationally
    recognized youth organization which regularly meets at least
    Monday through Friday.
    In considering the exemption at issue, we find Carey v.
    Brown, 
    447 U.S. 455
     (1980), instructive. In Carey, the
    Supreme Court struck down a statute that generally prohibited
    picketing of residences and dwellings, but exempted “‘the
    peaceful picketing of a place of employment involved in a
    labor dispute.’” 
    Id. at 457
    . The statute plainly “accords
    preferential treatment to the expression of views on one
    particular subject; information about labor disputes may be
    freely disseminated, but discussion of all other issues is
    restricted.” 
    Id. at 461
    . The Supreme Court held that the
    statute was not content-neutral because “[t]he permissibility
    of residential picketing under [the statute] is thus dependent
    solely on the nature of the message being conveyed.” Id.; see
    also Police Dep’t of Chi. v. Mosley, 
    408 U.S. 92
    , 98–99
    (1972) (“[J]ustifications for selective exclusions from a
    public forum must be carefully scrutinized. Because
    picketing plainly involves expressive conduct within the
    protection of the First Amendment, discriminations among
    pickets must be tailored to serve a substantial governmental
    interest.” (citations omitted)).
    Similarly, the language of the RGES policy’s exemption
    favors the uniforms of certain youth organizations over all
    other clothing that the students may choose to wear in the
    absence of the exemption. Further, the exemption explicitly
    favors the uniforms of the Boy Scouts and Girl Scouts over
    all other uniforms (e.g., those of the AYSO), and favors the
    uniforms of “nationally recognized” youth organizations over
    16                      FRUDDEN V. PILLING
    those of locally or regionally recognized youth organizations.
    Indeed, requiring national recognition implicitly favors the
    uniforms of youth organizations that enjoy widespread
    acceptance – although what degree of acceptance would
    qualify a youth organization as “nationally recognized” is
    unclear. The determination concerning whether a given
    youth organization is “nationally recognized” – to some
    undefined degree – “cannot help but be based on the content”
    of the organization and its uniform “and the message it[s
    uniform] delivers.” See Regan v. Time, Inc., 
    468 U.S. 641
    ,
    648 (1984) (ruling that exception to statute prohibiting
    photographic reproductions of currency “presented
    constitutional problems of its own”). Therefore, we conclude
    that the RGES policy’s “exemption indicates a content-
    specific distinction between favoring certain clothing-related
    ‘speech.’” See Jacobs, 373 F. Supp. 2d at 1182.4
    III
    Having identified the Fruddens’ “interests as implicating
    First Amendment protections does not end our inquiry
    however.” See Wooley, 
    430 U.S. at 715
    .
    Because RGES compels students to endorse a particular
    viewpoint, strict scrutiny applies – that is, inclusion of the
    written motto on the RGES uniform shirts must be “‘a
    4
    Significantly, the uniform policy in Jacobs included a nearly identical
    exemption for “nationally recognized youth organizations such as the Boy
    Scouts or the Girl Scouts” when “those organizations have their meeting
    days.” See 
    526 F.3d at
    424 n.12; Jacobs, 373 F. Supp. 2d at 1166. After
    the district court in that case expressed “strong reservations” that the
    exemption was not content-neutral, the defendant school district
    voluntarily eliminated the exemption from the policy. 
    526 F.3d at
    524 &
    n.12.
    FRUDDEN V. PILLING                              17
    narrowly tailored means of serving a compelling state
    interest.’” Rounds v. Or. State Bd. of Higher Educ., 
    166 F.3d 1032
    , 1038 n.4 (9th Cir. 1999) (quoting Pac. Gas & Elec. Co.
    v. Public Utils. Comm’n, 
    475 U.S. 1
    , 19 (1986)); see Wooley,
    
    430 U.S. at 716
     (“We must also determine whether the State’s
    countervailing interest is sufficiently compelling to justify
    requiring appellees to display the state motto on their license
    plates.” (citing United States v. O’Brien, 
    391 U.S. 367
    ,
    376–77 (1968))).
    Likewise, it is axiomatic that we “apply the most exacting
    scrutiny to regulations that suppress, disadvantage, or impose
    differential burdens upon speech because of its content.”
    Turner Broad. Sys., Inc. v. F.C.C., 
    512 U.S. 622
    , 642 (1994)
    (citations omitted).5 Thus, the RGES policy’s content-based
    exemption also must survive strict scrutiny review.
    Because the district court granted Defendants’ motion to
    dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
    RGES was not required to make any showing regarding its
    justifications for including the written motto or the exemption
    in the policy. Likewise, the Fruddens were not given the
    opportunity to produce any countervailing evidence. Nor is
    the record adequately developed on these issues. Thus, we
    conclude that a remand is necessary. Whether Defendants’
    “countervailing interest is sufficiently compelling to justify
    requiring” the written motto and the exemption is a question
    5
    “In contrast, regulations that are unrelated to the content of speech are
    subject to an intermediate level of scrutiny, because in most cases they
    pose a less substantial risk of excising certain ideas or viewpoints from the
    public dialogue.” 
    Id.
     (citation omitted).
    18                      FRUDDEN V. PILLING
    for summary judgment or trial.6 See Wooley, 
    430 U.S. at
    715–16; Jacobs, 
    526 F.3d at 425
     (noting that the district court
    construed the motion to dismiss as one for summary
    judgment and allowed the parties to supplement the record
    accordingly).
    CONCLUSION
    We hold that the RGES policy compels speech because it
    mandates the written motto, “Tomorrow’s Leaders,” on the
    uniform shirts. Further, the exemption for uniforms of
    “nationally recognized youth organizations such as Boy
    Scouts and Girl Scouts on regular meeting days” is content-
    based. For these reasons, we conclude that strict scrutiny
    review applies.
    We reverse and remand for further proceedings consistent
    with this opinion.
    REVERSED and REMANDED.
    6
    We do not suggest that the entire policy must fall if RGES’s
    justifications are insufficient. For example, under Jacobs, the RGES
    policy clearly would survive constitutional scrutiny if the uniforms consist
    of plain-colored tops and bottoms. Thus, whether the written motto or the
    exemption passes constitutional muster are separate inquiries.