FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIMBERLY JACOBS; DONALD JACOBS; 

LINDA ROWLEY; DWIGHT TERRY,

JR.; DWIGHT TERRY, SR.; SHANE

DRESSER; DONALD DRESSER; WENDY

DRESSER; LONA FINLEY; WHITNEY

ROSE; LYNN ROSE; DEANNA

WRIGHT,

Plaintiffs-Appellants, No. 05-16434

v. D.C. No.  CV-S-04-01490- CLARK COUNTY SCHOOL DISTRICT;

M RLH ARGE APPUGLISE; SHIRLEY

BARBER; SUSAN BRAGER-WELLMAN; OPINION

DENISE BRODSKY; PENNY ELLIOT;

EMELIO FERNANDEZ, JR.; CARLOS

GARCIA; RUTH JOHNSON; LARRY

MASON; SHEILA MOULTON; DARLENE

RUSSELL; MARY BETH SCOW;

MILANA WINTER,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, District Judge, Presiding

Argued and Submitted

March 8, 2007—Tempe, Arizona

Submission Vacated May 3, 2007

Resubmitted August 15, 2007

Filed May 12, 2008

Before: Michael Daly Hawkins, Sidney R. Thomas, and

Richard R. Clifton, Circuit Judges.

5177
Opinion by Judge Hawkins;

Dissent by Judge Thomas

5178 JACOBS v. CLARK COUNTY SCHOOL DIST.
COUNSEL

Allen Lichtenstein, General Counsel, ACLU of Nevada, Las

Vegas, Nevada, for the plaintiffs-appellants. 

C.W. Hoffman, Jr., Clark County School District, Office of

the General Counsel, Las Vegas, Nevada, for the defendantsappellees. 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5181
OPINION

HAWKINS, Circuit Judge: 

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. 

FACTUAL & PROCEDURAL HISTORY

In 2003, the Clark County School District (“the District”)

promulgated Regulation 5131 (“the Regulation”),1 which created a standard dress code for all Clark County students2

 and

established a means by which individual schools in the District could establish more stringent mandatory school uniform

policies.3 These uniform policies were to be established “for

1The Regulation was passed pursuant to section 392.458 of the Nevada

Revised Statutes (“N.R.S. § 392.458”), which authorizes “[t]he board of

trustees [of a Nevada school district] . . . , in consultation with the schools

within the district [and] parents and legal guardians of pupils who are

enrolled in the district, . . . [to] establish a policy that requires pupils to

wear school uniforms.” 

2This dress code contained typical student dress provisions, such as prohibitions on wearing hats in class, wearing clothing that is obscene, disruptive, or hazardous to student safety, and wearing skirts that are too

short. None of the plaintiffs challenge the constitutionality of this basic

dress code. 

3Significantly, in its original incarnation, the Regulation required any

school considering a uniform policy to first conduct a parental survey.

Only if at least 51% of the school’s parents returned the surveys—and, of

those responding, at least 70% favored the policy—could the policy be

implemented. 

5182 JACOBS v. CLARK COUNTY SCHOOL DIST.
the purpose[s] of increasing student achievement, promoting

safety, and enhancing a positive school environment.”

4

A number of schools in the District instituted such uniform

policies. For example, Liberty High School (“Liberty”) instituted a policy requiring all students to wear “solid khakicolored bottoms and solid-colored polo, tee, or button-down

shirts (blue, red or white) with or without Liberty logos.”

5

Kimberly Jacobs (“Jacobs”), then an eleventh-grader at Liberty, repeatedly violated Liberty’s uniform policy (at least

once by wearing a shirt containing a printed message reflecting her religious beliefs). As a result of these violations,

Jacobs was repeatedly referred to the Dean’s office and was

ultimately suspended from school five times for a total of

approximately twenty-five days. Although Liberty provided

Jacobs with educational services during her suspensions6—

and, in fact, Jacobs’s grade point average improved during

that time period7—Jacobs claims that she missed out on classroom interactions, suffered reputational damage among her

teachers and peers, had a tarnished disciplinary record, and

was unconstitutionally deprived of her First Amendment

rights to free expression and free exercise of religion because

of Liberty’s enforcement of its mandatory school uniform policy.8

4Although the second and third purposes were not expressly listed in the

original version of the Regulation, they were listed in a revised version of

the Regulation and, according to an unrebutted affidavit from the District’s superintendent, were purposes of the Regulation from the outset. 

5The other schools involved in this case implemented similar uniform

policies, though most of these did not allow student clothing to contain a

school logo. 

6Her teachers apparently provided Jacobs with homework, corrected

that homework, allowed her to take tests, and communicated with her via

telephone and e-mail. 

7

Jacobs was not “penalized academically”; in fact, the undisputed evidence shows that her academic performance improved. 

8Nor was Jacobs “forced to transfer to another school”; rather, she

decided—as she is entitled to do—that she would rather attend a school

without a dress code than comply with the dress code at Liberty. 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5183
Jacobs and her parents thus brought suit against the District

and various individual defendants (collectively, “Defendants”), asking the court to: (1) declare N.R.S. § 392.458, the

Regulation, and Liberty’s mandatory school uniform policy

unconstitutional as violating the First Amendment’s Free

Speech and Free Exercise clauses, as well as the Fourteenth

Amendment’s Due Process Clause; (2) expunge all related

discipline from Jacobs’s record; and (3) award her appropriate

damages.9 Without expressing any view on the constitutionality of Liberty’s uniform policy or its authorizing regulation

and statute, the district court granted Jacobs’s motion for a

preliminary injunction and enjoined Liberty from further disciplining or suspending Jacobs for failing to adhere to the policy.10 Following this decision, the District slightly amended the

Regulation, with the only significant changes being: (1) a

relaxation of the amount of parental support needed to enact

a school’s uniform policy;11 and (2) elimination of one portion

of the Regulation about which the district court expressed

“strong reservations.”

12 Additionally, Liberty expunged all

uniform-related discipline from Jacobs’s record. 

9

Jacobs also alleged violations of Article 1, Section 9 of the Nevada

Constitution and other provisions of Nevada law. Because Article 1, Section 9 of the Nevada Constitution is “coextensive [with] . . . the First

Amendment to the United States Constitution,” S.O.C., Inc. v. Mirage

Casino-Hotel, 23 P.3d 243, 251 (Nev. 2001), and because none of the state

law claims are at issue in this appeal, this decision focuses only on

Jacobs’s arguments under the United States Constitution. 

10The preliminary injunction was based on the district court’s finding

that Liberty’s uniform policy was likely implemented without complying

with the original Regulation’s parental survey requirements—a claim

Plaintiffs have since abandoned. See infra Part IV (objecting to policy’s

implementation only insofar as it violated due process, not state law). 

11Under the revised version of the Regulation, a school could implement

a uniform policy if, of the parental survey responses it received, at least

55% expressed approval for the policy. A “minimum response rate” was

no longer needed. 

12This portion made an exception to the uniform policy for “nationally

recognized youth organizations such as the Boy Scouts or the Girl

Scouts.” The district court’s reservations were based on its tentative conclusion that that portion of the Regulation created a “content-specific

clothing exception[ ].” Compare infra Part II.A. 

5184 JACOBS v. CLARK COUNTY SCHOOL DIST.
Encouraged by Jacobs’s success in obtaining a preliminary

injunction—and concerned about the suit’s viability after

Jacobs had withdrawn from Liberty and moved to a new

school district—a number of other District students and their

parents (collectively, “Plaintiffs”) joined the suit.13

Shane Dresser (“Dresser”)—a student at Jim Bridger Middle School (“Bridger”) at the time this suit was filed14—

alleged, inter alia, that his right to free exercise of religion

was violated when, after being denied a religious exemption

from Bridger’s uniform policy, he was forced to wear the

required uniform. Dresser had applied for an exemption on

the ground that his religion teaches its members to embrace

their individuality and further teaches that, even though “uniformity can be accepted by an individual if they choose to do

so by their own free will, . . . no one can force uniformity onto

a person.” Dresser’s application was denied without explanation.15

Dwight Terry, Jr. (“Terry”)—a student at Chaparral High

School (“Chaparral”)—alleged that, on at least five occasions,

he was sent to the principal’s office for the remainder of the

school day for failing to wear the required school uniform.

Neither the amended complaint nor any evidence in the record

provides any additional information regarding Terry’s violations. Specifically, the record does not indicate whether

Terry’s non-compliance was due to a religious objection, a

13Like Jacobs’s original complaint, the amended complaint sought

declaratory and injunctive relief, as well as appropriate damages. 

14Dresser no longer attends Bridger and, as Plaintiffs’ counsel conceded

at oral argument, does not presently attend a school in the District with a

mandatory uniform policy. 

15The explanation given by the District’s deputy superintendent for the

denial of a similar application filed by Dresser’s brother, Quinn (who is

not a named plaintiff in this suit), was that the Dressers’ religion did not

require its members to wear certain items of clothing to school and that

the Dressers made “no showing” that the uniform policy prevented their

son from engaging in conduct that was required by his religion. 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5185
desire to communicate a particular message (either via his

dress itself or via a printed message contained on his clothing), a desire to cause disruption in his school, or simple forgetfulness. Chaparral is not presently enforcing a school

uniform policy. 

Whitney Rose and John Does I & II—students at Frank E.

