Jon Frudden v. Kayann Pilling , 877 F.3d 821 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JON E. FRUDDEN, as parent and No. 15-15448
guardian of his minor children John
Doe and Jane Doe, D.C. No.
Plaintiff-Appellant, 3:11-cv-00474-
RCJ-WGC
v.
KAYANN PILLING, individually, and OPINION
in her official capacity as the
Principal of Roy Gomm Elementary
School and as an executive director
of the Roy Gomm Elementary
School Parent-Faculty Association,
Inc; ROY GOMM ELEMENTARY
SCHOOL PARENT-FACULTY
ASSOCIATION, INC.; HEATH
MORRISON, Ph.D., individually and
in his official capacity as the
Washoe County School District
Superintendent; LYNN RAUH,
individually and in her official
capacity as the Area Superintendent
of the office of School Performance
for the Washoe County School
District; WASHOE COUNTY SCHOOL
DISTRICT,
Defendants-Appellees.
2 FRUDDEN V. PILLING
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted February 17, 2017
San Francisco, California
Filed December 11, 2017
Before: William A. Fletcher, Julio M. Fuentes,*
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge W. Fletcher
SUMMARY**
Civil Rights
The panel affirmed the district court’s grant of summary
judgment to individual defendants and reversed the district
court’s grant of summary judgment to institutional
defendants, and remanded in an action challenging, on First
Amendment grounds, an elementary school’s uniform policy.
Plaintiff challenged a school uniform that required his
children to wear shirts or sweatshirts with a logo consisting
*
The Honorable Julio M. Fuentes, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FRUDDEN V. PILLING 3
of the name of the school, a stylized picture of a gopher (the
school mascot), and the motto “Tomorrow’s Leaders.” An
exemption from the policy allowed students to wear the
uniform of a nationally recognized youth organization on
regular meeting days of that organization. In a prior appeal,
a three-judge panel held that the district court should have
analyzed the motto requirement and the exemption under
strict, rather than intermediate, scrutiny and reversed the
district court’s decision and remanded. Frudden v. Pilling
(Frudden II), 742 F.3d 1199, 1204–05 (9th Cir. 2014). On
remand, the district court granted summary judgment in favor
of defendants.
On appeal from the district court’s summary judgment,
the panel disagreed with the prior panel that reversed and
remanded the district court’s decision in Frudden II. The
panel believed that intermediate rather than strict scrutiny
should be applied to the uniform policy. The panel’s sua
sponte en banc call to reverse the prior decision, however,
failed to receive a majority vote of the active members of the
Court. Given the failure of the en banc call, the panel
considered itself bound by the holding of the prior three-
judge panel. So bound, the panel held that the uniform
policy—both the motto requirement and the exemption—
violated the First Amendment. The panel held that although
there can hardly be interests more compelling than fostering
children’s educational achievement and providing a safe and
supportive educational environment, requiring students to
display the motto “Tomorrow’s Leaders” on their school
uniforms was not narrowly tailored to serve those interests.
The exemption for the uniforms of nationally recognized
youth organizations also failed strict scrutiny.
4 FRUDDEN V. PILLING
The panel held that the individual defendants were
entitled to qualified immunity because the applicable law was
not sufficiently clear to put them on notice that the uniform
policy would violate the First Amendment. However,
because the institutional defendants were not individuals, they
were not protected by qualified immunity.
COUNSEL
Mary Frudden (argued), Reno, Nevada, for Plaintiff-
Appellant.
Sara K. Almo (argued), Christopher B. Reich, and Neil A.
Rombardo, Washoe County School District, Reno, Nevada,
for Defendants-Appellees.
Eugene Volokh (argued), Attorney; Michael Newborn,
Melanie Rollins, Sina Safvati, Anjelica Sarmiento and
Nicholas Goshgarian, Law Students; Scott & Cyan Banister
First Amendment Clinic, UCLA School of Law, Los Angeles,
California, for Amicus Curiae Student Press Law Center.
