colors and only particular colors and that there not be any writing or messages on attire we the plaintiffs believe that  a gross violation of first amendment rights free speech as well as religious rights because of the nature of the religious religious exemption and that it is in fact for and i guess that's really what's a question here in the ninth circuit there's been a longstanding standard of waiting expression by students that's the chancellor case that talks it's fraser and all other students speech expression is governed by tinker since the briefing there been several cases that have reiterated the chandler standard canard frederick  harper refused all say the same thing some other jurisdictions look at it differently particularly the circuit the fifth circuit and the position taken by the defendants and by the district court i contrary to the ninth circuit case law and focuses on one sentence that was about to read i guess i'll read it now the problem posed by the present case does not relate to the regulation of length of skirts or the type of clothing to hairstyle or deportment from that sentance the fifth circuit and the district court have gleaned some kind of fourth category of student expression that somehow this circuit is just sort of and by the defendants is that from that sentence any expression that is related to attire on a student is necessarily subject to a lower level of scrutiny than change or of course under that particular analysis the buttons in chandler the t shirt in harper and frankly even the armbands in tinker would not be subject to tinker and that is the fundamental question if under tinker uniform requirement is analyzed undertaker then it's clearly unconstitutional why because there is nothing alleged that there is anything and we could do with disruption inevitable to what the school is teaching in terms of an allegation of illegal activity which is what the supreme court now is going to determine in the record was the worst case what we have here are two aspects of violation of students rights to express themselves as far as the messages go in harker the court explicitly said a school cannot ban all messages on t shirts issue in that case was whether a particular message could be banned because of the fact on other students but the point was very clear that the idea that a principal can decide to ban messages on t shirts was not we have again it's not part of the record because it happened afterwards as it's been a few years the families for example pulled their child out of school specifically to avoid this particular requirement and would put the child back in school with the uniform was because of this she felt the need to move out of the district and move in with her mother or perhaps are divorced and ended up going to school in winnemucca so in her case again it is about damages well i think as we pointed out in our reply brief even under o'brian it still wouldn't work first of all brian it deals with things that are not particularly expressive  substantial purpose it will brian applies do you think we have enough facts on the record to decide this case or does this require re man for development of the record further to determine that's a pretty face under o'bri it doesn't apply simply because in banning all shirts all messages on clothing in contradiction to to tinker and contradiction to chandler  question is what is the government's purpose of the government's purpose is conformity and everyone looking alike i think there's a real serious question as to whether that is substantial enough purpose to free speech rights and if it is to avoid disruption then clearly it is going beyond what is necessary in getting rid of much more speech then is required for that particular purpose you also have the issue here of forced speech a barnett type of analysis isn't really a kin to having students say i am by my clothing wearing a uniform i'm part of this community i'm part of this collective and again we've cited several cases that talk about uniforms in that particular context it can be analogized i think to be required to say the pledge of allegiance or requiring a student to pray these media laudable goal is patriotism and piety are things that most of us agree are good things but to require a particular expression by students and by parents because we think these are good things again flies in the face of the whole line of case law that goes all the way back to the jehovah's witnesses in our net that's one of the issues that came about with the failure to give the dresser the religious exemption and it's developed in the record that they saying that they were the northern baptists did not believe religiously violated their religious beliefs which say in having a mandatory uniform the school district said well the kids may wear uniforms some other context they're for obviously they're not against uniforms and the response was but it's not mandatory it's love of life saying you can't argue about men for prayer in school if you go price someplace else school district changed the religious exemption requirement didn't three didn't go the court that the court basically threw it out for there's a new religious exemption requirement under the court's ruling there was no requirement for religious exemption it said that it was it had constitutional problems because of the very fact that we pointed out it involves school administrators talking about or making decisions on the religious or sincerity of religious beliefs which is wholly inappropriate and then the district court said but you don't need to have it anyway we're just throwing it out which is interesting  cases of the light upon by district court threw it out but didn't the district revise the religious exemption requiring any revision subsequent to the if you the district court decision was not part of this case was not reached and is not really there may be that i don't know about what we what we believe is that in order for this to be constitutional requires all it requires is a very simple opt out to anyone with a religious or philosophical belief that the uniforms are inappropriate has the right to do so without having to be judged by the school or whatever very similar to what happens with the pledge of allegiance anyone who doesn't want to say the pledge of allegiance doesn't have to go through a religious test and know what from the school district is required there to  you really believe this or you really to hold this witness what is the nature of your belief if in fact there were an opt out if it were not in fact mandatory in schools having their uniforms and their colors and whatever that's fine you want to do s for the clark county school district school communities in clark county school district in las vegas las vegas nevada have taken steps to improve the education that they provide to their students by stabbing school uniforms school uniforms improve student achievement they promote safety and they enhance a positive school climate in fact thirty eight of clark county three hundred twenty six schools have a stablished mandatory school uniforms and the evidence it is that those uniforms have contributed to improving student achievement in our schools the way that the system works is that each square is not evidence on the record i'm sorry where is that evidence on the record that evidence is not in the and each of those affidavits is written by school administrators with with decades of school experience and and the experience of having school uniforms in their schools and they submitted that those to those important  interest improve safety improve student achievement reduce discipline those sorts of things those that is the the evidence that's before the court and there is no evidence to controvert that evidence in the history described to improve student achievement rather i can tell you that the there is no evidence in the district court below found that there was no intent to try to suppress the free expression of students rather the purpose is to improve student recognizes really disclaims certain types of conduct that may be expressed if they talk about the