Garside Jr. High School (“Garside”) and Glen Taylor Elementary School (“Glen Taylor”), respectively—alleged that their

due process rights were violated when their schools implemented school uniform policies without complying with the

parental survey requirements included in the original Regulation.16 Of these three students, only John Doe I continues to

attend a District school with a mandatory uniform policy. 

Defendants moved to dismiss Plaintiffs’ amended complaint under Rule 12(b)(6). After advising the parties that

Defendants’ motion might be construed as one for summary

judgment, and after the parties supplemented the record

accordingly, the district court struck two provisions of the Regulation,17 but otherwise granted summary judgment in favor of

16John Doe I also alleges that he was unconstitutionally forbidden from

wearing a “Say No to Uniforms” button at school; however, as the district

court properly found, this claim appears nowhere in the amended complaint and the brief treatment the subject was given in Plaintiffs’ summary

judgment filings was “insufficient to assert a cause of action meriting further discussion.” Jacobs v. Clark County Sch. Dist., 373 F. Supp. 2d 1162,

1174 n.3 (D. Nev. 2005). 

17These provisions—which exempted students from complying with the

uniform policies when doing so “violates [the] student’s/parent’s religion”

and permitted school principals to “grant exceptions for designated spirit

days, special occasions, or special conditions”—were found unconstitutional because they provided “almost unlimited discretion to school

administrators.” See Jacobs, 373 F. Supp. 2d at 1184 (citing City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988) (free exercise

clause violated when “unbridled discretion” given to enforcing authorities)). Defendants do not appeal these rulings, though—as discussed infra

Part III.B—Plaintiffs argue that the district court’s decision to strike the

religious exemption on “excessive discretion” grounds solved one constitutional problem only by creating another. 

5186 JACOBS v. CLARK COUNTY SCHOOL DIST.
Defendants, finding no other constitutional infirmity with

N.R.S. § 392.458, the Regulation, or the individual schools’

uniform policies. See generally, Jacobs, 373 F. Supp. 2d at

1162. Plaintiffs appeal this judgment.

DISCUSSION

I. Justiciability

[1] Before turning to the constitutional claims lodged

against the District’s school uniform policies, we must ensure

that at least one plaintiff presents a justiciable “case or controversy” with respect to each constitutional claim. U.S. Const.

art. III; City of S. Lake Tahoe v. Cal. Tahoe Reg’l Planning

Agency, 625 F.2d 231, 233 (9th Cir. 1980). For a plaintiff’s

claim to be justiciable, he or she must have standing to bring

the claim, and the claim must not be moot. Am. Civil Liberties

Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006).

A plaintiff has standing to challenge allegedly unconstitutional conduct as long as: (1) he or she has “suffered an

‘injury in fact’ ”; (2) there is a “causal connection between the

injury and the conduct complained of”; and (3) it is likely “the

injury will be redressed by a favorable decision.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal

quotation marks and citations omitted). While standing is

determined based on the facts “as they exist[ed] at the time

the complaint was filed,” id., a case becomes moot—and,

hence, non-justiciable—if the “requisite personal interest”

captured by the standing doctrine ceases to exist at any point

during the litigation. See U.S. Parole Comm’n v. Geraghty,

445 U.S. 388, 397 (1980); Bernhardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir. 2002). 

Although many of Plaintiffs’ claims for declaratory and

injunctive relief appear to be moot (as only one plaintiff continues to attend a District school that is currently enforcing a

mandatory school uniform policy), Plaintiffs’ amended comJACOBS v. CLARK COUNTY SCHOOL DIST. 5187
plaint seeks not only prospective relief, but also “appropriate

damages.” As this court clarified in Bernhardt, a “live claim

for [even] nominal damages will prevent dismissal for mootness.” 279 F.3d at 872. We thus examine each of Plaintiffs’

constitutional claims to determine whether at least one plaintiff meets the three standing requirements and retains a “live

claim for [at least] nominal damages.” See id.

A. Freedom of Speech

Plaintiffs allege that the District’s mandatory school uniform policies infringe upon students’ free speech rights by

preventing them from engaging in both constitutionally protected “pure speech” and constitutionally protected “expressive conduct,” as well as by compelling them to “speak” in a

particular manner.18

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”—such as an economic loss, damage to his reputation, or emotional distress—nominal damages are nonetheless available in order to “mak[e] the deprivation of such

right[ ] actionable” and to thereby acknowledge the “importance to organized society that [the] right[ ] be scrupulously

observed.” Carey v. Piphus, 435 U.S. 247, 266 (1978); see

also Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308

n.11 (1986) (“Our discussion [in Carey] makes clear that

nominal damages . . . are the appropriate means of ‘vindicat18Although the district court did not address Plaintiffs’ “compelled

speech” argument in its decision, the argument was properly raised both

to the district court and to this court; thus, we consider the argument on

appeal. Donovan v. Crisostomo, 689 F.2d 869, 874 (9th Cir. 1982). We do

not, however, consider Plaintiffs’ argument that the uniform policies

worked to foreclose to Plaintiffs an “entire medium of expression,” see

City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994), as that argument was not

properly raised to the district court. Marx v. Loral Corp., 87 F.3d 1049,

1055 (9th Cir. 1996). 

5188 JACOBS v. CLARK COUNTY SCHOOL DIST.
ing’ [constitutional] rights whose deprivation has not caused

actual, provable injury.”). 

[2] Here, while it is questionable whether Jacobs has presented sufficient evidence of actual damages to be entitled to

compensatory relief19—and it is clear that Dresser has not

even attempted to do so—this is not fatal to the justiciability

of their claims. Jacobs has standing to bring a non-moot claim

for nominal damages because she alleges an “injury in fact”—

namely, deprivation of her First Amendment right to communicate a particular written message on her clothing—that was

caused by Liberty’s mandatory uniform policy and would be

redressed if this court were to find the policy unconstitutional.

See RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1055

(9th Cir. 2002) (free speech case found justiciable based

solely on plaintiffs’ allegations that city regulation “prevent[ed] them from playing the music of their choice”). Similarly, Dresser has standing to bring a non-moot claim for

nominal damages because he alleges “injuries in fact”—

namely, deprivation of his First Amendment rights to engage

in expressive conduct via his choice of clothing and to be free

from compelled speech—that was caused by Bridger’s mandatory uniform policy and, again, would be redressed if this

court found that policy unconstitutional. See id.

Thus, although Jacobs and Dresser may be entitled to col19Jacobs alleges that, although her scholastic record did not suffer as a

result of her repeated suspensions, she nevertheless suffered compensable

reputational damage, as well as damages emanating from her missed classroom interactions. Defendants counter that Jacobs has put forth no admissible evidence of such damages. Although we note that Jacobs did put

forth competent evidence that she was suspended for 25 days and that

missing classroom time caused her some educational harm, we need not

decide whether this evidence would, itself, be sufficient to support a claim

for compensable damages. As explained below, even taking the facts in

the light most favorable to Jacobs, none of Jacobs’s constitutional rights

were violated; thus, the district court properly dismissed Jacobs’s suit at

the summary judgment stage. 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5189
lect only nominal damages were they to succeed on their free

speech claims, they nonetheless present justiciable challenges

to all speech-related aspects of the District’s uniform policy.

See Lujan, 504 U.S. at 560-61; Bernhardt, 279 F.3d at 872;

RK Ventures, 307 F.3d at 1055. The merits of these free

speech claims will be discussed in Part II. 

B. Free Exercise of Religion 

[3] Plaintiffs also allege that the District’s mandatory uniform policies prevented Jacobs and Dresser from freely exercising their respective religions. Again, these two plaintiffs

have standing to assert non-moot claims for at least nominal

damages because they allegedly sustained “injuries in fact”

that were caused by their schools’ uniform policies and would

be redressed if the court found those policies unconstitutional.

See Lujan, 504 U.S. at 560-61; Bernhardt, 279 F.3d at 872;

Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000) (allowing free exercise claim for only nominal damages to proceed).

Specifically, Jacobs was allegedly prevented from practicing

her religion (which she wanted to do by wearing clothing

expressing her beliefs), while Dresser was allegedly (1) prevented from expressing his individuality via his clothing, and

(2) required to engage in an act of conformity by wearing the

school uniform—both of which, he claims, violate the teachings of his religion. The merits of these free exercise claims

will be discussed in Part III. 

C. Due Process 

[4] Finally, Plaintiffs allege that their due process rights

were violated when several schools in the District—including

Liberty, Bridger, Garside, and Glen Taylor—instituted school

uniform policies without complying with the parental survey

requirements contained in the original Regulation. Because

the students at these schools were allegedly deprived of a cognizable liberty interest in free speech as a result of the school

uniform policies, they too have standing to bring a non-moot

5190 JACOBS v. CLARK COUNTY SCHOOL DIST.
claim for nominal damages. See Lujan, 504 U.S. at 560-61;

Bernhardt, 279 F.3d at 872; Carey, 435 U.S. at 266 (“[T]he

denial of procedural due process [is] actionable for nominal

damages without proof of actual injury.”). The merits of these

due process claims will be discussed in Part IV. 

Because at least one plaintiff has alleged a viable claim for

at least nominal damages with respect to each constitutional

issue, our justiciability inquiry ends there,20 and we proceed

to the merits of their claims. 