FRUDDEN V. PILLING 5
OPINION
W. FLETCHER, Circuit Judge:
In July 2011, Mary and Jon Frudden brought suit against
officials and entities associated with the Roy Gomm
Elementary School (“RGES”) and the Washoe County School
District (“WCSD”) in Nevada. The Fruddens challenged on
First Amendment grounds a school uniform policy that
required their two minor children to wear shirts or sweatshirts
with a logo consisting of the name of the school, a stylized
picture of a gopher (the school mascot), and the motto
“Tomorrow’s Leaders.” An exemption from the policy
allowed students to wear the uniform of a nationally
recognized youth organization on regular meeting days of that
organization. The district court applied intermediate scrutiny
and upheld the RGES uniform policy. In February 2014, a
three-judge panel of this court reversed and remanded on the
ground that the district court should have analyzed the motto
requirement and the exemption under strict, rather than
intermediate, scrutiny. Frudden v. Pilling (Frudden II),
742 F.3d 1199, 1204–05 (9th Cir. 2014).
This case comes before us following the district court’s
award on remand of summary judgment against the Fruddens.
Defendants-Appellees are KayAnn Pilling, Heath Morrison,
and Lynn Rauh (“Individual Defendants”), the Roy Gomm
Elementary School Parent-Faculty Association, Inc. (“PFA”)
and WCSD (“Institutional Defendants”). Jon Frudden is now
the sole Plaintiff-Appellant on behalf of his two children.
Mary Frudden, an attorney, is now counsel of record. The
Frudden children no longer attend RGES, and prospective
relief is no longer at issue.
6 FRUDDEN V. PILLING
Our three-judge panel disagrees with the three-judge
panel that reversed and remanded the district court’s decision
in Frudden II. We believe that intermediate rather than strict
scrutiny should be applied to the RGES uniform policy. In an
attempt to reverse the decision of the first panel, we made a
sua sponte en banc call. The call failed to receive a majority
vote of the active members of our court.
Given the failure of our en banc call, we consider
ourselves bound by the holding of the prior three-judge panel.
So bound, we hold that the uniform policy—both the motto
requirement and the exemption—violate the First
Amendment. We further hold that the Individual Defendants
are entitled to qualified immunity because the applicable law
was not sufficiently clear to put them on notice that the
uniform policy would violate the First Amendment.
However, because the Institutional Defendants are not
individuals, they are not protected by qualified immunity.
We affirm in part, reverse in part, and remand for further
proceedings.
I. Background
In the fall of 2009, the Fruddens’ two minor children
enrolled at Roy Gomm Elementary School, a K-6 public
school in Reno, Nevada. At a welcoming event that fall,
WCSD Superintendent Dr. Heath Morrison asked the RGES
Parent-Faculty Association (“PFA”) to help improve
students’ test scores. Mimi Butler, President of the PFA,
believed that school uniforms would help achieve that goal.
Specifically, she believed that school uniforms would help
students “learn how to ‘dress for success’ and focus on
schoolwork rather than their clothing,” and would “help even
FRUDDEN V. PILLING 7
the playing field for those students who could not afford
expensive clothes.” RGES Principal KayAnn Pilling shared
Butler’s view that a uniform policy would help improve test
scores. Pilling believed that uniforms would also help
mitigate wealth-based bullying facilitated or encouraged by
differences in clothing worn by students at RGES. Among
the students Pilling sought to protect were those in a special
education program, many of whom participated in a free or
reduced-cost lunch program.
With Butler and Pilling’s support, in the spring of 2010
the PFA began discussing the merits of a uniform policy. A
proposal for mandatory uniforms failed to garner the
necessary two-thirds support of the PFA in May. School
officials revived the proposal the following year. At that
point, Mary Frudden began attending PFA meetings to
express her strong opposition to mandatory school uniforms.
Over Mary Frudden’s objections, the PFA approved a
mandatory school uniform policy in May 2011.
That same month, RGES mailed to parents a four-page
document describing the new uniform policy for the 2011-
2012 school year. The document described the policy’s main
purpose as “establish[ing] a culture of ‘one team, one
community’ ” at RGES by “foster[ing] school spirit and
unity, as well as a disciplined and safe learning environment.”
Under the policy, students were required to wear either a red
or a navy polo-style shirt or sweatshirt. The shirts and
sweatshirts were available for purchase through the school.
