Waln v. Dysart Sch. Dist., 54 F.4th 1152 (9th Cir. 2022).
In 2019, Dysart School District prohibited a student from decorating her graduation cap. The school district had a graduation policy that prohibited students from decorating their graduation caps; however, the student had requested a religious exemption. The student, a member of the Sisseton Wahpeton Oyate tribe of the Sioux Nation, wanted to decorate her cap with an eagle feather that had been blessed in a religious ceremony and was to be worn “in times of great honor.” The district, however, rejected her request. When the student showed up to graduation with the decorated cap, school officials did not let her inside the venue. However, school officials permitted other students into the venue who had decorated caps that also violated the dress code. For example, the district allowed one student who decorated their cap with a breast cancer sticker inside the venue.
The student subsequently brought claims against the district, alleging that the district violated her freedom of speech and religion. Specifically, the student claimed that prohibiting her from wearing the non-secular decorated graduation cap, while other secular decorated caps were permitted, violated the free exercise and speech clause of the United States Constitution.
The Ninth Circuit first analyzed the free exercise claim. The court noted that if the district did not enforce the policy to exclude a student’s secular message, such as the breast cancer sticker, then, without some appropriate justification, the district could not enforce its policy against the plaintiff. The court thus held that because the school district did not apply the policy “to the same degree” towards all students but rather executed the policy in a “selective manner,” the district potentially violated the free exercise clause of the U.S. Constitution.
The Ninth Circuit then turned to the free speech claim. The court emphasized that school districts may not engage in viewpoint discrimination, which occurs when the government restricts speech on the basis of the specific “ideology or the opinion or perspective of the speaker.” The court ultimately found that the school’s general policy of prohibiting decorated caps was not viewpoint discrimination. The court held that on its face, the policy is viewpoint neutral because “it prohibits all speech from all students on all graduation caps at the ceremony.” However, even if a policy is viewpoint neutral on its face, it can still violate the Constitution when not applied uniformly. Because the school district, in this case, applied the viewpoint neutral policy in a selective way, the school did infringe on the student’s freedom of speech.
Thus, the Ninth Circuit ultimately determined that the school district’s actions were likely a violation of the free exercise and speech clauses of the Constitution, holding that “general applicability requires, among other things, that the laws be enforced evenhandedly.” The case was remanded to the trial court.
What does this mean for your district? There remains support for the conclusion that a court would find that a policy that bans all decorations from all caps is viewpoint neutral and thus not an infringement on students’ first amendment rights. However, if your district intends to have such a policy, officials should be trained to apply the policy evenhandedly in order to refrain from violating a student’s rights.