II. Free Speech Claims

Plaintiffs raise three speech-related claims. First, Plaintiffs

contend that the District’s school uniform policies (which prohibit students from displaying any printed messages on their

clothing save for, in some cases, the school logo) unconstitutionally restrict students’ rights to engage in “pure speech”

while in school. See Tinker v. Des Moines Indep. Cmty. Sch.

Dist., 393 U.S. 503, 506 (1969) (“[S]tudents [do not] . . . shed

their constitutional rights to freedom of speech or expression

at the schoolhouse gate.”). This claim is best exemplified by

Liberty’s refusal to allow Jacobs to wear t-shirts containing

written messages expressing her religious beliefs in school.21

Second, Plaintiffs claim that the uniform policies unconstitutionally restrict students’ rights to engage in “expressive conduct.” See id. This claim is best exemplified by Bridger’s

refusal to allow Dresser to express his individuality (and his

objection to forced uniformity) by wearing clothing different

from his classmates.22 Third, Plaintiffs claim that requiring

20Specifically, because we find such relief inappropriate on the merits,

we need not consider (and, thus, do not decide) whether Plaintiffs’

requests for declaratory and injunctive relief are justiciable. 

21Such conduct is unquestionably protected by the First Amendment.

See Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 440 (5th Cir. 2001).

22We need not decide whether such conduct is imbued with sufficient

communicative intent to be protected by the First Amendment. See Spence

JACOBS v. CLARK COUNTY SCHOOL DIST. 5191
students to wear a uniform amounts to unconstitutional “compelled speech.” See W. Va. State Bd. of Educ. v. Barnette, 319

U.S. 624 (1943); see also supra note 18. This claim is best

exemplified by Dresser’s contention that he is being forced to

convey a message of uniformity (with which he strongly disagrees) by wearing the same clothing as his classmates. 

We agree with the district court that none of Plaintiffs’ free

speech claims survive summary judgment. Ballen v. City of

Redmond, 466 F.3d 736, 741 (9th Cir. 2006) (reviewing grant

of summary judgment in free speech case de novo). We reach

this conclusion because, as explained in more detail below,

the District’s encroachment upon its students’ rights to free

speech and expression via its content-neutral school uniform

policies need only survive intermediate scrutiny to be

constitutional—a level of scrutiny we find the uniform policies easily withstand. Moreover, enforcement of the mandatory uniform policies does not amount to “compelled speech”

because, under the circumstances, it is unlikely anyone viewing a uniform-clad student would understand the student to be

communicating a particular message via his or her mandatory

dress. 

A. Pure Speech and Expressive Conduct

1. The District’s School Uniform Policies Need

Only Withstand Intermediate Scrutiny to be

Constitutional

The court below concluded that the District’s uniform policies did not infringe upon students’ rights to engage in pure

v. Washington, 418 U.S. 405, 409 (1974) (per curiam). Rather, we follow

the Fifth Circuit’s lead and assume (without deciding) that wearing clothing different from one’s classmates is sufficiently expressive of a student’s

views about non-conformity to merit First Amendment protection. See Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 285-86 (5th Cir. 2001);

Canady, 240 F.3d at 440-41 & n.3. 

5192 JACOBS v. CLARK COUNTY SCHOOL DIST.
speech or expressive conduct because the policies withstood

intermediate scrutiny.

23 Jacobs v. Clark County Sch. Dist.,

373 F. Supp. 2d 1162, 1181, 1185-87 (D. Nev. 2005). Plaintiffs take issue with this analysis from the outset, arguing that

applying intermediate scrutiny to student speech is foreclosed

by Chandler v. McMinnville School District, 978 F.2d 524

(9th Cir. 1992). Specifically, they argue that, under Chandler,

speech that is neither “vulgar, lewd, obscene, [or] plainly

offensive” nor “school-sponsored”—like the speech Plaintiffs

wish to engage in here—must be analyzed under the stricter

standard the Supreme Court utilized in Tinker v. Des Moines

Independent Community School District, 393 U.S. 503, 509

(1969),24 and, most importantly, that Chandler leaves room

for no other alternative. 

Plaintiffs’ argument is superficially appealing. Chandler

laid out three categories of student speech—“(1) vulgar, lewd,

obscene, and plainly offensive speech, (2) school-sponsored

23Intermediate scrutiny’s precise contours vary slightly depending upon

which constitutional right is at issue. In the First Amendment context,

intermediate scrutiny takes the form of the “O’Brien test” for restrictions

on expressive conduct, see United States v. O’Brien, 391 U.S. 367, 376-77

(1968), and the “time, place and manner test” for viewpoint- and contentneutral restrictions on pure speech, see Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622, 661-62 (1994). See also Clark v. Cmty. for Creative NonViolence, 468 U.S. 288, 298 (1984) (confirming that the two tests are, in

essence, identical). 

24That is, that the restriction is unconstitutional unless the school can

show that “engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the

operation of the school.’ ” Id. (quoting Burnside v. Byers, 363 F.2d 744,

749 (5th Cir. 1966)). Although Tinker did not equate its “substantial interference” test with the “strict scrutiny test” that is now commonly used in

First Amendment cases (perhaps because that terminology was not in

common parlance at the time, see First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765 (1978) (earliest Supreme Court case using this terminology

in the free speech context)), Plaintiffs’ argument rests on the “substantial

interference” test being more difficult to withstand than the intermediate

scrutiny test. 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5193
speech, and (3) speech that falls into neither of these

categories”—and explained that speech in the first category

should be analyzed under Bethel School District Number 403

v. Fraser, 478 U.S. 675 (1986), speech in the second category

should be analyzed under Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), and speech in the third category

should be analyzed under Tinker, 393 U.S. at 513-14. See 978

F.2d at 529. 

As both parties concede, Plaintiffs’ speech falls into neither

of the first two categories. Plaintiffs thus argue that, just as

the policy in Tinker was found unconstitutional because

allowing students to wear black armbands in silent protest

would not “substantially interfere with the work of the school

or impinge upon the rights of other students,” 393 U.S. at 509,

the policy here (i.e., forbidding students from wearing their

choice of clothing to school) should be found unconstitutional

because it fails Tinker’s “substantial interference” test, as

well. 

What Plaintiffs miss—but the district court and one of our

sister circuits have correctly recognized—is a key flaw in this

logic. See Canady v. Bossier Parish Sch. Dist., 240 F.3d 437,

441-43 (5th Cir. 2001); Jacobs, 373 F. Supp. 2d at 1175-81.

While Chandler certainly says that all speech in the third category must be analyzed under Tinker, it does not say that all

speech in this category has to be evaluated at the same level

of scrutiny as that ultimately used in Tinker. In other words,

while Chandler dictates that Tinker must guide our analysis

of this case, it does not require us to blindly apply the standard employed therein. We thus start by carefully examining

what the Tinker decision does—and, even more importantly,

what it does not—say. 

5194 JACOBS v. CLARK COUNTY SCHOOL DIST.
a. Tinker Is Silent About How Content-Neutral

Regulations of Pure Speech and Regulations

Affecting Expressive Conduct Should be

Evaluated

In Tinker, a group of students had arranged to wear black

armbands to school to protest the involvement of the United

States in the Vietnam War. 393 U.S. at 504. Upon learning of

this plan, the Des Moines Independent School District

adopted a policy prohibiting students from wearing such armbands, apparently fearing the disturbance they might cause.

Id. at 504, 508. When the students were suspended for violating the no-armband policy, they filed suit, arguing that the

policy violated their rights to free speech under the First

Amendment. Id. at 504. 

The Supreme Court agreed, holding that, “[i]n order for the

State in the person of school officials to justify prohibition of

a particular expression of opinion, it must be able to show that

its action was caused by something more than a mere desire

to avoid the discomfort and unpleasantness that always

accompany an unpopular viewpoint.” Id. at 509. The Court

further explained:

[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the

right to freedom of expression. Any departure from

absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear.

Any word spoken, in class, in the lunchroom, or on

the campus, that deviates from the views of another

person may start an argument or cause a disturbance.

But our Constitution says we must take this risk; and

our history says that it is this sort of hazardous

freedom—this kind of openness—that is the basis of

our national strength and of the independence and

vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5195
Id. at 508-509 (internal citation omitted). 

[5] In short, the Court made clear that suppressing the

expression of unpopular or controversial opinions—even in

the name of avoiding potential in-school disturbances—was a

violation of the First Amendment unless the school could

show that, absent such suppression, the school’s orderly operation would be “materially and substantially” compromised.

Id. at 509. 

[6] Despite Plaintiffs’ attempt to read Tinker more broadly,

this is all Tinker expressly holds. Two things are notable

about this limited holding. First, as the Court itself made

clear, its “substantial interference” test applies only to restrictions on “pure speech,” and does not necessarily apply to

school policies placing incidental restrictions on expressive

conduct. See id. at 507-08 (“The problem posed by the present

case does not relate to regulation of the length of skirts or the

type of clothing, to hair style, or deportment.”); King v. Saddleback Jr. Coll. Dist., 445 F.2d 932 (9th Cir. 1971) (declining to employ Tinker analysis to student’s claim that policy

disallowing long hair for male students violated the First

Amendment). Thus, Tinker leaves unresolved the question of

how restrictions upon expressive conduct in schools should be

evaluated.25 But see generally Texas v. Johnson, 491 U.S. 397,

406 (1989) (“The government generally has a freer hand in

restricting expressive conduct than it has in restricting [pure

speech].”). 