The shirts cost $7.00 each ($9.00 for XXL); the sweatshirts
cost $9.00 each ($11.00 for XXL). The school provided three
uniform shirts free of charge “to each enrolled student who is
experiencing financial hardship.” “Uniform bottoms”—“long
pants, capri-length pants, jumpers, skirts, skorts or
8 FRUDDEN V. PILLING
shorts”—were required to be “khaki or tan in color” and
could be purchased “from a location of choice.” There were
several exemptions from the uniform requirement:
(1) “When a student wears a uniform of a nationally
recognized youth organization such as Boy Scouts or Girl
Scouts on regular meeting days”; (2) “On days designated as
‘free dress/spirit wear’ days”; (3) “Field trips that are
designated by specific teachers as ‘free dress’ field trips”; and
(4) “When a student is on campus outside of normal school
hours.” The policy included a system of escalating sanctions
to enforce the uniform policy.
Uniform shirts and sweatshirts had a small logo on the
front. Written at the bottom of the logo, in capital letters, was
“ROY GOMM ELEMENTARY SCHOOL.” “ROY GOMM”
was in large letters; “ELEMENTARY SCHOOL” was in
small letters. In the middle of the logo was a stylized picture
of the school mascot, a gopher. The motto “TOMORROW’S
LEADERS” was written in small capital letters above the
gopher, in an arching semi-circle.
The Frudden children, a third-grade girl and a fifth-grade
boy, began the 2011–2012 school year on August 29. Mary
and Jon Frudden had filed a pro se suit challenging the
uniform policy the month before. For the first two weeks of
school, the children did not wear the required uniform.
Principal Pilling then sent an e-mail to Mary Frudden:
I am taking another opportunity to try to
reach out to you and to establish a cooperative
working relationship with you in regards to
the uniform issue and your children. . . .
FRUDDEN V. PILLING 9
As we come to the end of our second
week of school, we are also coming to the end
of the grace period for being non-compliant
with the uniform dress code policy. It is my
greatest desire not to have to follow the
outlined steps of our policy in regards to
insubordination when dealing with your
children next week. I am very fond of your
children. I am still hopeful that you will be
willing to meet with me and to work out an
alternative situation that does not impact your
children and put them in a position of having
consequences at school. . . .
I am again extending you an invitation to
meet with me to discuss the uniform issue. I
know that you have not been willing to talk to
me in the past, but the situation is now
becoming critical in terms of not putting your
children in the middle of a situation that will
result in consequences for them for being
insubordinate if they refuse to wear a uniform
next week.
After receiving the email, Mary Frudden sent her children
to school wearing American Youth Soccer Organization
(“AYSO”) uniforms of black shorts and shirts with the AYSO
logo on the front. The prior three-judge panel recounted:
AYSO is a nationally recognized youth
organization which regularly meets at least
Monday through Friday. . . . Mary Frudden
informed school principal KayAnn Pilling that
10 FRUDDEN V. PILLING
her children were wearing uniforms that fell
within the written exemption to the policy.
Pilling told Frudden that the exemption
did not apply because the children had neither
a meeting nor soccer practice that day.
Frudden protested to Debra Biersdorff, the
Area Superintendent for the Office of School
Performance. Biersdorff agreed with Pilling
and said that Pilling could remove a student to
compel compliance with the uniform policy.
Pilling then called Frudden’s son into her
office and asked him to change. He agreed
and changed into a loaner shirt that Pilling
provided. Later, Frudden’s daughter likewise
changed into the school uniform.
The following day, . . . the Frudden
children again wore AYSO uniforms to
school. Once again, Pilling removed the
children from class and asked them to change.
Both children agreed to change clothes,
although Frudden’s son stated that he did not
want to do so. The next day, . . . Frudden’s
son wore his RGES uniform shirt inside-out
so that the logo was not visible. He turned his
shirt right-side-out after he was called into
Pilling’s office and requested to do so.
Frudden II, 742 F.3d at 1202.
FRUDDEN V. PILLING 11
II. Procedural History
A. Frudden I and II
The Fruddens’ First Amended Complaint, filed October
18, 2011, alleged inter alia that the school district and various
individuals, including Principal Pilling and Superintendent
Morrison, had violated their childrens’ First Amendment
rights. The focus of their complaint was the uniform
requirement in general, not the motto in the logo. The
Fruddens sought relief under 42 U.S.C. § 1983.
