9th Circuit: School uniform policies are constitutional
The Ninth Circuit has issued a 2-1 ruling in this ACLU suit: Jacobs v. Clark County School District, No. 05-16434 (9th Cir., May 12, 2008). The opinion begins:
Public school districts across the country have increasingly turned to the adoption of mandatory dress policies, sometimes referred to as “school uniform policies,” in an effort to focus student attention and reduce conflict. These policies are not without controversy, and many students, as well as their parents, find them offensive to their understanding of core First Amendment values. In a case of first impression in this circuit, we address just such a set of challenges and largely conclude that public school mandatory dress policies survive constitutional scrutiny.
The majority ruling by Judge Hawkins joined by Judge Clifton held that the school’s uniform policies are viewpoint and content neutral and thus subject to intermediate scrutiny. Judge Thomas’ dissenting opinion begins:
Kim Jacobs wanted to wear a T-shirt to Liberty High School containing a message expressing her religious beliefs as a member of the Church of Jesus Christ of Latter-day Saints. When she did, she was suspended four times, for a total of twenty-five days, because the only messages allowed on shirts were those promoting the school.1 She alleges that she was penalized academically, suffered emotional harm, and eventually was forced to transfer to another school.
The district court and the majority have determined, in very thoughtful opinions, that the school’s ban on her speech need only withstand intermediate scrutiny to pass constitutional muster, and that it does in this case. However, this conclusion directly conflicts with Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992). It also represents a substantial rewriting and undermining of the First Amendment protections afforded by Tinker.
Therefore, I respectfully dissent.