[7] Second, the holding itself extends only to viewpointbased speech restrictions, and not necessarily to viewpointneutral speech restrictions. Although these two terms of art

had not yet been used by the Supreme Court when Tinker was

decided in 1969, see Young v. Am. Mini Theatres, Inc., 427

U.S. 50 (1976), the Tinker opinion makes clear that the

Court’s principal objection to the armband prohibition was

25We take up this as-yet unresolved question in Part II.A.1.c. 

5196 JACOBS v. CLARK COUNTY SCHOOL DIST.
that it was motivated by a “desire to avoid the discomfort and

unpleasantness that . . . accompany an unpopular viewpoint.”

393 U.S. at 509 (emphasis added). In essence, the Court found

the armband prohibition unconstitutional not simply because

it worked to prohibit students from engaging in a form of pure

speech, but because it did so based on the particular opinion

the students were espousing. Id. at 510-11 (finding it significant “that the school authorities did not purport to prohibit the

wearing of all symbols of political or controversial significance, . . . [but only] the wearing of armbands . . . worn to

exhibit opposition to this Nation’s involvement in Vietnam”).

Although a slightly more expansive reading of Tinker suggests that its mode of analysis should also be used when a

school’s regulation is content-based (not only when it is

viewpoint-based),26 no reading of Tinker suggests that

viewpoint- and content-neutral restrictions on student speech

should also be subjected to “Tinker scrutiny.” Indeed, neither

this court nor the Supreme Court has ever analyzed a contentneutral restriction on student speech under Tinker; rather, the

Tinker test has only been employed when a school’s restrictions have been based, at least in part, on the particular messages students were attempting to communicate.27

26As Supreme Court jurisprudence since Tinker has made clear,

viewpoint-based and content-based restrictions on speech are, for the most

part, equally pernicious and, thus, restrictions of either variety must ordinarily be subjected to the same degree of scrutiny. See, e.g., Bartnicki v.

Vopper, 532 U.S. 514, 544 (2001); Nat’l Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1055 (9th Cir.

2000) (both viewpoint-based and content-based speech restrictions trigger

strict scrutiny). 

27See Tinker, 393 U.S. at 509; Pinard v. Clatskanie Sch. Dist. 6J, 467

F.3d 755 (9th Cir. 2006) (students suspended for signing petition criticizing football coach); LaVine v. Blaine Sch. Dist., 257 F.3d 981 (9th Cir.

2001) (student expelled for showing teacher poem he wrote containing

imagery of violent death and suicide); Chandler, 978 F.2d at 529 (students

prohibited from wearing buttons containing the word “scab” during a

teacher strike); Karp v. Becken, 477 F.2d 171 (9th Cir. 1973) (student susJACOBS v. CLARK COUNTY SCHOOL DIST. 5197
It is thus our view that Tinker says nothing about how

viewpoint- and content-neutral restrictions on student speech

should be analyzed, thereby leaving room for a different level

of scrutiny than that employed in either Bethel, Hazelwood, or

Tinker when student speech is restricted on a viewpoint- and

content-neutral basis. Accord Canady, 240 F.3d at 441-43.28

b. District’s School Uniform Policies Are

Viewpoint- and Content-Neutral

Before turning to precisely what level of scrutiny that

should be, we pause to explain why we find the school uniform policies at issue in this case to be both viewpoint- and

pended for attempting to distribute signs protesting school’s refusal to

renew an English teacher’s contract); Hatter v. L.A. City High Sch. Dist.,

452 F.2d 673 (9th Cir. 1971) (students suspended for distributing leaflets

and wearing tags opposing school’s chocolate drive). 

To our knowledge, every other circuit has applied Tinker in this manner, as well. See, e.g., Guzick v. Drebus, 431 F.2d 594 (6th Cir. 1970)

(applying Tinker when student suspended for refusing to remove an antiwar button), cert. denied, 401 U.S. 948 (1971); Scoville v. Bd. of Educ. of

Joliet High Sch. Dist. 204, 425 F.2d 10 (7th Cir. 1970) (applying Tinker

when students expelled for distributing a non-school-sponsored newspaper

critical of the school); see also Behymer-Smith v. Coral Acad. of Sci., 427

F. Supp. 2d 969 (D. Nev. 2006) (applying Tinker when student prohibited

from reciting poem containing the words “hell” and “damn”). 

Although the Supreme Court recently suggested that there are some

instances in which even content-based restrictions may be analyzed under

a less demanding standard than that used in Tinker, see Morse v. Frederick, 127 S. Ct. 2618 (2007) (upholding school’s ban on sign reading

“Bong Hits 4 Jesus” even though it did not “substantially disrupt the work

and discipline of the school”), the Morse holding in no way contradicts

our holding here—i.e., that content-neutral speech restrictions need not

withstand Tinker scrutiny either. 

28This conclusion does not contradict Chandler, as Plaintiffs contend,

but merely recognizes that there exists a fourth category of student speech

that had not been explored by either this court or the Supreme Court prior

to Chandler and, thus, was left unaccounted for in that case’s recitation of

student speech law. 

5198 JACOBS v. CLARK COUNTY SCHOOL DIST.
content-neutral29 and, thus, deserving of a different level of

scrutiny than that applied to the viewpoint-based policy in

Tinker. 

[8] On its face, the portion of the Regulation authorizing

schools to implement mandatory uniform policies is aimed at

“increasing student achievement, promoting safety, and

enhancing a positive school environment.” Nothing in the

Regulation’s language suggests it was directed at the type of

messages or specific viewpoints previously conveyed by students’ wardrobe choices; indeed, the record evidence unambiguously indicates that the District’s purpose in enacting the

Regulation was to further the Regulation’s stated goals, not to

suppress the expression of particular ideas.30 For example, the

referendum sent to parents listing the advantages and disadvantages of the proposed uniform policy included as potential

advantages: (1) “Promot[ing] safety by reducing the ability to

hide weapons, drugs or alcohol”; (2) “Allow[ing] students and

staff to focus more attention to increasing student achievement”; (3) “Eliminat[ing] dress differences that emphasize

different income levels”; and (4) “Simplif[ying] daily school

preparation and maintenance for families.” None of the proposed advantages related to the “benefits” of preventing students from expressing unpopular views or communicating

about particular subjects via their clothing choices. 

Of course, while evidence of a viewpoint- and content29From this point forward (unless otherwise noted), we use the term

“content-neutral” to capture the dual concepts of viewpoint-neutrality and

content-neutrality, and do the converse with the term “content-based.” See

supra note 26 (explaining that viewpoint- and content-based speech

restrictions are equally disfavored in First Amendment jurisprudence and,

thus, are interchangeable insofar as they are both subject to the same

degree of judicial scrutiny). 

30See Turner, 512 U.S. at 642 (“[T]he principal inquiry in determining

content neutrality is whether the government has adopted a regulation of

speech because of agreement or disagreement with the message it conveys.” (internal quotation marks, citation, and alterations omitted)). 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5199
neutral purpose strongly suggests that a regulation is, in fact,

content-neutral, mere assertion of a benign purpose is insufficient to conclusively establish a regulation’s contentneutrality. Turner, 512 U.S. at 642. Here, Plaintiffs argue that,

despite the District’s stated purposes, the Regulation is not

content-neutral because it allows student clothing to contain

the school logo—an allowance that, in Plaintiffs’ view, sanctions expression of messages touting the District’s schools,

but not messages relating to any other topic or viewpoint. 

At first blush, Plaintiffs’ argument seems viable. Indeed, if

the Regulation allowed for school uniforms that consisted

only of plain-colored clothing without any words, logos, or

printed material whatsoever, Plaintiffs’ argument against the

Regulation’s content-neutrality would almost certainly fall

flat. As it stands, however, Plaintiffs have at least a colorable

claim that, by allowing student clothing to contain school

logos, the Regulation reflects an impermissible content-based

(and, indeed, viewpoint-based) preference for expressions of

school pride. 

[9] While the 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 message—does not convert a content-neutral school uniform policy into a content-based one. 

Indeed, the District’s very narrow exception to its otherwise content-neutral school uniform policy is a far cry from

those regulations previously found by the Supreme Court to

be content-based. See, e.g., United States v. Playboy Entm’t

Group, Inc., 529 U.S. 803 (2000) (statute restricting cable

companies’ dissemination of sexual programming); City of

Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993)

(ordinance banning commercial handbills on news racks but

allowing newspapers); Boos v. Berry, 485 U.S. 312 (1988)

5200 JACOBS v. CLARK COUNTY SCHOOL DIST.
(statute prohibiting display of signs critical of a foreign government near a foreign embassy); Carey v. Brown, 447 U.S.

455 (1980) (statute prohibiting all picketing in residential

neighborhoods except labor picketing tied to a place of

employment); Police Dep’t of City of Chi. v. Mosley, 408 U.S.

92 (1972) (similar); see also ACLU of Nev. v. City of Las

Vegas, 466 F.3d 784 (9th Cir. 2006) (ordinance prohibiting

speech soliciting donations, “charity, business or patronage”).

[10] Moreover, “[w]hatever marginal expression wearing [a

school] logo implicates, it does not rise to the level of expression to implicate concerns of viewpoint [non-] neutrality.”

Long v. Bd. of Educ. of Jefferson County, Ky., 121 F. Supp.