On January 31, 2012, the district court granted the
defendants’ motion to dismiss. Frudden v. Pilling, 842 F.
Supp. 2d 1265, 1273–74 (D. Nev. 2012) (Frudden I). The
court relied on our decision in Jacobs v. Clark County School
District, 526 F.3d 419, 434 –38 (9th Cir. 2008), in which we
upheld a Clark County, Nevada, public school policy that
required students to wear “solid khakicolored bottoms and
solid-colored polo, tee, or button-down shirts . . . with or
without [school] logos.” On the ground that such a uniform
requirement was content-neutral, we applied intermediate
scrutiny and upheld the mandatory public school uniform
policy. Id. at 436–37.
On February 14, 2014, a three-judge panel of this court
reversed. Frudden II, 742 F.3d at 1201. The panel held that,
unlike the content-neutral uniforms at issue in Jacobs,
RGES’s mandatory uniform policy contained two features
that merited strict rather than intermediate scrutiny.
First, the Fruddens argued that the motto “Tomorrow’s
Leaders” “convey[ed] two viewpoints—that leadership
should be celebrated (or at least valued above being a
12 FRUDDEN V. PILLING
follower); and that RGES is, in fact, likely to produce
‘[t]omorrow’s leaders.’ ” Frudden II, 742 F.3d at 1204. The
panel agreed and concluded that the requirement that students
wear polo shirts with the motto “Tomorrow’s Leaders” was
not “meaningfully distinguishable from the State of New
Hampshire’s inclusion of the motto ‘Live Free or Die’ on its
license plates.” Id. at 1205; see Wooley v. Maynard, 430 U.S.
705 (1977). The panel wrote:
Practically speaking, RGES compels its
students ‘to be an instrument’ for displaying
the RGES motto. Had the RGES uniforms
consisted of plaincolored tops and bottoms, as
in Jacobs, RGES would have steered clear of
any First Amendment concerns. However, by
mandating the written motto on the uniform
shirts, the RGES policy compels speech under
Wooley.
Frudden II, 742 F.3d at 1205.
Second, the Fruddens argued that the exemption from the
policy for uniforms of “nationally recognized youth
organizations such as the Boy Scouts and Girl Scouts on
regular meeting days” was not content-neutral. Relying on
Carey v. Brown, 447 U.S. 455 (1980), in which the Supreme
Court struck down a statute giving favorable treatment to
labor picketing, the panel agreed. It wrote:
Similarly [to Carey v. Brown], the language of
the RGES policy’s exemption favors the
uniforms of certain youth organizations over
all other clothing that the students may choose
to wear in the absence of the exemption.
FRUDDEN V. PILLING 13
Further, the exemption explicitly favors the
uniforms of the Boy Scouts and Girl Scouts
over all other uniforms (e.g., those of the
AYSO), and favors the uniforms of
“nationally recognized” youth organizations
over those of locally or regionally recognized
youth organizations.
Id. at 1206.
The panel remanded to the district court, ordering it to
apply strict scrutiny to the motto requirement and to the
exemption for uniforms of nationally recognized youth
organizations. With respect to “Tomorrow’s Leaders,” the
panel wrote that to survive strict scrutiny the motto must be
“a narrowly tailored means of serving a compelling state
interest.” Id. at 1207 (citation omitted). With respect to the
exemption for other uniforms, it wrote that “it is axiomatic
that we ‘apply the most exacting scrutiny to regulations that
suppress, disadvantage, or impose differential burdens upon
speech because of its content.’ ” Id. (citation omitted).
B. Remand
On remand from this court, Mary Frudden withdrew as a
named plaintiff and became counsel of record. On April 8,
2014, Jon Frudden, now the sole plaintiff suing on behalf of
the Frudden children, filed a Second Amended Complaint
against the Individual Defendants, PFA, and WCSD. The
complaint sought injunctive relief, damages, and attorney’s
fees under 42 U.S.C. § 1983.
In June 2014, the WCSD Board of Trustees adopted a
new policy under which school uniforms could have a logo
14 FRUDDEN V. PILLING
containing a school name and mascot but “[n]o other
language . . . not specific to the school name and mascot.”