wearing clothes and that sort of thing type of clothes student important the other thing that taker tinker did not consider a content neutral regulation and that's precisely what the what the what the district has passed here it's content neutral and in no case that has been before the ninth circuit has that question been been looked at so what the district court did is the district court said looking at chandler we don't think with all respect to chandler we don't think that chandler considered the possibility of this neutral regulation neutral on the question of speech evaluated in the context that we have in the context is that that warm brand band would be worn in the face of a regulation that was designed to do something else to achieve another important interest which is to says i think almost precisely the opposite because because the think in tinker tinker didn't consider the idea that there would be a content neutral regulation we think to tinker  disclaimed that that situation in other words tinker taker didn't deal with the question of a black armband when when you had a student uniform policy in place you have to look at context so that the  armbands yes we believe we believe that that would be proper because the context of the of the case would be different from taker if we apply tanker what is it what is the serious disruption at issue in this case there's no serious disruption if you apply think if if you don't go to the o'brien test then if you applied think or there's no evidence that that has been induced that the that the speech was disruptive but once again it's our way down to really  if we if we apply tanker then then the regulation cannot survive and if we apply a brian you think it does is that's right we're down to it that's right and bryan and o'brien we think was the appropriate way to go because if if tinker disclaimed type of clothing if that's true that that when justice for just wrote his opinion and he talked about specifically disclaiming some things then then there is there is room for this fourth category and the fourth category then you have to decide well what are the rights of interest you have the student rights on one hand certainly the expressive rights of the free expression rights that students have but you also have what we submit is a compelling government interest and that is to improve education and o'brian need the important governmental interest that needs to be served so brian works and we think that o'brien is is as faithful to tinker we don't think that it's inconsistent with chandler it's not incons inconsistent with thinking the saddleback which is a nice circuit case to talk about that hair length we think for the type of clothes and the hair length are the sorts of expression that we're disclaimed out of teacher and that that provides a room school it does not alter the school yes it allows them to wear the rest of the school and some would argue that by requiring them to wear the crest it really can felt speech i'm not sure what the speech it doesn't require them to it allows them to it allows them to and if and if they did then they would be saying i think nothing more than i attend this kind and so if that is if that is conduct that's being compelled then if it's compelled speech then analyze that under o'brian it to the extent that it says i'm a member of the student body or i go to school of this particular class not sure what's wrong with that expression but but if you don't like that expression nevertheless if you analyze it in the context of o'brian then you say that well there are important governmental interest for that for the demonstration of that affiliation with the school and why the isn't concept neutral shifting away from compelled speech wise and content neutral if you're allowing so you allow this but you don't allow other things you can't wear a button that says i support the troops right right i'm for barack obama i'm for mike huckabee can't wear those that's right and if an that the schools believe that that having having the students recognize their affiliation with the school is not compelled speech it doesn't it's not saying and i think what you're your argument as logos or neutral but an anti logo is not a longer stance for something that stands for the spirit you can't can't wear the emblem on the range you can't you can't wear black armband you can't do no school you can't draw face on school that's right you can't you can't but once again what what what what are we trying to express when we require the student to wear the oeuvre if we didn't if their students were allowed to wear the student this off the top your head that's fine too but can you tell us whether any of these players currently attend schools that whose policies are been complain grader when the case was started and he's about a third grader now still in a school that has a standard student but not in that particular student that the district court found that student had not  made any there's no evidence at all about what that student was was was trying to say whether or not you're here you're the best of your recollection only doe to currently a tims the school a school having one of these policies that the points are complaining that i'm sure that you suspect after what the supreme court did that high school challenges will now be made by freshman in challenges to grade schools will all be made by first graders we believe that we fall into that category and so that resolves the that issue plaintiffs also wanted to argue and did argue in their briefs to this court that that plaintiff was was eligible for a not to make a hybrid flying but the hybrid claim we believe fails because we don't think that there's support to to improve the standard of review beyond rational basis because there's no reason the likelihood that this this pla has got a valid free speech claim nor does he have a valid due process claim and due process claim really is a very really very quick claim that says if the survey results like the lady there's no evidence that supports that opinion to the contrary the district submitted information that the district followed the nevada state law which requires consultation between the district and parents that consultation has occurred in the form of  in school we also have parents who are an individual you have to keep a bowl of repetition get a reading review and clearly forgot what the wrestlers they have not the same child in that school but the younger sibling so it's not capable of repetition it is being repeated and again the family children were specifically taken out of school until such time as they can well that's without the uniform so standing definitely exists including the damages claim  one of the issues that was raised in terms of why not o'brien well brian doesn't apply when you're dealing with the government's interest in suppressing expression texas versus johnson this is probably the best example of that where you could say well just burning a cloth is conduct that has no expression but when the government's interest is saying no one's going to burn a flag because of his expressive reasons and he was sorts of justification rightly said that's not o'bryant that's expression a strict scrutiny or brian is for conduct that may have some incidental expressive nature but the focus is not to limit expression we have just heard that the purpose is to limit expression to have conformity for anecdotal evidence that it helps school students or whatever but clearly there's no way to uphold this without saying tinker doesn't exist the other thing about content neutral or viewpoint neutral as another special category by saying we're not going after any specific message we're going after and entire forum that has very severe first amendment implications it is not mere conduct and the fact that it's viewpoint neutral doesn't save it from that kind of constitutional analysis  and clearly schneider and a whole bunch of other cases make it very clear that you cannot impinge upon someone's first amendment rights by saying that they go someplace else and speak there so what we've heard here today is very clearly a school