2d 621, 625 n.5 (W.D. Ky. 2000). The content-based/contentneutral dichotomy is not grounded in the text of the First

Amendment itself, but was created by the Supreme Court as

a tool for distinguishing those regulations that seek to advance

“legitimate regulatory goals” from those that seek to “suppress unpopular ideas or information or to manipulate the

public debate through coercion rather than persuasion.” Turner, 512 U.S. at 641. Here, Plaintiffs put forth no evidence

that the Regulation’s logo allowance was an attempt by the

District to inundate the marketplace of ideas with pro-school

messages or to starve that marketplace of contrary opinions;

rather, all evidence suggests that the District considered the

logo to be an identifying mark, not a communicative device.

[11] We thus decline Plaintiffs’ invitation to take the term

“content-based” to its literal extreme, and we hold that the

District’s school uniform policies are content-neutral despite

their allowances for clothing containing school logos.31

31We also reject Plaintiffs’ argument that the Regulation is viewpointbased because it allows students to convey messages of conformity, but

prohibits students like Dresser from expressing their views about nonconformity. First, it is unlikely students complying with a school uniform

policy would be viewed by others as communicating their approval for

conformity, see Spence, 418 U.S. at 410-11, thus undermining Dresser’s

JACOBS v. CLARK COUNTY SCHOOL DIST. 5201
c. Intermediate Scrutiny Is the Appropriate

Standard

As discussed above, the school uniform policies at issue

here implicate the First Amendment only insofar as they place

content-neutral restrictions on students’ pure speech and place

incidental restrictions on students’ expressive conduct.32

Because neither type of restriction is governed by Tinker, see

supra Part II.A.1, we must now decide how to evaluate the

constitutionality of these policies. 

[12] Outside the school speech context, the Supreme Court

has repeatedly held that a law restricting speech on a

viewpoint- and content-neutral basis is constitutional as long

as it withstands intermediate scrutiny—i.e., if: (1) “it furthers

an important or substantial government interest”; (2) “the

governmental interest is unrelated to the suppression of free

expression”; and (3) “the incidental restriction on alleged First

Amendment freedoms is no greater than is essential to the furtherance of that interest.” Turner, 512 U.S. at 661-62. The

same is true of a regulation that has an incidental effect on

expressive conduct. United States v. O’Brien, 391 U.S. 367,

376-77 (1968).33

argument that his school’s uniform policy facilitates communication of

conformist messages at all. Second, under Dresser’s logic, any policy

requiring students to behave like their fellow students could be seen as

favoring conformity and disfavoring non-conformity, yet nobody would

seriously contend that requiring students to raise their hands before speaking, being polite to classmates, or—perhaps most relevant to this case—

wearing a gym uniform, would be a viewpoint-based “speech” restriction

containing an implicit preference for conformist “expression.” 

32Notably, these restrictions apply only during the school day and do not

limit all speech, just “speech” that is communicated via students’ clothing.

33O’Brien contemplates a fourth prong of the intermediate scrutiny

analysis—namely, that the regulation be within the government’s power

to enact. 391 U.S. at 377. Because Plaintiffs do not question the District’s

power to implement mandatory school uniform policies under N.R.S.

§ 392.458, no further discussion of this prong is necessary. Accord Littlefield, 268 F.3d at 286. 

5202 JACOBS v. CLARK COUNTY SCHOOL DIST.
[13] We agree with the district court that this same level of

scrutiny should extend to the school speech context. See

Jacobs, 373 F. Supp. 2d at 1181; accord Canady, 240 F.3d at

443.34 Applying intermediate scrutiny to school policies that

effect content-neutral restrictions upon pure speech or place

limitations upon expressive conduct (or, as is the case here, do

both) not only strikes the correct balance between students’

expressive rights and schools’ interests in furthering their educational missions, but, as the Fifth Circuit explained, is

entirely consistent with the Supreme Court’s other school

speech precedents, not to mention the remainder of the

Court’s First Amendment jurisprudence. See Canady, 240

F.3d at 442-43.35

[14] Accordingly, if the District’s school uniform policies

advance important government interests unrelated to the suppression of free speech, and do so in ways that effect as minimal a restriction on students’ free expression as possible,36

34If anything, the scrutiny should be even less demanding, as “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings, and . . . the rights of

students must be applied in light of the special characteristics of the school

environment.” Morse, 127 S. Ct. at 2622 (internal quotation marks and

citations omitted). Because we find that the District’s school uniform policies withstand intermediate scrutiny, however, we have no occasion to

consider whether an even more lenient standard would be consistent with

the Constitution. 

35Although we have never applied intermediate scrutiny in the student

speech context, we have recently suggested that the standard might be

appropriate for “assessing content-neutral regulations that restrict [student]

speech or inherently expressive conduct.” See Pinard, 467 F.3d at 759 n.1

(declining to apply intermediate scrutiny because parties did not brief the

issue, but inviting parties to explore that issue on remand). 

36While “the incidental restriction on alleged First Amendment freedoms [must be] no greater than is essential to the furtherance of [the government’s] interest, . . . a regulation need not be the least speechrestrictive means of advancing the [g]overnment’s interests,” Turner, 512

U.S. at 662 (emphasis added); it need only promote “a substantial government interest that would be achieved less effectively absent the regulation,” id. (internal quotation marks and citations omitted). 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5203
then the uniform policies should be upheld. We now turn to

whether those criteria are satisfied here.

2. Applying Intermediate Scrutiny

a. School Uniform Policies Further Important

Government Interests

The District claims its uniform policies further three important state interests: (1) “increasing student achievement”; (2)

“promoting safety”; and (3) “enhancing a positive school environment.”37 The District supports its claim with affidavits

from school personnel confirming that the school uniform

policies were implemented with these purposes in mind and

that the policies have, in fact, been effective in advancing

these goals. 

[15] Plaintiffs do not contend that the District’s stated interests are unimportant or insignificant. Instead, they argue that,

even though these interests may be laudable, the District’s

real justification for its uniform policies was its goal of “visible conformity”—an interest Plaintiffs argue is not important

or substantial. But this is not how the intermediate scrutiny

test works. Indeed, a court’s job in evaluating a policy under

this test’s first step is to determine whether the government’s

stated goals qualify as important or substantial. See Turner,

512 U.S. at 664 (specifically, the court must determine

whether the government’s evidence “demonstrate[s] that the

recited harms are real, not merely conjectural and that the regulation will in fact alleviate these harms in a direct and material way”). Whether those stated goals are mere pretexts for

37The stated purpose of the dress code was not simply to “promote

‘school spirit.’ ” The dissent relies on the affidavit of Donald Jacobs for

this assertion, but such reliance is not appropriate on summary judgment,

and, in any event, the affidavit certainly does not constitute the “stated

purpose” of the dress code. The actual purpose of the dress code—student

achievement, safety, positive school environment—is stated explicitly in

the regulation and reflects important government interests. 

5204 JACOBS v. CLARK COUNTY SCHOOL DIST.
a more insidious government purpose is taken up in the second and third steps of the analysis. See id.; O’Brien, 391 U.S.

at 377-80. 

[16] Here, the government’s stated goals unquestionably

qualify as “important.” See Canady, 240 F.3d at 443-44 (finding comparable goals sufficiently important to withstand

intermediate scrutiny); Blau v. Fort Thomas Public Sch. Dist.,

401 F.3d 381, 391-92 (6th Cir. 2005) (“[B]ridging socioeconomic gaps between families within the school district,

focusing attention on learning, increasing school unity and

pride, enhancing school safety, promoting good behavior,

reducing discipline problems, improving test scores, improving children’s self-respect and self-esteem, helping to eliminate stereotypes and producing a cost savings for families . . .

are all important governmental interests [served by a school

uniform policy].”). Indeed, it is hard to think of a government

interest more important than the interest in fostering conducive learning environments for our nation’s children. 

[17] Additionally, not only do affidavits from District

administrators indicate that the school uniform policies have

been effective in achieving the Regulation’s three goals—

which itself is evidence that the contemplated “harms are

real” and that the policies do “in fact alleviate these harms in

a direct and material way,” Turner, 512 U.S. at 664—the

Department of Education has also acknowledged the efficacy

of school uniforms in advancing such state interests. See U.S.

Dep’t of Ed. Manual on Sch. Uniforms (1996), available at

http://www.ed.gov/updates/uniforms.html.38 In the absence of

38This manual lists as the potential benefits of school uniform policies:

• Decreasing violence and theft—even life-threatening

situations—among students over designer clothing or expensive sneakers; 

• Helping prevent gang members from wearing gang colors and

insignia at school; 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5205
any evidence from Plaintiffs that the uniform policies fail to

advance the important government interests of increasing student achievement, enhancing safety, and creating a positive

school environment, we conclude that the first prong of the

intermediate scrutiny test is satisfied. 

b. The District’s Interests Are Unrelated to the

Suppression of Free Expression

Because the District’s stated interests are “unrelated to the

suppression of free expression,” we conclude that the second

prong of the intermediate scrutiny test is satisfied, as well. See

Turner, 512 U.S. at 662; O’Brien, 391 U.S. at 377. 