The new policy prohibited uniform policies that included
“[c]ontent-based exceptions” such as “[t]eam clothing” or
“[u]niforms of outside organizations.” On June 16, the new
principal of RGES sent a letter to parents advising them to
purchase new school uniforms that complied with the new
policy. Consistent with the new policy, RGES uniforms no
longer include the motto “Tomorrow’s Leaders.”
On February 10, 2015, the district court granted summary
judgment to defendants. Frudden v. Pilling (Frudden III),
Case No. 3:11–cv–00474–RCJ–VPC (D. Nev.). The court
held that the claim for prospective relief was moot. With
respect to damages, the court held that the Individual
Defendants were entitled to qualified immunity because there
was no “clearly established right against the compelled
wearing of a school motto on an elementary school uniform
or against a uniform exception for nationally recognized
youth organizations.” With respect to the Institutional
Defendants, who were not entitled to qualified immunity, the
court held that the “Tomorrow’s Leaders” motto requirement
was narrowly tailored to a compelling state interest and
therefore survived strict scrutiny. The court did not reach the
question whether the policy’s exemption for other uniforms
satisfied strict scrutiny, on the ground that the Frudden
children “suffered no damages as a result of the previous
content-based exemption.”
Jon Frudden timely appealed.
FRUDDEN V. PILLING 15
III. Standard of Review
We review the district court’s grant of summary judgment
de novo. Evanston Ins. Co. v. OEA, Inc., 566 F.3d 915, 918
(9th Cir. 2009). Summary judgment is appropriate when,
viewing the evidence in the light most favorable to the non-
movant, there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Olsen v. Idaho State Bd. of Med., 363 F.3d 916,
922 (9th Cir. 2004).
IV. Discussion
The parties agree that the claim for prospective relief is
moot. The claim for damages, however, is not moot. We
address the damages issue in three parts. First, we ask
whether the required wearing of the uniform with the logo
containing the motto “Tomorrow’s Leaders,” and the
exemption for uniforms of nationally recognized groups,
violate the First Amendment. Second, we ask whether the
Individual Defendants are entitled to qualified immunity.
Third, we briefly address damages against the Institutional
Defendants.
A. First Amendment
The three-judge panel in Frudden II held that the motto
“Tomorrow’s Leaders” required as part of the logo on the
school uniform, as well as the exemption for uniforms of
nationally recognized youth organizations, are subject to
strict scrutiny. We disagree with the conclusion that strict
rather than intermediate scrutiny applies, but we consider
ourselves bound by the conclusion of the earlier panel.
16 FRUDDEN V. PILLING
1. “Tomorrow’s Leaders” Motto
Under strict scrutiny, speech limitations may be upheld
only “if they are narrowly tailored to serve a compelling
interest.” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656,
1664–65 (2015). “The State must specifically identify an
‘actual problem’ in need of solving, and the curtailment of
free speech must be actually necessary to the solution.”
Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 799 (2011)
(internal citation omitted). We conclude that the motto
“Tomorrow’s Leaders” cannot withstand strict scrutiny.
Defendants identify two governmental interests served by
the motto: promoting student achievement; and preventing
bullying or distractions arising out of differences in students’
socioeconomic backgrounds that, in the absence of a required
uniform, would be reflected in their clothing. Circuit courts
are in general agreement that such goals constitute “important
interests” when applying intermediate scrutiny. See Jacobs,
526 F.3d at 435 (holding that the government’s stated goals
of increasing student achievement, promoting safety, and
enhancing a positive school environment “unquestionably
qualify as ‘important’ ”); Blau v. Fort Thomas Pub. Sch.
Dist., 401 F.3d 381, 391 (6th Cir. 2005) (designating the
goals of “bridging socio-economic gaps between families,”
“focusing attention upon learning,” and “improving test
scores” as “important governmental interests”); Canady v.
Bossier Parish Sch. Bd., 240 F.3d 437, 443 (5th Cir. 2001);
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275 (5th Cir.
2001).
