FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LARISSA WALN; BRYAN WALN, 

Plaintiffs-Appellants, 

 v. 

DYSART SCHOOL DISTRICT; DYSART SCHOOL 

DISTRICT GOVERNING BOARD; CHRISTINE 

PRITCHARD, Board Member; JAY LEONARD, 

Board Member; DAWN DENSMORE, Board Member; 

TRACI SAWYER-SINKBEIL, Board Member; 

JENNIFER TANNER, Board Member; QUINN 

KELLIS, Dysart Superintendent; VALLEY VISTA 

HIGH SCHOOL; ROBERTA LOCKHART, Valley 

Vista High School Principal; BRAD LARREMORE, 

Valley Vista High School Assistant Principal; STEVEN 

PIERCE, Valley Vista High School Assistant Principal, 

Defendants-Appellees.

No. 21-15737 

D.C. No. 2:20-cv-00799-

CDB 

OPINION

Appeal from the United States District Court

for the District of Arizona

Camille D. Bibles, Magistrate Judge, Presiding

Argued and Submitted July 27, 2022

San Francisco, California

Before: Susan P. Graber and John B. Owens, Circuit Judges, and M. Miller 

Baker,* International Trade Judge.

Opinion by Judge Graber;

Partial Concurrence and Partial Dissent by Judge Baker

* The Honorable M. Miller Baker, Judge for the United States Court of 

International Trade, sitting by designation.

FILED

DEC 9 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
SUMMARY**

Civil Rights

The panel reversed the district court’s dismissal of a complaint brought pursuant 

to 42 U.S.C. § 1983 asserting, among other things, that the Dysart School District, 

located in Phoenix, Arizona, violated plaintiff Larissa Waln’s rights to free exercise 

of religion and free speech by selectively enforcing its policy of prohibiting students 

from decorating their graduation caps.

Waln—an enrolled member of the Sisseton Wahpeton Oyate, a Native American 

tribe—asked the District to accommodate her religious practice by allowing her to 

wear an eagle feather on her cap during high-school graduation. The District 

declined the request on the ground that the policy permitted no exceptions. Waln 

arrived at graduation wearing an eagle feather, and District officials prohibited her 

from attending. But that same day, as alleged in the complaint, the District permitted 

other students to wear secular messages on their graduation caps.

The panel held that Waln plausibly alleged, at the motion-to-dismiss stage, that 

the District selectively enforced its policy, in violation of her First Amendment 

rights. As to the claim brought pursuant to the Free Exercise Clause, Waln alleged 

sufficient facts to assert that the District enforced its policy to permit the secular and 

forbid the religious. Altered graduation caps—whether with a secular message or a 

religious symbol—presented a nearly identical threat to the District’s interests in 

maintaining the sanctity and formality of the graduation ceremony, avoiding 

disruption, and fostering unity in the graduating class. As alleged, the District’s 

policy was not enforced evenhandedly and, therefore, was not generally 

applicable. Whether Waln could prove those allegations was a matter for another 

day.

Waln also carried her burden at this stage to show that the District’s selective 

enforcement of its policy constituted impermissible viewpoint or content 

discrimination, in violation of the First Amendment’s Free Speech Clause. The 

complaint plausibly alleged a discrepancy in treatment on the basis of viewpoint and 

** This summary constitutes no part of the opinion of the court. It has been 

prepared by court staff for the convenience of the reader.
that the District enforced its facially neutral policy in a selective way. The panel 

rejected the District’s argument that the restrictions were necessary in order for the 

District to comply with the Establishment Clause. The District had not sufficiently 

met its burden to show that accommodating religious dress for an individual student 

would have any effect on other students’ rights.

Concurring in part and dissenting in part, Judge Baker concurred in the judgment 

reversing as to Waln’s § 1983 claims for violations of her free exercise and free 

speech rights. Judge Baker respectfully dissented from the majority’s conclusion 

that these claims cleared the pleading standard enunciated in Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Nothing 

in Waln’s complaint tended to exclude the possibility that the student with the cap 

adorned with the secular message simply broke the rules. In Judge Baker’s view, 

the district court correctly determined that Waln’s complaint did not adequately 

allege plausible claims for relief under the Free Exercise or Free Speech Clauses 

based on selective enforcement. The district court erred, however, in declining to 

grant her leave to amend to correct these deficiencies.

COUNSEL

Matthew L. Campbell (argued) and David Gover, Native American Rights Fund, 

Boulder, Colorado; Reed C. Bienvenu, Rothstein Donatelli LLP, Santa Fe, New 

Mexico; Carolyn M. Nichols and Alicia C. Lopez, Rothstein Donatelli LLP, 

Albuquerque, New Mexico; April E. Olson and Glennas’ba Augborne Arents, 

Rothstein Donatelli LLP, Tempe, Arizona; for Plaintiffs-Appellants. 

Charles W. Wirken (argued), Robert D. Haws, and Brittany Reed, Gust Rosenfeld 

PLC, Phoenix, Arizona, for Defendants-Appellees.
 2 

GRABER, Circuit Judge:

The Dysart School District, located in Phoenix, Arizona, has a graduation 

policy that prohibits students from decorating their graduation caps. Plaintiff 

Larissa Waln1

—an enrolled member of the Sisseton Wahpeton Oyate, a Native 

American tribe—asked the District to accommodate her religious practice by 

allowing her to wear an eagle feather on her cap during high-school graduation. 

The District declined Plaintiff’s request on the ground that the policy permits no 

exceptions. Plaintiff arrived at graduation wearing an eagle feather, and District 

officials prohibited her from attending. But that same day, the District permitted 

other students to wear secular messages on their graduation caps.

Plaintiff brought the present action alleging those facts and asserting, among 

other things, that the selective enforcement of the policy violated her rights to the 

free exercise of religion and to free speech. The district court concluded that 

Plaintiff did not allege a plausible claim and dismissed the action with prejudice 

under Federal Rule of Civil Procedure 12(b)(6). Reviewing de novo the 

sufficiency of the complaint, Santa Monica Nativity Scenes Comm. v. City of 

Santa Monica, 784 F.3d 1286, 1291 (9th Cir. 2015), we disagree. Plaintiff 

plausibly has alleged that the District selectively enforced its policy in violation of 

1

 Larissa’s father, Bryan Waln, also is a Plaintiff. For the sake of clarity, when we 

refer to “Plaintiff” in the singular, we mean Larissa Waln.
 3 

her First Amendment rights. We therefore reverse and remand for further 

proceedings. 

BACKGROUND

We recount the facts as set out in the operative complaint and must accept as 

true all well-pleaded allegations, construed in the light most favorable to Plaintiff. 

Padilla v. Yoo, 678 F.3d 748, 751 n.1 (9th Cir. 2012).

Plaintiff long has participated in traditional and cultural practices of her 

Native American heritage and often participates in Native American religious 

ceremonies. An important part of her religious beliefs is the sacred nature of eagle 

feathers. In her religion, eagles have a special connection with God, and their 

feathers are considered sacred objects. Plaintiff’s “eagle plume was blessed in a 

religious ceremony.” Eagle feathers may not be covered or worn underneath a cap, 

which would be considered desecration or disrespect. And, by custom, they are 

worn “in times of great honor,” such as during a graduation ceremony. First Am. 

Compl. at 11.

The religious practice of wearing an eagle feather at a graduation has a 

particular history. In the 1870s, the federal government began removing Native 

American children from their parents and their homes and sending them to 

boarding schools. Those schools sought to assimilate Native Americans into 

western society, that is, to “kill the Indian . . . and save the man.” First Am. 
 4 

Compl. at 5 (quoting Zoey Serebriany, Right to Regalia: Let Those Feathers Fly at 

Graduation, Lakota People’s Law Project (June 3, 2019), 

https://www.lakotalaw.org/news/2019-06-03/right-to-regalia). “Native American 

children in boarding schools were forced to . . . get rid of their traditional regalia, 

and were punished for speaking their own language.” First Am. Compl. at 5. 

These schools practiced forced assimilation techniques, including denying food to 

boys with long hair, forcing pupils “to disavow their religious beliefs,” and 

teaching students that Native American religious and cultural practices were 

wrong. Serebriany, supra. Many children died. Id. As a result of that history, 

“[f]or some Native students, wearing an eagle feather may be just as important as 

receiving the actual diploma.” Id. Wearing these items allows Native students to 

honor their religious beliefs, pay respect to their ancestors, and recognize “the 

strength it took to reach this milestone” as individuals and as members of their 

tribal communities. See id.

In line with this religious practice, Plaintiff’s grandmother gave Plaintiff an 

eagle plume to wear at her high school graduation. The plume had been blessed in 

a religious ceremony in South Dakota. Plaintiff added the plume, among other 
5 

culturally significant items, to her graduation cap.2 Fully adorned, the cap looked 

like this:

First Am. Compl. at 12. Plaintiff “wanted to observe her religion and culture by 

wearing her beaded cap and sacred eagle plume during her high school graduation 

ceremony. This ritual held the same significance to the Waln family as other 

religions[’] transition ceremonies, such as a bar or bat mitzvah or confirmation.” 

First Am. Compl. at 11.

Plaintiff then learned of the District’s dress-code policy for graduation.3

 

Among other restrictions, the policy declares: “Students may NOT decorate their 

gown or cap.” Although some non-cap adornments are permitted (“school 

2

 Plaintiff also added a medicine wheel and beads. “On the Rosebud Sioux 

Reservation (the home of [Plaintiff’s father’s] tribe), it is tradition for all high 

school graduates to bead caps or wear beaded caps.” First Am. Compl. at 9.

3

 The District’s lawyer wrote that “[t]he District has imposed a reasonable 

restriction on student speech through its commencement dress code.” First Am. 

Compl. at 18. Additionally, the District’s superintendent is alleged to have been 

the final decision-maker. Accordingly, the policy is alleged to apply District-wide. 

Counsel so confirmed at oral argument.
6 

medallion and school approved honor cords and stoles may be worn over gown”), 

the policy makes clear that “no other adornment/additions are allowed.

Plaintiff’s father sought a religious accommodation for his daughter. He 

spoke to several school administrators and to the District’s superintendent. They 

denied his request. Plaintiff’s religious leader became involved. The District stuck 

to its policy.

On May 16, 2019, Plaintiff went to her graduation in Glendale, Arizona, 

wearing her decorated cap. School officials did not let her inside the venue. But 

that same day, at that same venue, other high school students from the District 

were permitted to participate in their graduation ceremony wearing caps that 

violated the dress-code policy. For example, one student was photographed 

wearing a “breast cancer awareness” sticker on his cap: 

First Am. Compl. at 21–22. And, as alleged in the complaint, he was not alone: 

“[O]ther students in the Dysart School District had adorned graduation caps or 
7 

wore prohibited items on their person during their graduation ceremonies.” First 

Am. Compl. at 23. 

Plaintiff brought this action against the District, among other defendants, 

seeking damages for three claims under 42 U.S.C. § 1983: (1) a violation of the 

Free Exercise Clause; (2) a violation of the Free Speech Clause; and (3) a violation 

of the Equal Protection Clause.4

 Defendants moved to dismiss the action under 

Rule 12(b)(6). The district court granted the motion and entered a final judgment 

in favor of all defendants. Plaintiff timely appealed.

On appeal, Plaintiff abandoned her federal claims against all defendants 

except for the District. Plaintiff also abandoned her equal protection claim. Thus, 

her sole challenge remains that she has adequately alleged free exercise and free 

speech claims against the District.

DISCUSSION

Plaintiff asserts that the District’s conduct violated both the Free Exercise 

and Free Speech Clauses of the First Amendment. “These Clauses work in 

tandem. Where the Free Exercise Clause protects religious exercises . . . the Free 

Speech Clause provides overlapping protection for expressive religious activities.” 

4

 Plaintiff, along with her father, also brought two state-law claims under Arizona 

law. The district court declined to exercise supplemental jurisdiction over those 

claims, and the sufficiency of those claims is not before us. 
 8 

Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421 (2022). Thus, the First 

Amendment “doubly protects religious speech.” Id.

“[A] plaintiff bears certain burdens to demonstrate an infringement of [her] 

rights under the Free Exercise and Free Speech Clauses.” Id. “If the plaintiff 

carries these burdens, the focus then shifts to the defendant to show that its actions 

were nonetheless justified and tailored consistent with the demands of our case 

law.” Id. Because the complaint adequately alleges that the District enforced its 

policy selectively, we conclude that Plaintiff carried her burden to assert both 

claims.

A. Free Exercise

Plaintiff claims that the District “prohibit[ed] the free exercise” of her 

“religio[us]” faith. U.S. Const. amend. I. Under this guarantee, a plaintiff must 

“show[] that a government entity has burdened [her] sincere religious practice 

pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’” Kennedy, 142 

S. Ct. at 2422 (citation omitted). General applicability requires, among other 

things, that the laws be enforced evenhandedly. Id. at 2423; see also Apache 

Stronghold v. United States, 38 F.4th 742, 770 (9th Cir. 2022) (“[A] law is not 

‘generally applicable’ if the law ‘impose[s] burdens only on conduct motivated by 

religious belief’ in a ‘selective manner.’” (second brackets in original) (quoting
 9 

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 543

(1993))); Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1079 (9th Cir. 2015) (same). 

Here, the complaint avers that “other students were permitted to adorn their 

graduation caps” in violation of the policy, but Plaintiff was not. And the 

complaint points to one student in particular who attended a high school graduation 

in the District—on the same day and at the same venue—sporting a “breast cancer 

awareness” sticker on his graduation cap, in apparent violation of the policy. If the 

District did not enforce the policy to exclude a student’s secular message then, in 

the absence of an appropriate justification, the District cannot enforce its policy to 

burden Plaintiff’s religious conduct.

The District argues that Plaintiff and the student in the photograph are not 

comparable. The two students attended different high schools within the District 

and different graduation ceremonies. For that reason, the District asserts, different 

school officials made decisions regarding enforcement of the District’s policy for 

each student. Thus, according to the District, the students’ activities—attending 

graduation and adorning their caps—present different circumstances in a material 

way.

But that argument misses the mark. “[W]hether two activities are 

comparable for purposes of the Free Exercise Clause must be judged against the 

asserted government interest that justifies the regulation at issue.” Tandon v. 
 10 

Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam). Here, the critical point is 

that, as alleged in the complaint, the District permitted secular conduct that 

contravened the legitimate government interests underlying the policy to the same 

degree that Plaintiff’s attire would have done. 

The District lists several interests that motivate its policy: maintaining the 

sanctity and formality of the graduation ceremony, avoiding disruption, and 

fostering unity in the graduating class. But altered graduation caps—whether with 

a secular message or a religious symbol—present a nearly identical threat to those 

interests. Plaintiff alleged sufficient facts to assert that the District enforced its 

policy to permit the secular and forbid the religious. Thus, it does not matter 

which high school within the District hosted the ceremony or which school 

officials enforced the policy. As alleged, the District’s policy was not enforced 

evenhandedly and, therefore, was not generally applicable.

The District further argues that the photograph depicting one example of a 

non-conforming graduation cap displaying a secular message is not comparable to 

Plaintiff’s religious adornment because, the District alleges, the photograph was 

not taken during the graduation ceremony. But a “Plaintiff’s complaint may be 

dismissed only when defendant’s plausible alternative explanation is so convincing 

that plaintiff’s explanation is im plausible [sic].” Starr v. Baca, 652 F.3d 1202, 

1216 (9th Cir. 2011). It is at least as plausible that the student in question wore the 
 11 

cap decorated with a secular sticker at the graduation ceremony itself, as the 

complaint alleges directly. Moreover, the complaint alleges that the graduation cap 

in the photograph is simply one example among other secularly decorated caps. 

Therefore, the complaint meets its burden to show that the District’s policy was 

selectively enforced and, accordingly, not generally applicable. See id. (“If there 

are two alternative explanations, one advanced by defendant and the other 

advanced by plaintiff, both of which are plausible, plaintiff’s complaint survives a 

motion to dismiss under Rule 12(b)(6).”).5

The dissent challenges the sufficiency of the allegations in Plaintiff’s first 

amended complaint, reasoning that the complaint does not permit the inference that 

the District enforced its policy selectively. With respect, the dissent 

mischaracterizes the allegations in the first amended complaint. Paragraph 5 

states:

Mere hours [after refusing to allow Plaintiff Larissa Waln to participate 

in the commencement ceremony wearing her beaded graduation cap 

and sacred eagle plume], the School District permitted another student 

to wear a cancer awareness sticker on his graduation cap, in full view 

of District employees. That student was permitted entry to his 

graduation ceremony in the same building just a few hours after Larissa 

was turned away.

Similarly, paragraphs 83 through 85 of the operative complaint allege:

5

 We need not and do not address Plaintiff’s other theories challenging the 

neutrality and general applicability of the District’s policy. 
 12 

83. That same day [of Larissa’s graduation], May 16, 2019, another 

student in the School District was not denied entry, but rather permitted 

to wear what appears to be a breast cancer awareness sticker on his 

graduation cap at the Shadow Ridge High School graduation, which 

was also held at State Farm Stadium after the Valley Vista High School 

graduation.

84. Shadow Ridge High School is likewise part of the Dysart School 

District.

85. Despite the District’s pronouncement that no student would be 

permitted to participate in any graduation ceremony with an adorned 

cap, this student participated with an adorned cap in full view of District 

and school faculty.

The dissent’s speculation that the student in question merely disobeyed the rules, 

without having received permission to wear the adorned cap, Dissent at 5–6, is 

improper when we are reviewing dismissal of a complaint, the allegations of which 

we must accept as true. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 

Nor is it relevant that the photograph incorporated in Paragraph 86 appears 

to have been taken after the graduation ceremony. The complaint includes it only

to show the nature of the altered graduation cap that the student allegedly had 

worn, with permission, at his graduation ceremony: “Here is a photo of the 

Shadow Ridge High School student’s adorned cap.” The complaint does not, and 

need not, allege that the illustrative photograph was taken during the ceremony 

itself; other paragraphs allege that the District allowed the student to wear the 

adorned cap during his graduation ceremony.
 13 

Finally, it is permissible for Plaintiff to allege “on information and belief” 

that additional students in the Dysart School District, other than the one pictured in 

Paragraph 86, wore adorned graduation caps during their graduation ceremonies. 

The dissent asserts that, because the graduation ceremonies were open to members 

of the public, Plaintiff is deemed to be aware of everything that happened at all the 

ceremonies, so they may not plead on information and belief. Dissent at 4–5. It is 

true that a fact ascertainable from a public record may not be alleged on 

information and belief. See Bertucelli v. Carreras, 467 F.2d 214, 215 n.4 (9th Cir. 

1972) (per curiam) (noting that the plaintiff could not allege on information and 

belief that the warrant issued to secure his arrest was not signed by a magistrate). 

But a plaintiff may plead facts on information and belief “where the belief is based 

on factual information that makes the inference of culpability plausible.” Soo Park 

v. Thompson, 851 F.3d 910, 928 (9th Cir. 2017) (quoting Arista Records, LLC v. 

Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)). That standard is met here because 

Plaintiff bases her belief on the specific factual example detailed above. In 

addition, it is an overstatement to assert that a plaintiff never may allege something 

on information and belief that occurs in public, on the ground that the facts are not 

solely within the defendant’s knowledge. Dissent at 4–5. If a large school district 

held twenty-five simultaneous graduation ceremonies, for example, a plaintiff 
 14 

could not have personal knowledge of what occurred at each one, but the school 

district would.

Perhaps most important here is that the first amended complaint alleges 

directly that the District has “permitt[ed] other students to express their activism 

and secular interests, through permitted or tolerated adornments on their caps,” 

First Am. Compl. at 25, and that “other students in the school district were not 

prohibited from adorning their caps with stickers explaining other viewpoints 

(namely, to raise awareness and/or funding for social causes).” First Am. Compl. 

at 28. Whether Plaintiff can prove those allegations is a matter for another day. 

In short, Plaintiff has carried her burden, at the motion-to-dismiss stage, to 

show that the District’s policy is not generally applicable because it was enforced 

in a selective manner. Thus, there is “a First Amendment violation unless the 

government can satisfy strict scrutiny,” Kennedy, 142 S. Ct. at 2422 (internal 

quotation marks omitted), which we address below in Part C. 

We turn next to whether Plaintiff has carried her burden to assert a claim 

under the Free Speech Clause.6

 

B. Free Speech

Plaintiff also claims that the District “abridg[ed]” her right to “free[] . . . 

6 In the dissent’s view, the same pleading defects affect Plaintiff’s free speech 

claim. Dissent at 7. Our response, likewise, is the same.
 15 

speech.” U.S. Const. amend. I. The Free Speech Clause generally prohibits 

suppressing speech “because of its message,” and the Supreme Court has enforced 

that prohibition in the public-school setting. Rosenberger v. Rector & Visitors of 

Univ. of Va., 515 U.S. 819, 828–29 (1995). Here, the parties do not dispute that, 

by wearing an eagle feather at graduation, Plaintiff sought to convey a particular 

message of academic achievement and resilience. Thus, our task is to determine 

whether the complaint adequately alleges that the District’s policy infringed on that 

protected speech in the school context.

The First Amendment “rights of students in public school are not 

automatically coextensive with the rights of adults” in non-school settings. Bethel 

Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). For public school students, 

we apply First Amendment rights “in light of the special characteristics of the 

school environment.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 

503, 506 (1969). We analyze restrictions on student speech in public schools

depending on the category in which the speech falls: “(1) vulgar, lewd, obscene, 

and plainly offensive speech, (2) school-sponsored speech, and (3) speech that falls 

into neither of these categories.” Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 

429 (9th Cir. 2008) (internal quotation marks and citation omitted). The third 

category is further divided into policies that discriminate based on viewpoint and 

policies that are content-neutral but applied in a discriminatory manner. Id. at 432 
 16 

& n.28.

To determine whether a school district infringed a student’s free-speech 

rights, we normally begin with a forum analysis. Nurre v. Whitehead, 580 F.3d 

1087, 1093 (9th Cir. 2009); Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 

797–98 (9th Cir. 2011). But we skip that step if the policy discriminates because 

of the “viewpoint” of the speaker. See Nurre, 580 F.3d at 1095 n.6 (noting that 

viewpoint discrimination is “impermissible no matter the forum”); see also Tinker, 

393 U.S. at 509 (ruling that viewpoint-based discrimination is impermissible if the 

government cannot show that the forbidden speech “would materially and 

substantially interfere” with educational operations (internal quotation marks and 

citation omitted)). “The government must abstain from regulating speech when the 

specific motivating ideology or the opinion or perspective of the speaker is the 

rationale for the restriction.” Rosenberger, 515 U.S. at 829. Viewpoint-based 

restrictions on speech are subject to strict scrutiny. See Kennedy, 142 S. Ct. at 

2426 (observing that “[a] similar standard” to strict scrutiny “generally obtains 

under the Free Speech Clause”); cf. Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 

171 (2015) (applying strict scrutiny to content-based restrictions on speech). 

Here, the District’s policy is, on its face, viewpoint neutral. It prohibits all

speech from all students on all graduation caps at the ceremony. See Christian 

Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez, 561 
 17 

U.S. 661, 694–95 (2010) (holding that an “all-comers” policy that requires all

student groups to accept all members does not discriminate on the basis of

viewpoint). But a policy that is “viewpoint neutral on its face may still be 

unconstitutional if not applied uniformly.” Alpha Delta Chi-Delta Chapter v. 

Reed, 648 F.3d 790, 803 (9th Cir. 2011).

In Alpha Delta, San Diego State University declined to register several 

Christian student groups because those groups’ membership requirements violated 

the school’s general non-discrimination policy. Id. at 795–96. But the record 

contained evidence that other student groups had membership requirements that 

appeared to violate the policy. Id. at 803–04. Thus, although the school’s policy 

was viewpoint neutral on its face, the plaintiffs offered evidence suggesting that it 

was not applied in a viewpoint neutral manner. Id. at 800–04. We emphasized 

that, although it was “possible that these groups were approved inadvertently 

because of administrative oversight, or that these groups have, despite the language 

in their applications, agreed to abide by the nondiscrimination policy,” the record 

did not adequately explain the as-applied discrepancy. Id. at 804. Accordingly, we 

reversed the district court’s grant of summary judgment and remanded for further 

proceedings. Id. 

Here, the complaint plausibly alleges that the District enforced its facially 

neutral policy in a selective way. Although Plaintiff was prohibited from 
 18 

expressing her religious message on her graduation cap, “other students in the 

school district were not prohibited from adorning their caps with stickers 

expressing other viewpoints . . . .” First Am. Compl. at 28. 

To be sure, as in Alpha Delta, several possibilities might explain the alleged 

violation of Plaintiff’s free-speech rights. It may be that the other students were 

not permitted to adorn their caps but did so defiantly or were permitted to adorn 

their caps by accident. But, as in Alpha Delta, the selective enforcement of the 

District’s policy renders it plausible that the rationale for the restriction was the 

opinion or perspective of the speaker, or the content of her expression. In short, in 

this case, the same facts that make the selective enforcement not “generally 

applicable” in the free-exercise context, make the selective enforcement not 

“content or viewpoint neutral” in the free-speech context. Therefore, at this 

procedural stage, Plaintiff has plausibly alleged a discrepancy in treatment on the 

basis of viewpoint.7

In short, Plaintiff has carried her burden, at the motion-to-dismiss stage, to 

7

 We need not and do not engage in a forum analysis because, regardless of the 

nature of the forum, viewpoint discrimination is “impermissible.” Nurre, 580 F.3d 

at 1095 n.6. Indeed, if we accepted the parties’ assertions that the District’s

graduation is a limited public forum, we still must ask whether the restrictions on 

student speech are “viewpoint neutral.” Alpha Delta, 648 F.3d at 798. Because 

Waln sufficiently alleged that the District’s policy is not viewpoint neutral, her 

allegations would survive even after a forum analysis.
 19 

show that the District’s selective enforcement of its policy constituted 

impermissible viewpoint or content discrimination. See Jacobs, 526 F.3d at 431 

n.26; see also id. at 432 n.29 (“[V]iewpoint- 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.”). Thus, Plaintiff alleged sufficient facts to show a First Amendment 

violation unless the government can satisfy strict scrutiny. See Kennedy, 142 S. 

Ct. at 2426; First Resort, Inc. v. Herrera, 860 F.3d 1263, 1277 (9th Cir. 2017) 

(recognizing that viewpoint discrimination is subject to strict scrutiny); Hoye v. 

City of Oakland, 653 F.3d 835, 853 (9th Cir. 2011) (applying strict scrutiny to an 

ordinance neutral on its face but content-based as applied); see also Boos v. Barry, 

485 U.S. 312, 318–319 (1988) (plurality opinion) (applying strict scrutiny where 

the line between subject matter and viewpoint was not obvious). 

We turn next to whether the District has met its burden at the pleading stage. 

C. The District’s Burden

“Whether one views the case through the lens of the Free Exercise or Free 

Speech Clause, at this point the burden shifts to the District.” Kennedy, 142 S. Ct. 

at 2426. As noted, the District must satisfy “strict scrutiny,” showing that “its 

restrictions on the plaintiff’s protected rights serve a compelling interest and are 

narrowly tailored to that end.” Id. Taking the allegations in the complaint as true, 
 20 

as we must, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007), the District 

cannot meet its burden. 

The District offers a single compelling interest: that it must comply with the 

Establishment Clause.8

 But, as the Supreme Court emphasized in Kennedy, the 

Establishment Clause does not “compel the government to purge from the public 

sphere anything an objective observer could reasonably infer endorses or partakes 

of the religious.” 142 S. Ct. at 2427 (internal quotation marks and citation 

omitted). To the contrary, “learning how to tolerate diverse expressive activities 

has always been part of learning how to live in a pluralistic society.” Id. at 2431 

(internal quotation marks and citation omitted). Thus the District has not 

sufficiently met its burden, at this stage, to show that accommodating religious 

dress for an individual student would have any effect on other students’ rights.9

8 The District does not argue that any of its other asserted interests, such as 

fostering unity, is “compelling.”

9

 Even if the Establishment Clause constituted a compelling interest in this case, 

the District’s policy is not the least restrictive means to further the government’s 

interest. At the time of the graduation, other schools in Arizona allowed students 

to wear religious items. Indeed, many state laws explicitly permit wearing eagle 

feathers at graduation. See, e.g., Cal. Educ. Code. § 35183.1; Mont. Code Ann. § 

2-1-315; N.D. Cent. Code Ann. § 15.1-19-28; Or. Rev. Stat. Ann. 

§ 329.451(14)(a); S.D. Codified Laws § 13-1-66; Wash. Rev. Code Ann. 

§ 28A.600.500. Arizona joined those states in 2021. Ariz. Rev. Stat. Ann. § 15-

348.
 21 

CONCLUSION

Plaintiff adequately has alleged that the District violated her First 

Amendment rights to the free exercise of religion and to the freedom of speech. 

Whether Plaintiff can prove her claims is not before us. But the district court erred 

by dismissing the complaint.10

REVERSED AND REMANDED.11

10 As stated in footnote 1, “Plaintiff” in the singular refers to Larissa Waln. We 

reverse the dismissal only of her § 1983 claims. On appeal, Plaintiff Bryan Waln 

asserts only that his state-law claims should be revived on remand. Because the 

district court rested its decision on the dismissal of all federal claims, we also 

reverse and remand as to Bryan Waln’s state-law claims.

11 Plaintiff’s request for judicial notice of several photographs available on the 

school district’s website, is GRANTED. See Daniels-Hall v. Nat’l Educ. Ass’n, 

629 F.3d 992, 998–99 (9th Cir. 2010) (“It is appropriate to take judicial notice of 

[information displayed on school districts’ public websites], as it was made 

publicly available by government entities (the school districts), and neither party 

disputes the authenticity of web sites or the accuracy of the information displayed 

therein.”); see also Fed. R. Evid. 201. 
Waln v. Dysart School Board, No. 21-15737

BAKER, Judge, concurring in part and dissenting in part:

Although I concur in the judgment reversing as to Plaintiff Larissa Waln’s

§ 1983 claims for violations of her free exercise and free speech rights, I respectfully 

dissent from the majority’s conclusion that these claims cleared the pleading standard enunciated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft 

v. Iqbal, 556 U.S. 662 (2009).

To survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a 

plaintiff’s complaint must “state a claim to relief that is plausible on its face.” 

Twombly, 550 U.S. at 570. Applied here, this means that Waln must provide “more 

than a sheer possibility that [the Dysart School District] has acted unlawfully” by 

“plead[ing] factual content that allows the court to draw the reasonable inference” 

that the District violated her First Amendment rights. Iqbal, 556 U.S. at 678. And 

while factual allegations contained within a complaint are accepted as true at this 

stage, this tenet does not apply to legal conclusions. Id.

I

A

To begin, I agree with my colleagues that Waln sufficiently alleged that wearing a beaded graduation cap adorned with an eagle feather was a religious practice

for First Amendment purposes. To establish a plausible claim under the Free Exercise Clause, a plaintiff must first show that the “government has placed a substantial 

FILED

DEC 9 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

burden on the observation of a central religious belief or practice.” Hernandez v. 

Comm’r of Internal Revenue, 490 U.S. 680, 699 (1989). We may not, however, assess the centrality of specific religious conduct, as “[i]t is not within the judicial ken 

to question the centrality of particular beliefs or practices to a faith.” Id.

In response, we have adopted the test that a practice must be “ ‘sincerely held’

and ‘rooted in religious belief’ ” to implicate Free Exercise Clause protection. Malik 

v. Brown, 16 F.3d 330, 333 (9th Cir. 1994); see also Shakur v. Schriro, 514 F.3d 

878, 884 (9th Cir. 2008) (citing Malik for this point). Because Waln sufficiently alleged that beading her graduation cap and adorning it with an eagle feather was 

rooted in her religion, the First Amendment presumptively protects this practice. The

district court therefore erred in holding that Waln needed to allege that the dresscode policy would compel a “violation of conscience” to trigger constitutional protection.

B

As the majority recognizes, the Free Exercise Clause does not require that a 

“valid and neutral law of general applicability” must necessarily give way to an individual’s sincerely held religious belief or practice. Emp. Div., Dep’t of Hum. Res. 

of Or. v. Smith, 494 U.S. 872, 879 (1990). The District’s policy—attached to the 

complaint as an exhibit—facially qualifies as such a rule, as its language is neutral 
3

and generally applicable to all graduates: “Students may NOT decorate their gown 

or cap.”

Waln’s complaint alleges “based on information and belief,” however, that 

“other students in the Dysart School District had adorned graduation caps or wore 

prohibited items on their person during the graduation ceremonies.” Waln’s complaint also alleges an example: “[A]nother student in the School District was not 

denied entry [to the graduation ceremony], but rather permitted to wear what appears 

to be a breast cancer awareness sticker” during graduation. (Emphasis added.) Waln 

alleges that “this student participated with an adorned cap in full view of District and 

school faculty” and includes a photograph of a young man holding his diploma with 

one hand, his cell phone with the other, and wearing a cap adorned with a sticker or 

sign of some kind.

The key issue before us is the sufficiency of these allegations, because as the 

majority correctly explains, “[i]f the District did not enforce the policy to exclude a 

student’s secular message, then, in the absence of appropriate justification, the District cannot enforce its policy to burden Plaintiff’s religious conduct.” Majority at 9

(emphasis removed). See Fulton v. City of Philadelphia, Pa., 141 S. Ct. 1868, 1877 

(2021) (“[A] law . . . lacks general applicability if it prohibits religious conduct while 

permitting secular conduct that undermines the government’s asserted interests in a 

similar way.”).
4

The majority holds that the two allegations identified above—that (1) “other 

students were permitted to adorn their graduation caps” and (2) one student 

“sport[ed] a ‘breast cancer awareness’ sticker on his graduation cap,” Majority at 

9—“meet[] [Waln’s] burden to show that the District’s policy was selectively enforced, and accordingly, not generally applicable,” id. at 11. Citing Starr v. Baca, 

652 F.3d 1202, 1216 (9th Cir. 2011), the majority reasons that “[i]t is at least as 

plausible that the student in question wore the cap decorated with a secular sticker 

at the graduation ceremony itself” and that the adorned cap in the photograph is 

alleged to be “simply one example among other secularly decorated caps.” Majority

at 11.

In my view, neither of the allegations relied on by the majority plausibly allows the inference that the District selectively enforced its policy.

I begin with Waln’s allegation that “on information and belief, other students 

in the Dysart School District had adorned graduation caps or wore prohibited items 

on their person during the graduation ceremonies.” Assuming pleading on information and belief survives Twombly and Iqbal, such pleading “is not an appropriate 

form of pleading if the matter is within the personal knowledge of the pleader or 

‘presumptively’ within his knowledge, unless he rebuts that presumption. Thus, matters . . . generally known in the community should not be alleged on information and

belief inasmuch as everyone is held to be conversant with them.” 5 Charles Alan 
5

Wright, Arthur R. Miller & A. Benjamin Spencer, Federal Practice and Procedure 

Civil § 1224, at 343–44 (4th ed. 2022). As the District’s high school commencement 

ceremonies were all public events, what happened at those ceremonies is presumptively within her knowledge and therefore she must plead facts rather than information and belief.

That brings us to the other allegation (and accompanying photograph) that the 

majority relies on—that another student was permitted to participate in his graduation ceremony even though his cap was adorned with what Waln characterizes as a 

breast cancer awareness sticker. Recall that the photograph displayed a young man 

after the graduation ceremony—he is shown holding his diploma with one hand and 

his phone with the other amid a group of people milling about. In response to the 

contention that the student might well have affixed the sticker to his cap after the 

ceremony, the majority responds that “[i]t is at least as plausible that the student in 

question wore the cap decorated with a secular sticker at the graduation ceremony 

itself.” Majority at 11.

But even assuming we can plausibly infer from the photograph that the student 

wore his adorned cap during the ceremony, that begs the question whether the District affirmatively permitted him to do so. If the young man defied the policy and 
6

slipped into the ceremony with his adorned cap undetected,1 it wouldn’t be the first 

time that a high school student broke the rules.

To have a cognizable claim for relief under the Free Exercise Clause based on 

selective enforcement,

2 Waln needs to plausibly allege that the District denied her 

permission to adorn her cap while permitting the young man in question to adorn his 

cap with his secular sticker. There is, however, an “obvious alternative explanation,”

Twombly, 550 U.S. at 567—the student with the adorned cap depicted in the photograph in Waln’s complaint simply evaded the District’s policy—even if we accept 

the inference that he wore the adorned cap during the ceremony. And “[w]hen faced 

with two possible explanations, only one of which can be true and only one of which 

results in liability, plaintiffs cannot offer allegations that are ‘merely consistent with’ 

their favored explanation but are also consistent with the alternative explanation.” 

In re Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1108 (9th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). “Something more is needed, such as facts tending to 

exclude the possibility that the alternative explanation is true, in order to render 

1 Or perhaps, in violation of the rules, he affixed the sticker to his cap after entering 

the event but—surrounded by hundreds of other students—only moments before 

marching into the stadium. There are innumerable ways this young man might have 

evaded the District’s policy.

2 Like the majority, I do not consider Waln’s other theories challenging the neutrality 

and general applicability of the District’s policy.
7

plaintiffs’ allegations plausible within the meaning of Iqbal and Twombly.” Id. (citation omitted).

Nothing in Waln’s complaint tends to exclude the possibility that the student 

with the adorned cap—even if he wore the cap at the ceremony—simply broke the 

rules. Without more, her explanation “stops short of the line between possibility and 

plausibility.” Twombly, 550 U.S. at 557. If anything, Waln’s allegation that the District Superintendent was reluctant to “open the door” to any kinds of adornment tends 

to lean in favor of the alternative explanation that the student in the photograph violated the policy rather than received an exemption. For example, an attachment to 

Waln’s complaint states that the District similarly denied a request “that seminary 

students be allowed to wear a special adornment on their gown during the graduation 

ceremony.”

II

As pled, Waln’s Free Speech claim based on selective enforcement suffers the 

same fatal defect as her Free Exercise claim. The majority characterizes the District’s 

policy as “viewpoint neutral on its face” but not “applied uniformly.” Majority at 17 

(quoting Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 803 (9th Cir. 2011)). 

To show this, however, the complaint would need to plausibly allege that the District

permitted other students to adorn their graduation caps. And for the same reasons 
8

discussed above, the allegations of the complaint tend to exclude Waln’s theory that

the District granted such permission.

III

In my view, the district court correctly determined that Waln’s complaint does 

not adequately allege plausible claims for relief under the Free Exercise or Free 

Speech Clauses based on selective enforcement. The district court erred, however, 

in declining to grant her leave to amend to correct these deficiencies because she had 

not “shown in [her] briefing how [she] could amend [her] claims to remedy the 

Amended Complaint’s legal deficiencies.” “[I]n a line of cases stretching back 

nearly 50 years, we have held that in dismissing for failure to state a claim under 

Rule 12(b)(6), ‘a district court should grant leave to amend even if no request to 

amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.’ ” Lopez v. Smith, 203 F.3d 1122, 

1127 (9th Cir. 2000) (emphasis added) (quoting Doe v. United States, 58 F.3d 494, 

497 (9th Cir. 1995)). By definition, a factual deficiency under Twombly and Iqbal is 

at least potentially curable.

The district court therefore should have given Waln a chance to remedy her 

deficient complaint with additional “factual content to nudge [her] claim of [selective enforcement of the policy] across the line from conceivable to plausible.” Iqbal, 

556 U.S. at 683 (cleaned up). I therefore concur in the judgment reversing the district 
9

court as to Waln’s § 1983 free exercise and free speech claims and remanding for 

further proceedings.