[18] On their face, the District’s goals have nothing to do

with quelling speech or limiting expression. Accord Castorina

ex rel. Rewt v. Madison County Sch. Bd., 246 F.3d 536, 548

(6th Cir. 2001) (Kennedy, J., concurring) (“[A] stable,

disruption-free educational environment is a substantial government interest . . . unrelated to the suppression of student

expression.”). Additionally, the record is devoid of any evidence suggesting that the District’s stated goals were mere

pretexts for its true purpose of preventing students from

expressing their views on particular subjects, such as support

for a particular faith (in Jacobs’s case) or opposition to conformity (in Dresser’s case). The District may have known that

views like these would be incidentally suppressed because of

its schools’ uniform policies; however, its reasons for enacting the uniform policies were—as far as the record reveals—

entirely divorced from preventing student speech. 

• Instilling students with discipline; 

• Helping parents and students resist peer pressure; 

• Helping students concentrate on their school work; and 

• Helping school officials recognize intruders who come to the

school. 

5206 JACOBS v. CLARK COUNTY SCHOOL DIST.
[19] Again, the referendum sent home to parents is telling.

Although the District acknowledges in this referendum that its

school uniform policies would limit student creativity and

restrict students’ freedom to express themselves in nonviolent ways, it lists these effects in the “Cons - Disadvantages” column, thus implying that the District enacted the

Regulation authorizing school uniforms not because of, but in

spite of, the impact school uniform policies would have on

students’ expressive opportunities. We thus conclude that the

District’s interests are not pretexts for an underlying desire to

limit free speech but, rather, are directed only at creating an

educational environment free from the distractions, dangers,

and disagreements that result when student clothing choices

are left unrestricted. Cf. City of Renton v. Playtime Theatres,

Inc., 475 U.S. 41, 48 (1986) (expressing less First Amendment concern regarding policies “aimed not at the content” of

the forbidden speech, but rather at the “secondary effects” of

that speech).39

c. The District’s School Uniform Policies Do Not

Restrict More Speech Than Necessary

The third prong of the intermediate scrutiny test has been

stated in several forms but, for purposes of this case, it

focuses on whether the regulation “leave[s] open ample alternative channels” for student communication. Colacurcio v.

City of Kent, 163 F.3d 545, 551 (9th Cir. 1998). 

39We reject Plaintiffs’ argument in response—i.e., that a school policy

that purports to regulate conduct, but “specifically includes a prohibition

on all messages in the actual text of the policy,” is necessarily related to

the suppression of communication. To start, the Regulation nowhere references “messages” or “writing” in its text. Although it does limit students’

clothing choices to plain-colored (or school logoed) clothing, and this does

prevent students’ clothing from containing written messages, if preventing

expression of such messages were the primary aim of requiring clothing

to be solid-colored, then striped, polka-dot, or plaid clothing would have

been permitted, as would clothing of all colors, not just a select few. 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5207
[20] As the district court appropriately noted, although the

school uniform policies may limit students’ abilities to

express themselves via their clothing choices, “students may

continue to express themselves through other and traditional

methods of communication throughout the school day.” For

example, students are still permitted (if not encouraged) to

have verbal conversations with other students, publish articles

in school newspapers, and join student clubs. Moreover, even

a student’s ability to communicate through his or her choice

of clothing is not completely curtailed, as students are still

permitted to choose what clothing to wear after school, on

weekends, and at non-school functions. 

[21] Because the District’s uniform policies limit only one

form of student expression (while leaving open many other

channels for student communication) and apply during the

narrowest possible window consistent with the District’s

goals of creating a productive, distraction-free educational

environment for its students,40 the District’s uniform policies

are a narrowly-tailored way of furthering the District’s pedagogical goals without infringing upon students’ First Amendment rights any more than is necessary to achieve these goals.

See Turner, 512 U.S. at 661-62; O’Brien, 391 U.S. at 376-77.

Accordingly, the policies withstand intermediate scrutiny and

do not unconstitutionally abridge a student’s rights under the

First Amendment to engage in free speech while at school. 

B. Compelled Speech

Plaintiffs next argue that the District’s uniform policies

infringe upon students’ First Amendment rights because they

compel students to express support for conformity—a message with which students like Dresser disagree.41 Although the

40The Regulation limits the uniform policy’s enforcement to only “regular school hours while in attendance at the school or school approved functions.” 

41Because Dresser is the only plaintiff who claims that, by being

required to wear his school uniform, he was compelled to communicate a

message with which he disagreed, we analyze Plaintiffs’ compelled speech

argument by considering only Dresser’s allegations. 

5208 JACOBS v. CLARK COUNTY SCHOOL DIST.
district court did not address this argument in its order granting summary judgment, Plaintiffs did raise the argument both

to the district court and in their opening brief here; thus, we

will consider the contention on appeal. Donovan v. Crisostomo, 689 F.2d 869, 874 (9th Cir. 1982). 

[22] Dresser contends that uniforms usually convey symbolic messages, see, e.g., Daniels v. City of Arlington, Tex.,

246 F.3d 500, 504 (5th Cir. 2001) (wearing police uniform

conveys message of government-sanctioned authority), and

thus that, by requiring him to wear a school “uniform,”

Bridger compelled him to convey a symbolic message—here,

support for conformity and community affiliation—against

his will. We disagree. First, although there are times when

“wearing a uniform is expressive, identifying the wearer with

other wearers of the same uniform, and with the ideology or

purpose of the group,” Church of Am. Knights of the Ku Klux

Klan v. Kerik, 356 F.3d 197, 206 (2d Cir. 2004), wearing

Bridger’s school uniform (which, here, consists of nothing

more than 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 member of the Ku Klux Klan and, presumably, as a subscriber to its views.42

[23] Second, given both “the nature of [Dresser’s] activity”

and “the factual context and environment in which it was

undertaken,” the likelihood that a person viewing Dresser

wearing his mandated school uniform would have understood

Dresser to be conveying a message of conformity is extremely

small. Spence v. Washington, 418 U.S. 405, 410-11 (1974)

(per curiam) (finding conduct to be expressive only when that

42This does not necessarily mean that a student choosing to defy a

school’s mandatory uniform policy would not be communicating a message others could understand; it means only that wearing a solid-colored

top and khaki bottoms does not, itself, communicate a discernable message akin to that communicated by wearing Ku Klux Klan garb. 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5209
likelihood was “great”). Wearing a uniform does not involve

written or verbal expression of any kind, cf. Barnette, 319

U.S. at 628-29, 642 (requiring students to pledge allegiance

to the American flag each morning), it is passive rather than

active, cf. id., and if it conveys a message at all, that message

is imprecise, rather than “particularized,” cf. Spence, 418 U.S.

at 411. See Troster v. Pa. State Dep’t of Corr., 65 F.3d 1086,

1090-91 (3d Cir. 1995) (citing these reasons when concluding

that requiring state corrections officers to wear American flag

patch on their uniforms was not likely a form of compelled

speech). Indeed, Dresser puts forth no evidence to suggest

that, even though every student at Bridger was required to

wear the uniform, a person observing these similarly clad students would understand any of them to be expressing a personal affinity for conformity. See id. at 1092. 

Dresser’s argument that Bridger’s uniform policy amounts

to a form of “compelled speech” thus fails. Indeed, Bridger

does not force Dresser 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. Accord Littlefield v. Forney Indep. Sch. Dist.,

268 F.3d 275, 283-86 & n.8 (5th Cir. 2001). 

[24] In sum, we conclude that none of Plaintiffs’ speechrelated rights were violated by the District’s mandatory school

uniform policies and, thus, summary judgment in the Defendants’ favor on these claims was appropriate. 

III. Free Exercise Claims

Plaintiffs next contend that the District’s uniform policies

violated their First Amendment rights to free exercise of religion. See U.S. Const. amend. I. Specifically, they claim that

Liberty’s uniform policy unconstitutionally forbade Jacobs

from wearing shirts expressing her religious beliefs and that

Bridger’s refusal to grant Dresser an exemption from its uni5210 JACOBS v. CLARK COUNTY SCHOOL DIST.
form policy unconstitutionally forced Dresser to violate the

anti-conformity teachings of his religion. 

A. Jacobs’s Free Exercise Claim 

[25] Jacobs’s free exercise claim fails for the simple reason

that both the Regulation and the school uniform policy Liberty implemented thereunder were “valid and neutral law[s] of

general applicability” and, as such, did not implicate the Free

Exercise Clause at all. See Employment Div., Or. Dep’t of

Human Res. v. Smith, 494 U.S. 872, 879 (1990); cf. Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 531-32 (1993). There is no evidence in the record suggesting that Liberty was motivated to enact its uniform policy

because its administrators “disapprove[d] of a particular religion or of religion in general.” City of Hialeah, 508 U.S. at

532. Moreover, Liberty’s policy prohibits students like Jacobs

from wearing message-bearing t-shirts not because Liberty

feared students would undertake to do so for religious reasons, but because Liberty did not want students to encounter

any clothing-related distractions during the school day. Id.

Indeed, a school uniform policy like Liberty’s is the quintessence of a “neutral [rule] of general applicability.” Smith,

494 U.S. at 879. The policy applies to all students equally

(regardless of the students’ religious beliefs), and it prohibits

conduct (i.e., wearing clothing in colors and styles other than

that prescribed by the uniform policy) that presents no obvious impediments to the free exercise of any particular religion

or religions. Thus, like other regulations that have been found

to be “neutral” and “of general applicability,”

43 the District’s

43See, e.g, Smith, 494 U.S. at 890 (law prohibiting ingestion of peyote

valid even as applied to those whose religions required use of peyote in

religious ceremonies); Gillette v. United States, 401 U.S. 437 (1971)

(Selective Service System valid even as applied to those whose religions

opposed a particular war on religious grounds); Braunfeld v. Brown, 366

U.S. 599 (1961) (plurality opinion) (Sunday-closing law valid even as

JACOBS v. CLARK COUNTY SCHOOL DIST. 5211
Regulation (and the individual uniform policies it authorizes)

do not implicate the Free Exercise Clause. 