We have found no direct authority on the question
whether Defendants-Appellees’ stated interests qualify as
compelling (not merely important) governmental interests,
FRUDDEN V. PILLING 17
but conclude that they do so qualify. There can hardly be
interests more compelling than fostering children’s
educational achievement and providing a safe and supportive
educational environment. However, we reluctantly conclude
that requiring students to display the motto “Tomorrow’s
Leaders” on their school uniforms is not narrowly tailored to
serve those interests.
Defendants argue that the motto “Tomorrow’s Leaders”
promotes student achievement, but they provide no specific
explanation of how this motto and student achievement are
connected. The relationship between the challenged motto
and student achievement is somewhat attenuated. To the
extent that a logo on a required school uniform does promote
student achievement, narrow tailoring that would result in the
replacement of a content-based motto by a content-neutral
motto would hardly lessen the otherwise beneficial impact of
the uniform and logo.
Defendants further argue that the motto was necessary to
prevent wealth-based bullying, on the ground that the
alternative was a uniform requirement that would have
permitted wealthier students to buy and to wear costlier,
brand-name versions of polo shirts. Defendants contend that
some kind of logo was necessary to obscure or eliminate a
brand name that would otherwise have appeared on the polo
shirts. This strikes us as extremely unlikely as a factual
matter. The school could have required (indeed, the record
suggests that the school may actually have required) purchase
of polo shirts through the school. If the policy required that
polos be purchased through the school, the school could
almost certainly have obtained and made available for sale
only polo shirts that had no brand names attached. But even
in the extremely unlikely event that mandatory logos were the
18 FRUDDEN V. PILLING
only means by which brand names could have been
eliminated, there was no need to include the motto
“Tomorrow’s Leaders” in the logo to accomplish this
purpose.
2. Uniforms of Nationally Recognized Youth Groups
RGES’s exemption for the uniforms of nationally
recognized youth organizations also fails strict scrutiny. The
district court concluded that it did not need to reach this
question because, in its view, the children “suffered no
damages as a result of the previous content-based
exemption.” The court erred in concluding, on the ground
that because no actual damages were suffered, that it was
unnecessary to reach the merits of Frudden’s claim. “When
a plaintiff alleges violation of a constitutional right, the
Supreme Court has held that, even if compensatory damages
are unavailable because the plaintiff has sustained no ‘actual
injury’ . . . nominal damages are nonetheless available in
order to ‘make the deprivation of such right actionable’ and
to thereby acknowledge the ‘importance to organized society
that the right be scrupulously observed.’ ” Jacobs, 526 F.3d
at 426 (quoting Carey v. Piphus, 435 U.S. 247, 266 (1978)
(internal brackets omitted). We therefore reach the merits of
Frudden’s claim.
The PFA explained in an answer to an interrogatory that
it adopted the exemption because it “was consistent with
other uniform policies at schools around the country, and
would also make planning easier for the students and their
parents who had meetings immediately after school, so they
didn’t have to worry about bringing two sets of clothing.”
We conclude that these two interests—consistency with the
policies of other schools, and student and parental
FRUDDEN V. PILLING 19
convenience—are not compelling. They are self-evidently
less significant than interests the Supreme Court has
previously found to be compelling, such as combating
terrorism, Holder v. Humanitarian Law Project, 561 U.S. 1,
28–29 (2010), or preventing voter fraud, Burson v. Freeman,
504 U.S. 191, 198–99 (1992) (plurality opinion). We
therefore conclude, in applying strict scrutiny, that the
exemption for uniforms of other organizations violated the
First Amendment.
3. Our Disagreement with the Result We Are Required to
Reach
Though we are required to apply the law as articulated by
the prior panel in this case, we do not agree with it. In our
view, the prior panel failed to distinguish properly between
public and nonpublic fora. Just as important, it failed to
apply common sense.
The state “may limit expressive activity in nonpublic fora
if the limitation is reasonable and not based on the speaker’s
viewpoint.” See DiLoreto v. Downey Unified Sch. Dist. Bd.
of Educ., 196 F.3d 958, 965 (9th Cir. 1999). Unless a public
school opens up its facilities for “indiscriminate use by the
general public,” “no public forum has been created, and
school officials may impose reasonable restrictions on the
speech of students, teachers, and other members of the school
community.” Hazelwood School Dist. v. Kuhlmeier, 484 U.S.
260, 267 (1988) (internal quotation marks omitted).