B. Dresser’s Free Exercise Claim 

Although Dresser makes a somewhat different free exercise

argument, our analysis is, in essence, the same. 

Dresser contends that his school arbitrarily denied him a

religious exemption from its mandatory uniform policy and

that this denial itself violated his free exercise rights. As the

district court concluded, Dresser is correct that his school was

not permitted to inquire into the validity or orthodoxy of

Dresser’s religious beliefs when deciding whether or not to

exempt him from its mandatory uniform policy. See Jacobs,

373 F. Supp. 2d at 1185 (citing Littlefield, 268 F.3d at 292-

93). The district court, however, already struck the religious

exemption on this ground—an aspect of its decision neither

party appeals. See id.

[26] Thus, the only argument Dresser can make now (other

than the argument that the district court’s remedy for curing

the Regulation’s grant of “unfettered discretion” to school

administrators impermissibly leaves the Regulation without

any religious exemption whatsoever—an argument that is

now moot)44 is that he is entitled to at least nominal damages

applied to those whose religious practices compelled them to refrain from

work on other days); Prince v. Massachusetts, 321 U.S. 158 (1944) (child

labor law valid even as applied to mother whose religion required her to

use her children to dispense literature in the streets); cf., e.g., City of Hialeah, 508 U.S. at 527, 535 (ordinance prohibiting anyone from “unnecessarily kill[ing], torment[ing], tortur[ing], or mutilat[ing] an animal in a

public or private ritual or ceremony” invalid because ordinance targeted

a particular Santeria religious practice). 

44After striking the Regulation’s overly discretionary religious exemption, the district court noted that it would be possible for the District to

include a valid religious exemption in its Regulation as long as the exemp5212 JACOBS v. CLARK COUNTY SCHOOL DIST.
based on Bridger’s prior refusal to grant him an exemption

from its uniform policy. As explained in the previous section,

however, the District’s school uniform policies are neutral

laws of general applicability and, thus, even if Dresser’s

beliefs about non-conformity were sincerely held and religious in nature, see Malik v. Brown, 16 F.3d 330, 333 (9th

Cir. 1994), he had no right under the Free Exercise Clause to

a religious exemption. Smith, 494 U.S. at 879. 

Accordingly, we conclude that the District’s mandatory

school uniform policies infringed upon neither Jacobs’s nor

Dresser’s free exercise rights.45

tion included “ ‘narrow, objective, and definite standards’ ” to constrain

school administrator discretion. See id. at 1185 & n.7 (quoting Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 151 (1969)). Responding

to this invitation, the District passed a re-revised regulation in August

2005, thus mooting Dresser’s objection to Bridger’s then-exemptionless

school uniform policy. The District’s revised regulation is not before the

court; thus, we express no opinion regarding its constitutionality or the

constitutionality of a uniform policy lacking any religious exemption. 

45We reject Plaintiffs’ contention that Jacobs and Dresser raise “hybrid

rights” claims that should be subjected to strict scrutiny. The “hybrid

rights” doctrine has been widely criticized, see, e.g., City of Hialeah, 508

U.S. at 566-67 (Souter, J., dissenting) (explaining why doctrine is “ultimately untenable”); Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d

177, 180 (6th Cir. 1993) (calling doctrine “completely illogical” and

declining to recognize doctrine until Supreme Court expressly does so

itself); Littlefield v. Forney Indep. Sch. Dist., 108 F. Supp. 2d 681, 704

(N.D. Tex. Aug. 3, 2000) (refusing to apply doctrine in school uniform

case because entire doctrine is likely based upon a misreading of Smith,

495 U.S. at 881-82), aff’d 268 F.3d 275 (5th Cir. 2001); Erwin Chemerinsky, Constitutional Law: Principles and Policies § 12.3.2.3 at 1215-16 (2d

ed. 2002) (calling doctrine’s contours “unclear”), and, notably, no court

has ever allowed a plaintiff to bootstrap a free exercise claim in this manner, see Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal.

4th 527, 557-58 (2004). We decline to be the first. 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5213
IV. Due Process Claims

Plaintiffs’ final contention is that their due process rights

were violated because they were each made subject to a mandatory school uniform policy that was implemented without

following the parental survey procedures included in the original Regulation.46

We first clarify that Plaintiffs are not making the due process argument typically made in school policy cases—i.e.,

that District schools disciplined students like Jacobs and Terry

for violating the mandatory uniform policies without first confirming, via “fundamentally fair procedures,” that the alleged

violations actually occurred. Cf. Goss v. Lopez, 419 U.S. 565,

574 (1975) (recognizing need for procedural due process

before student can be suspended and thereby deprived of her

“legitimate entitlement to a public education” and her interest

in her “good name, reputation, honor, [and] integrity”). Jacobs

and Terry admit they violated their schools’ uniform policies

and have never contended that they were disciplined—and, in

Jacobs’s case, repeatedly suspended—without being given

fair warning of the prohibited conduct or an opportunity to

explain their behavior. See id. at 579. 

Instead, Plaintiffs make the novel argument that the District

schools at issue violated due process when they acted in

“complete defiance of their own regulations” and instituted

46That Regulation required any school that chose to implement a uniform policy to “survey all families at the school” and to only implement

the policy if “at least fifty-one (51) percent of the surveys [were] returned

[and there was a] seventy percent favorable response supporting school

uniforms from the respondents.” 

According to Plaintiffs, Liberty initially implemented a uniform policy

without conducting a parental survey at all, Garside did so despite failing

to receive the required 51% response rate and 70% approval rate, and Glen

Taylor did so by improperly aggregating a series of parental surveys so

that the response and approval rates met the Regulation’s requirements. 

5214 JACOBS v. CLARK COUNTY SCHOOL DIST.
school uniform policies absent the requisite level of parental

approval. 

[27] As the district court correctly concluded, however,

even if the manners in which these District schools implemented their uniform policies violated the Regulation,

47 they

did not violate the Fourteenth Amendment. It has long been

recognized that individuals have no due process right to participate in government policymaking. See Bi-Metallic Inv. Co.

v. State Bd. of Equalization, 239 U.S. 441, 444-46 (1915) (due

process not violated when taxpayer adversely impacted by

new local ordinance was given no opportunity to be heard

before ordinance was passed). Moreover, Plaintiffs provide no

authority for their suggestion that a federal due process claim

lies whenever a local entity deviates from its own procedures

in enacting a local regulation.48 Accordingly, although it

might be preferable for schools to seek parental approval

before instituting controversial school policies, and it might

be a violation of state law for schools not to do so if a local

statute or regulation so dictates,49 the Due Process Clause in

no way requires this. See id. at 445. 

47And perhaps even N.R.S. § 392.458 (authorizing Nevada school districts to implement uniform policies, but only “in consultation with . . .

parents and legal guardians of pupils who are enrolled in the district”). 

48Of course, if the local rule itself were required by due process, then

a federal due process claim would surely lie. See, e.g., United States v.

James Daniel Good Real Prop., 510 U.S. 43, 62 (1993) (requiring a locality to “afford notice and a meaningful opportunity to be heard before seizing real property subject to civil forfeiture”). Here, however, that is not the

case. 

49See Jacobs v. Clark County Sch. Dist., No. CV-S-04-1490-RLH (D.

Nev. Nov. 10, 2004) (order granting preliminary injunction because Plaintiffs were likely to succeed on merits of state law statutory interpretation

claims that District schools implemented mandatory uniform policies in

violation of N.R.S. § 392.458 and the Regulation). 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5215
CONCLUSION

We thus affirm the district court’s grant of summary judgment in favor of the District. Neither the District’s Regulation

nor the individual school uniform policies implemented thereunder violate Plaintiffs’ free speech, free exercise, or due process rights. 

AFFIRMED.

THOMAS, Circuit Judge, dissenting: 

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.2

1The school policy stated that “Logos on tops will be excepted [sic]

only if they are Liberty High School logos or designs.” The affidavit of

Donald Jacobs states that he was told that “the sole reasons for imposing

discipline on Kim was that her shirts with religious messages did not conform to the Liberty School regulation that only allows pro-school messages on shirts.” He further averred that he has “observed that other

Liberty High School students wearing message bearing shirts, including

those with slogans touting the school’s athletic teams, have not been disciplined.” He stated that he “was told that since these messages promoted

the school, they were acceptable under the policy.” The school has conceded that a design bearing a school logo with the universal “no” symbol

through it (a circle with a diagonal line) would not be permitted under

school policy. 

2Although there are other plaintiffs and other claims, I will focus initially on Jacobs’ claim because it demonstrates my fundamental difference

with the analysis adopted by the district court and the majority. 

5216 JACOBS v. CLARK COUNTY SCHOOL DIST.
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. 

I

As everyone agrees, Chandler governs the analysis of student speech in our Circuit. Chandler establishes three categories of student speech: (1) vulgar, lewd, obscene, and plainly

offensive speech (analysis of which is governed by Bethel

School District Number 403 v. Fraser, 478 U.S. 675 (1986));

(2) school-sponsored speech (analysis of which is governed

by Hazelwood School District v. Kuhlmeier, 484 U.S. 260

(1988)); and (3) speech that does not fall into either of the

first two categories (analysis of which is governed by Tinker).

978 F.2d at 529. 

Everyone also agrees that the speech at issue in this case

does not fall under either of the first two categories. Therefore, under Chandler, the analysis must be controlled by Tinker. Id. However, rather than applying the plain terms of

Chandler, the district court and the majority have imported

and imposed a new analytical framework that cannot be reconciled with Supreme Court jurisprudence, or with ours. 

In examining student speech, the Supreme Court has consistently focused on the nature of the speech itself, as we recognized in Chandler. Id. If vulgar, lewd, obscene, and plainly

offensive speech is at issue, the Fraser analysis applies, and

the governmental regulation is reviewed in that context. When

JACOBS v. CLARK COUNTY SCHOOL DIST. 5217
school-sponsored speech is involved, the Hazelwood analysis

applies. When issues of speech and other expressive conduct

are involved, the Tinker analysis applies, and the governmental action is reviewed in that context. Id. In short, under the

Supreme Court’s analytical framework, and under ours, the

initial inquiry is the character of the speech at issue. Only

once that has been established do we examine the governmental response. 

The government has, to my dismay, urged an approach—

adopted by the district court and the majority—that amounts

to little more than an analytical sleight of hand, a trick of misdirection. Rather than examining the nature of the speech, the

majority has instead decided that the focus should be on the

regulation of the speech. If the regulation is content- and

viewpoint-neutral, the majority reasons, then the type of

expressive conduct at issue is irrelevant. In that instance,

regardless of the type of speech involved, a deferential level

of scrutiny applies. 

That reasoning, of course, is diametrically opposed to the

teachings of Fraser, Hazlewood, and Tinker. One need only

examine the facts of Tinker and Chandler to see the logical

disconnect. In Tinker, the Supreme Court held that a school

could not prohibit students from wearing black armbands. In

Chandler, we held that a school could not prohibit students

from wearing pro-teacher buttons. If we applied the Liberty

High School uniform policy to those cases, that policy would

have prohibited students in Tinker and Chandler from wearing those same armbands or buttons.3

 However, under the

3

In fact, the assistant principal of Glen Taylor Elementary School

informed another one of the plaintiffs in this case, Lona Finley, that her

child’s button, stating “say no to uniforms” violated the school’s dress

code as a “slogan or advertising on clothing which by [its] nature disrupt[s] the educational setting.” One can imagine that the students in Tinker

and Chandler would also have been so informed. Of course, Ms. Finley

was also told that “[t]he standard student attire policy was not the reason

Ms. Finley’s child was required to remove the button.” It was actually

5218 JACOBS v. CLARK COUNTY SCHOOL DIST.
majority’s analysis, this would not have resulted in a constitutional violation because the regulations were content- and

viewpoint-neutral. It is obvious that the majority’s holding

cannot be reconciled with Tinker and Chandler. It is the character of the speech, not the content of the governmental regulation that forms the framework of the First Amendment

analysis in student speech cases. 

II

The analysis of this case should have been conducted under

Tinker. In Tinker, the Supreme Court confirmed a student’s

right to free speech in public schools. In balancing that right

against the state’s interest in maintaining an ordered and

effective public education system, the Court declared that a

student’s speech rights could only be curtailed if the speech:

(1) would impinge on other students’ rights; or (2) would

result in a “substantial disruption of or material interference

with school activities.” 393 U.S. at 513-14. 

Here, there is no dispute that Kim Jacobs’ wearing of a Tshirt that contained pre-printed expressions of her religious

faith would not impinge on the rights of other students. Nor

is there any suggestion that her T-shirt could possibly have

resulted in a substantial disruption or material interference

with school activities. Plainly then, under the standard

described in Tinker, the school’s lengthy suspension of Jacobs

violated her First Amendment rights.

because the metal pin fastener “presented a safety hazard and the button

presented a disruption to the school environment.” Even if Ms. Finley’s

child had selected a pin with the same slogan, but fastened it to his or her

clothing with a “straight pin”—considered by Glen Taylor Elementary to

be a safer option—the record still suggests that the button would be considered impermissible as a “disruption.” This is clearly irreconcilable with

Chandler and Tinker. The record also shows that students at the same

school were allowed to wear shamrocks pinned on their shirts. 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5219
III

Even if we were to adopt the majority’s legal analysis and

assume Tinker only applies to viewpoint- and content-neutral

restrictions on student speech, the result in this case still cannot be sustained. The lynchpin of the majority’s reasoning—

that Liberty High School had a viewpoint- and content-neutral

regulation—is unsupported, even by the limited record at

hand. The school prohibits all messages on clothing, except

for messages that support the school. The literal language of

the rule describes logos and designs,4 but the affidavits provided in this case indicate that other messages were allowed,

so long as they expressed pro-Liberty sentiments.5

Confining messages to pro-government content cannot be

said to be viewpoint- or content-neutral. A regulation is content based “if either the main purpose in enacting it was to

suppress or exalt speech of a certain content, or it differentiates based on the content of speech on its face.” ACLU v. City

of Las Vegas, 466 F.3d 784, 793 (9th Cir. 2006). Here, shirts

with messages “touting the school’s athletic teams” are permitted, while a shirt bearing an anti-school spirit message

would be prohibited. A policy that allows students to wear

messages that express support of the school, while prohibiting

messages that oppose school policy cannot be considered

content-neutral: such a policy is indubitably content-based.

Indeed, expressing anti-government sentiments constitutes

paradigmatic political speech. Nor can a policy become

content-neutral merely because each student is forced to adopt

the message. Thus, on the face of this record, the Liberty High

School policy cannot be considered viewpoint- or contentneutral. 

4Liberty High School’s “Campus Wardrobe Basic Guidelines” provide

that “[t]ops must be solid color plan [sic] red, white or navy blue,” but that

“[l]ogos on tops will be excepted [sic] only if they are Liberty High

School logos or designs.” 

5For example, Jacobs’ father observed that shirts printed with “slogans

touting the school’s athletic teams . . . were acceptable under the policy.”

5220 JACOBS v. CLARK COUNTY SCHOOL DIST.
IV

Even assuming the majority’s analysis is correct and intermediate scrutiny applies, the school uniform policies at issue

here fail at step one of that analysis. As the majority agrees,

a viewpoint- or content-neutral restriction on speech is constitutional if (1) “it furthers an important or substantial government interest;” (2) “the governmental interest is unrelated to

the suppression of free expression”; and (3) “the incidental

restriction on alleged First Amendment freedoms is no greater

than is essential to the furtherance of that interest.” Turner

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 661-62 (1994) (internal quotation marks omitted) (quoting United States v.

O’Brien, 391 U.S. 367, 377 (1968)). 

So what is the “important or substantial” government purpose here? It is not, as some have suggested in similar contexts, to reduce socio-economic divisions. Rather, the state

purpose of the school uniform and printed message ban is to

promote “school spirit.” Assuming this is an important government purpose—an assumption indeed—the majority

neglects to consider whether the record demonstrates that the

school uniform policy actually furthers this interest. 

The school argues that the imposition of mandatory school

uniforms and the ban on expressive messages results in an

improvement of the educational process in individual schools

through increasing student achievement, promoting safety,

and enhancing a positive school climate. There is no empirical

evidence of this in the record, only conclusory affidavits filed

by school officials. Indeed, the only empirical evidence in the

record is that Kim Jacobs’ academic performance suffered as

the direct result of the imposition of the speech ban.6 On this

record, the governmental interest in promoting “school spirit”

6While Kim Jacobs did manage to keep her grades up despite being suspended for twenty-five days, she was penalized for the in-class work she

was forced to miss. 

JACOBS v. CLARK COUNTY SCHOOL DIST. 5221
cannot come close to outweighing Kim Jacobs’ First Amendment rights. 

V

There are, of course, other issues in this case, and it is easy

to be diverted by them. There is the broader question of freedom of dress. See Gowri Ramachandran, Freedom of Dress:

State and Private Regulation of Clothing, Hairstyle, Jewelry

and Makeup, Tattoos, and Piercing, 66 Md. L. Rev. 11

(2006). There are interesting and important questions about

the legal difference between dress codes (which limit the universe of clothing options) and mandatory uniform policies

(which define the universe of clothing). There is the question

of whether, following a Tinker analysis of Jacobs’ speech

claims, her Free Exercise Clause claims should be subjected

to strict scrutiny under a hybrid rights analysis. See Miller v.

Reed, 176 F.3d 1202, 1207-08 (9th Cir. 1999). All of these

issues, and more, form part of the larger question of the constitutionality of mandatory school uniforms. 

However, in the present context, these are questions that

need not be answered. The simple question for me is whether

the district court and the majority properly rejected the traditional Tinker analysis. Because I believe the law of our Circuit mandates that Tinker applies, I would reverse the

judgment of the district court and remand for a proper reexamination of the case under Tinker. I would not reach any

of the other issues urged by the parties. 

For these reasons, I respectfully dissent.

5222 JACOBS v. CLARK COUNTY SCHOOL DIST.