The prior panel concluded that the constitutionality of the
motto “Tomorrow’s Leaders” was controlled by Wooley v.
Maynard, in which the Supreme Court struck down under the
First Amendment a requirement that New Hampshire drivers
20 FRUDDEN V. PILLING
display the statement “Live Free or Die” on their license
plates. We disagree with the panel for two reasons. First, the
required speech in Wooley was speech by driving-age adults
in a public forum rather than speech by students in the non-
public forum of an elementary school. Second, “Live Free or
Die” was a political, content-based statement; “Tomorrow’s
Leaders” is not such a statement.
According to the prior panel, the motto “Tomorrow’s
Leaders” is subject to strict scrutiny because its viewpoint
celebrates leadership at the expense of those who are
followers. Anodyne, feel-good statements such as
“Tomorrow’s Leaders” are common in public schools. A
number of mottos would be subject to strict scrutiny and
struck down under the panel’s rationale. What about a motto
“We Succeed Together”? Some students are loners. What
about “School Pride”? Some students are not proud of their
school. What about “Stand Tall”? Some students are short.
To subject such mottos to strict scrutiny makes no sense.
If mandatory school uniforms, including a motto
“Tomorrow’s Leaders,” are subject only to intermediate
scrutiny, we see no reason to subject to strict scrutiny an
exemption for uniforms for recognized organizations to
which students may belong. To jeopardize such a wide-
spread and inoffensive practice similarly makes no sense.
However, given currently governing circuit law, we
follow the holding of the prior panel.
FRUDDEN V. PILLING 21
B. Individual Defendants and Qualified Immunity
1. Waiver
Frudden contends that the Individual Defendants waived
their qualified immunity by failing to plead it in their Answer
to the Second Amended Complaint. We disagree.
Qualified immunity is an affirmative defense that the
government has the burden of pleading and proving.
Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992). In
their Answer to Frudden’s Second Amended Complaint,
Defendants’ Seventh Affirmative Defense stated that because
their “actions and/or omissions constituted the exercise or
performance of a discretionary function,” they were “entitled
to immunity.” While a more explicit invocation of qualified
immunity would have been preferable, any deficiency
(assuming there was one) was cured when the Individual
Defendants explicitly raised and argued qualified immunity
in their Motion for Summary Judgment. See Camarillo v.
McCarthy, 998 F.2d 638, 639 (9th Cir. 1993) (“In the absence
of a showing of prejudice, . . . an affirmative defense may be
raised for the first time at summary judgment.”).
2. Clearly Established Law
We apply a two-part analysis in qualified immunity cases.
Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir. 2016). First,
we “decide whether the facts that a plaintiff has alleged . . .
make out a violation of a constitutional right.” Pearson v.
Callahan, 555 U.S. 223, 232 (2009). Second, we “decide
whether the right at issue was ‘clearly established’ at the time
of defendant’s alleged misconduct.” Id. A right is clearly
established for purposes of qualified immunity only where
22 FRUDDEN V. PILLING
“[t]he contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Dunn v. Castro, 621 F.3d 1196, 1200
(9th Cir. 2010) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). The two prongs of the qualified immunity
test need not be addressed in the order stated; we may
“exercise . . . discretion in deciding which of the two prongs
. . . should be addressed first in light of the circumstances in
the particular case at hand.” Pearson, 555 U.S. at 236.
For the reasons stated above, we conclude that the
Individual Defendants violated the First Amendment and that
they therefore fail the first prong of the qualified immunity
analysis. The remaining question is whether they satisfy the
second prong.
We begin with the motto “Tomorrow’s Leaders.” In
Jacobs v. Clark County School District, 526 F.3d 419 (9th
Cir. 2008), we upheld a public school uniform requirement.
We concluded that “allowing students’ otherwise solid-
colored clothing to contain a school logo—an item expressing
little, if any, genuine communicative message—does not
convert a content-neutral school uniform policy into a
content-based one.” Id. at 433. Applying intermediate
scrutiny, we upheld the uniform policy because it advanced
the important state interest of fostering conducive learning
environments for children, was unrelated to the suppression
of free expression, and left open ample alternative channels
for student communication. Id. at 435–38. The only
difference between the uniforms in Jacobs and those at issue
in this case is that RGES uniforms included as part of the
logo the motto “Tomorrow’s Leaders.”
FRUDDEN V. PILLING 23
Frudden and amicus argue that at the time Defendants
acted clearly established law under West Virginia State Board
of Education v. Barnette, 319 U.S. 624 (1943), and Wooley v.
Maynard, made it clear that they were violating the First
Amendment. In Barnette, the Supreme Court held
unconstitutional a law requiring public school students to
salute the flag and recite the Pledge of Allegiance. 319 U.S.
at 628–29. Relying on Barnette, the Court held in Wooley
that New Hampshire could not require its drivers to display
the state motto, “Live Free or Die,” on their license plates.
430 U.S. at 715–17.
While Barnette and the present case both involve public
schools, “Tomorrow’s Leaders” is not analogous to the
Pledge of Allegiance. The former is an anodyne phrase
printed on a shirt or sweatshirt, while the latter is a compelled
oral recitation pledging fidelity to national unity (in its
current form, to national unity “under God”). Further, while
Wooley and the present case both involve printed words, the
cases are not analogous. The motto “Tomorrow’s Leaders”
has little if any substantive content and was displayed on a
uniform only in a school setting. In contrast, “Live Free or
Die” has obvious political content and is publicly displayed
everywhere a vehicle is driven. Thus, it can hardly be
maintained that these two cases clearly establish that the
motto “Tomorrow’s Leaders” violates the First Amendment.
Stated otherwise, existing precedent had not “placed the . . .
constitutional question beyond debate.” Ashcroft v. Al-Kidd,
563 U.S. 731, 741 (2011).
The exemption for uniforms of other organizations fares
no better. In holding that the exemption required the
application of strict scrutiny, the prior three-judge panel
relied only on Carey v. Brown, 447 U.S. 455, 457 (1980), in
24 FRUDDEN V. PILLING
which the Supreme Court held that a statute prohibiting
residential picketing was unconstitutional because it
exempted “peaceful picketing of a place of employment
involved in a labor dispute.” The Court was troubled by the
fact that “[t]he permissibility of residential picketing under
the Illinois statute [was] dependent solely on the nature of the
message being conveyed.” Id. at 461. The prior panel
concluded that Carey controlled this case because RGES’s
uniform policy “favors the uniforms of certain youth
organizations over all other clothing that the students may
choose to wear.” Frudden II, 742 F.3d at 1206.
In Carey, the regulation at issue privileged particular
views in a public forum—specifically, streets and
sidewalks—where First Amendment protections are highest.
See 447 U.S at 460. In contrast, public schools are generally
non-public forums, see Hazelwood 484 U.S. at 267, and
public school students’ First Amendment rights are “not
automatically coextensive with the rights of adults in other
settings.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675,
682 (1986). Further, picketing by adults is strikingly
dissimilar from school children wearing a shirt or sweatshirt
with a motto such as “Tomorrow’s Leaders.” Carey thus did
not place “beyond debate” the issue in our case. Ashcroft v.
Al-Kidd, 563 U.S. at 741.
We therefore conclude that the Individual Defendants are
entitled to qualified immunity.
C. Institutional Defendants
The Parent-Faculty Association (“PFA”) and the Washoe
County School District (“WCSD”) are institutional rather
than individual defendants and therefore do not have qualified
FRUDDEN V. PILLING 25
immunity. Because the district court held that the motto
“Tomorrow’s Leaders” did not violate the First Amendment,
it did not reach the question of damages stemming from that
violation. It did reach the question of damages resulting from
the exemption for uniforms of other organizations,
concluding that the Frudden children suffered no actual
damages. But it reached that question only as a means to
avoid deciding whether the exemption violated the First
Amendment. On appeal, Frudden makes no argument about
the quantum of damages.
Under the circumstances, we conclude that the question
of damages for the two First Amendment violations by the
Institutional Defendants remains to be decided by the district
court. We remand for that purpose.
Conclusion
We affirm the district court’s grant of summary judgment
to the Individual Defendants and reverse the district court’s
grant of summary judgment to the Institutional Defendants.
We remand to the district court for further proceedings
consistent with this opinion.
The parties to bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED.