Littlefield v. Forney Independent School District

REVISED OCTOBER 17, 2001
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 00-10965
____________________

SISSY LITTLEFIELD; ET AL
Plaintiffs

SISSY LITTLEFIELD; DAVID LITTLEFIELD; JOEL ODOM; SUSAN
BECMER; NICHOLAS BECMER; ET AL

Plaintiffs - Appellants

v.

FORNEY INDEPENDENT SCHOOL DISTRICT; KEITH BELL; KENNETH
CLEAVER; CLARENCE DOGGAN; JAY CALVIN; JIM JACOBS; RICK
TOWNSEND; DAVID WALKER; CHESTER J ST CLAIR

Defendants - Appellees

_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
September 26, 2001
Before KING, Chief Judge, BARKSDALE, Circuit Judge, and NOWLIN,
District Judge.*

KING, Chief Judge:

Plaintiffs-Appellants, individual students and parents of

students in the Forney Independent School District, appeal the

district court’s grant of summary judgment in favor of

*
Chief Judge of the Western District of Texas, sitting by
designation.
Defendants-Appellees Forney Independent School District, Keith

Bell, Kenneth Cleaver, Clarence Doggan, Jay Calvin, Jim Jacobs,

Rick Townsend, David Walker, and Chester J. St. Clair. For the

following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs-Appellants1 are students and parents of students

who attend schools situated in the Forney Independent School

District (“Forney”) in Forney, Texas. Plaintiffs-Appellants sued

Defendants-Appellees asserting several constitutional challenges

to the mandatory school uniform policy (“Uniform Policy” or

“Policy”) adopted by Forney. Defendants-Appellees are Forney;

Chester St. Clair, General Superintendent of Forney; and Keith

Bell, Kenneth Cleaver, Clarence Doggan, Jay Calvin, Jim Jacobs,

Rick Townsend, and David Walker, Members of the Forney Board of

Trustees (collectively referred to hereinafter as “Defendants”).

1
Plaintiffs-Appellants are Sissy Littlefield, David
Littlefield, Joel Odom, Susan Becmer, Nicholas Becmer, Jonathan
Becmer, Stan Bland, Glenda Bland, Jennifer Bland, Jeffery Bland,
Steve Calvery, Greta Calvery, Ashley Calvery, Scott Ryan Calvery,
Lenny McKinney, Opal McKinney, Beverly McKinney, Rebecca
McKinney, Virginia McLaren, Natalie Johnson, Tom Napper, Brandi
Napper, Kevin Napper, Chelsea Napper, Mary Penn, Haley Penn,
Lynzi Anderson, Drew Anderson, William Tapley, Norma Tapley,
Kaytie Elizabeth Tapley, Cindy Woods, Dustin Woods, Benjamin
Woods, Chad Woods, Aaron Woods, Tammy Winner, Mark Winner, Ryan
Winner, Daniel Ingram, Cliff Clipp, Kim Clipp, Michael Lamberth,
Cash Clipp, Joe Don Law, Brad Law, David Lowery, Vinita Lowery,
and Madeline Lowery.

2
 In the spring of 1999, Forney, acting pursuant to Texas

Education Code § 11.1622 adopted a district-wide mandatory

Uniform Policy applicable to its students. The Uniform Policy

apparently originated as a result of the efforts of General

Superintendent St. Clair, who observed the successful

implementation of uniform policies employed in other Texas school

districts. In addition to St. Clair, school board members and

school officials conferred with their counterparts at other Texas

public schools and reviewed studies on the efficacy of school

uniform policies. As found by the district court,

St. Clair came to the conclusion that the implementation of
a school uniform program would, according to his research,
have the following beneficial effects on the students and
the system as a whole: improve student performance, instill

2
Section 11.162 of the Texas Education Code provides in
relevant part:

(a) The board of trustees of an independent school district
may adopt rules that require students at a school in the
district to wear school uniforms if the board determines
that the requirement would improve the learning environment
at the school.
(b) The rules the board of trustees adopts must designate a
source of funding that shall be used in providing uniforms
for students at the school who are educationally
disadvantaged.
(c) A parent or guardian of a student assigned to attend a
school at which students are required to wear school
uniforms may choose for the student to be exempted from the
requirement or to transfer to a school at which students are
not required to wear uniforms and at which space is
available if the parent or guardian provides a written
statement that, as determined by the board of trustees,
states a bona fide religious or philosophical objection to
the requirement.

See TEX. EDUC. CODE ANN. § 11.162 (Vernon 1996).

3
 self-confidence, foster self-esteem, increase attendance,
decrease disciplinary referrals, and lower drop-out rates.

See Littlefield v. Forney Indep. Sch. Dist., 108 F. Supp. 2d 681,

686 (N.D. Tex. 2000). Forney also sought input from parents

regarding the proposed Policy. In March 1999, a “take-home”

survey was sent home with elementary, middle, and junior-high

school students in order to elicit parental approval of the

proposed Uniform Policy. The district court found that, of the

thirty-four percent of parents who responded, approximately sixty

percent of that group was in favor of mandatory uniforms. Forney

also conducted two “town hall” style meetings on the subject. At

these meetings, parents were provided the opportunity to comment

on the proposed Uniform Policy.

As a result of this information, the Forney School Board

made factual findings that the school uniforms would improve the

learning environment at the schools, and on April 19, 1999,

adopted the Uniform Policy now at issue. The Uniform Policy

applied to all 2,500 students in each of the schools within the

district and was implemented at the beginning of the 1999-2000

school year.

The disputed Uniform Policy requires students to wear solid

color polo-type shirts with collars, oxford-type shirts, or

blouses with collars in one of four colors (white, yellow, red,

4
or navy blue).3 The shirts may be either short- or long-sleeved

but must be tucked in at all times. Students must also wear

either blue or khaki colored pants, shorts, skirts, or jumpers.

The shorts and skirts must be of appropriate size and length (no

shorter than three inches above the knee). The Policy prohibits

the wearing of, inter alia, denim, leather, suede, or vinyl, or

any clothing that suggests gang affiliation, could conceal

contraband, or could create a distraction. Certain other

clothing items are also banned, such as open-heeled sandals,

flip-flops, military boots, overalls, athletic pants, spandex,

baggy clothing, and sleeveless shirts. The Uniform Policy also

regulates the sizes of manufacturer logos permitted on clothing.

Prior to the adoption of the Policy, Forney had a dress code that

prohibited certain types of clothing deemed unsafe, immodest, or

otherwise inimical to the educational process.

Forney asserts that the Uniform Policy was adopted to

promote school spirit and school values, and “to promote decorum

(and thereby the notion that school is a place of order and

work), to promote respect for authority, to decrease

socioeconomic tensions, to increase attendance, and to reduce

drop out rates.” Forney also asserts that it intended the Policy

3
There are slight differences between the mandatory
uniform policies covering the primary and intermediate schools
and the policy covering the secondary schools. These
differences, however, are not relevant to the disposition of this
appeal.

5
“to increase student safety by reducing gang and drug related

activity as well as the likelihood of students bringing weapons

to school undetected and by allowing teachers to more readily

distinguish Forney students from outsiders.”

Failure to comply with the Uniform Policy results in

disciplinary action, which could lead to expulsion. As stated in

the Forney District-Wide Student Handbook, “if a non-exempt

student attends school in violation of this uniform policy, the

following disciplinary steps will be taken in order: [1] the

student will be placed immediately in isolation on the campus,

either until the parent can bring appropriate clothing or for the

entire day, whichever comes first; [2] the student will be sent

to BAM [Behavioral Adjustment Modification] for a minimum of 3

days for the second infraction; [3] if the student still refuses

to comply, the student will remain in BAM for a maximum of two

weeks; [4] if the student still refuses to comply following the

two week BAM assignment, the principal will pursue due process

for AEP [Alternative Education Program] or expulsion.”

In compliance with the requirement of Texas Education Code

§ 11.162(c), the Uniform Policy includes an “opt-out” provision

whereby parents and students with “bona fide” religious or

philosophical objections to the wearing of a uniform can apply

for an exemption to the Policy. The opt-out provision requires

parents to request an Application for Exemption and fill out a

questionnaire designed to gauge the sincerity of the beliefs of

6
those parents who assert objections. This questionnaire asks

whether the student has ever participated in any of a number of

activities that would have required him or her to wear a

uniform.4 Families granted exemptions from the Uniform Policy

must reapply each school year. A three-step grievance system was

created to address issues arising from the opt-out procedure.5

The district court found that the parents of seventy-two

students sought exemptions from compliance with the Uniform

Policy, of which twelve exemptions were granted.6 A few of the

Plaintiffs-Appellants were within the group of students who were

granted exemptions from the Policy. Most students who had based

their objections on philosophical or religious grounds were

4
For example, the questionnaire asks if a student has
ever worn a uniform to participate in activities such as girl
scouts, boy scouts, non-school organized sports teams, school-
sponsored sports teams, band, choir, drill team or whether a
student has ever worn a uniform to work at a business, at church,
or at a church-related activity. In addition, the questionnaire
asks whether the parents have ever participated in activities
that might require a uniform.
5
Parents requesting an exemption from the Policy for
their children are required to meet with a designated
administrator to discuss the Policy and the nature of the
objection. These “Level I” hearings are conducted by the campus
principal or an assistant principal. Level I hearings may be
appealed to a “Level II” hearing at the district level. Level II
hearings are to be conducted by Defendant St. Clair or a deputy
administrator designated by him. A final “Level III” hearing is
available before the School Board Trustees.
6
Several of these opt-out exemptions were granted for
medical reasons.

7
denied exemptions because they had worn some type of uniform in

the past.

Several Plaintiffs-Appellants unsuccessfully sought

exemption from the Uniform Policy through established

administrative channels. Other Plaintiffs-Appellants refused to

respond to the questionnaire based on constitutional or personal

objections. Plaintiffs-Appellants then brought suit under 42

U.S.C. § 1983 seeking declaratory and injunctive relief and

damages.

Relevant to this appeal, Plaintiffs-Appellants bring three

separate, substantive constitutional challenges to the Uniform

Policy. First, the student-Plaintiffs-Appellants subject to the

Uniform Policy assert that the compulsory wearing of uniforms

violates the First Amendment because the wearing of uniforms is

both a form of coerced speech, in that, it compels them to

express ideas with which they may not agree, and, at the same

time, it is an infringement on free expression, in that it

prevents them from freely expressing particular messages they do

wish to convey. Second, the parent-Plaintiffs-Appellants claim

that the compulsory Uniform Policy violates their “fundamental”

right to control the upbringing and education of their children

in violation of the Fourteenth Amendment. Finally, four family-

Plaintiffs-Appellants (parents seeking relief on behalf of their

children), who sought exemption from the Uniform Policy on

religious grounds, allege that the existing opt-out procedures

8
restrict their freedom to exercise their religious beliefs in

violation of the Free Exercise Clause of the First Amendment

because the opt-out questionnaire and hearing procedures

impermissibly delve into the substance of their religious

beliefs. Further, these four family-Plaintiffs-Appellants

contend that the opt-out procedures favor certain established

religions at the expense of other religions and thus violate the

Establishment Clause of the First Amendment.

Defendants filed a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6) and moved for summary judgment based on

qualified immunity. The district court treated the motion to

dismiss as a motion for summary judgment and granted summary

judgment in favor of Defendants, concluding that no

constitutional violation occurred in this case. The district

court did not reach the qualified immunity issue.

Plaintiffs timely appeal the grant of summary judgment.

II. STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo,

viewing the evidence in the light most favorable to the

nonmovant. See Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir.

1998); see also Tolson v. Avondale Indus., Inc., 141 F.3d 604,

608 (5th Cir. 1998). “Summary judgment is proper ‘if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

9
the moving party is entitled to judgment as a matter of law.’”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting FED.

R. CIV. P. 56(c)). The moving party bears the burden of showing

the district court that there is an absence of evidence to

support the nonmoving party’s case. See id. at 325. “If the

moving party fails to meet this initial burden, the motion must

be denied, regardless of the nonmovant’s response. If the movant

does, however, meet this burden, the nonmovant must go beyond the

pleadings and designate specific facts showing that there is a

genuine issue for trial.” Tubacex, Inc. v. M/V Risan, 45 F.3d

951, 954 (5th Cir. 1995). “A dispute over a material fact is

genuine ‘if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.’” Smith, 158 F.3d at

911 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). The substantive law determines which facts are

material. See Anderson, 477 U.S. at 248.

III. FIRST AMENDMENT EXPRESSIVE CONDUCT CLAIMS

The First Amendment protects not only verbal and written

expression, but also symbols and conduct that constitute

“symbolic speech.” See Tinker v. Des Moines Indep. Cmty. Sch.

Dist., 393 U.S. 503, 505-06 (1969). As the Supreme Court

explained in Texas v. Johnson:

While we have rejected the view that an apparently limitless
variety of conduct can be labeled speech whenever the person
engaging in the conduct intends thereby to express an idea,
we have acknowledged that conduct may be sufficiently imbued

10
 with elements of communication to fall within the scope of
the First and Fourteenth Amendments.

491 U.S. 397, 404 (1989) (citations and internal quotations

omitted). In evaluating whether particular conduct possesses

“sufficient communicative elements” to implicate First Amendment

protections, courts must ask whether “[a]n intent to convey a

particularized message was present, and . . . [whether] the

likelihood was great that the message would be understood by

those who viewed it.” Id. (alterations in original) (quoting

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

The protection of the First Amendment depends not only on

whether the conduct is expressive, but also on the context in

which that expression takes place. In the public school arena,

the free expression rights of students are balanced by the

corresponding interest of furthering the educational mission of

schools. Compare Tinker, 393 U.S. at 506 (recognizing that

students do not “shed their constitutional rights to freedom of

speech or expression at the schoolhouse gate”), with Hazelwood

Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (“A school need

not tolerate student speech that is inconsistent with its basic

educational mission, even though the government could not censor

similar speech outside the school.” (citations and internal

quotations omitted)), and Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675, 682 (1986) (recognizing that the First Amendment

rights of public school students “are not automatically

11
coextensive with the rights of adults in other settings”).

Public schools, therefore, while responsible for inculcating the

values of the First Amendment necessary for citizenship, are not

themselves unbounded forums for practicing those freedoms.

The student-Plaintiffs-Appellants (referred to in this

section as the “Students”) raise two separate free expression

arguments based on the First Amendment.7 The Students claim that

the Uniform Policy acts as a form of “coerced speech” in that it

forces the Students to convey a state-approved message that

7
The district court found that the Plaintiffs-Appellants
had established the requisite Article III injury to challenge the
Uniform Policy. The district court stated:

[T]he Forney I.S.D. Student Uniform Policy specifically
provides that if a student persists in his refusal to comply
with the uniform policy, his ultimate sanction is the
alternative education program or expulsion. Thus, it is
apparent that the penalty of expulsion from school may be
imposed on those students who, for whatever reason, refuse
to wear the prescribed uniform. Moreover, Plaintiffs seek
remedies, including damages, for injuries which have already
occurred. Accordingly, the Court concludes that Plaintiffs
have established a particularized, imminent or actual
injury, for purposes of Article III.

See Littlefield, 108 F. Supp. 2d at 688. We agree. Students and
parents may challenge unconstitutional actions in the public
schools that directly affect the students. See e.g., Sch. Dist.
of Abington Township v. Schempp, 374 U.S. 203, 224 (1963) (“The
parties here are school children and their parents, who are
directly affected by the laws and practices against which their
complaints are directed. These interests surely suffice to give
the parties standing to complain.”). Of course, as will be
discussed infra in the text, each subset of the Plaintiffs-
Appellants (“Students,” “Parents,” and the four families with
religious objections) has standing only to challenge the
particular legal claim for which that subset can demonstrate
injury, causation, and redressability.

12
students do not wish to send,8 see Wooley v. Maynard, 430 U.S.

705, 714 (1977); West Va. Bd. of Educ. v. Barnette, 319 U.S. 624,

633 (1943), and that the Uniform Policy acts as a “prior

restraint” by preventing the Students from freely expressing any

message at all through their attire (other than the state-

approved message).9 See United States v. O’Brien, 391 U.S. 367,

376 (1968).

Defendants argue that the choice of student clothing is not

expressive conduct protected by the First Amendment, and thus,

any rational regulation10 of such nonexpressive conduct should

8
Regarding the “coerced speech” argument, the Students
argue that mandatory uniforms convey a particularized message
that the school district wishes to express, namely that students
have respect for the authority of teachers and administrators,
have Forney school and civic pride, and support the school
policies. The Students argue that this message is also
understood by school officials, students, and the public, which
is the exact reason why the Uniform Policy was adopted (or else
it would have no rational purpose). The Students also adduced
evidence from student depositions that these students did not
wish to convey the message intended by Forney. Thus, the
Students conclude that mandatory uniforms coerce students to
convey a particular message, which Forney wishes them to express,
but which they oppose.
9
As to the “prior restraint” argument, the Students argue
that because the Uniform Policy precludes the use of clothing to
express any message — no matter how specific or particularized —
and that school children do wear clothing that sends political,
cultural, and social messages, this restriction is a content-
based prior restraint on speech.
10
Defendants contend that this court should review the
Uniform Policy under rational-basis scrutiny. Under this
standard, courts look for a rational relationship between the
regulation and a conceivable governmental interest. See FM Prop.
Operating Co. v. City of Austin, 93 F.3d 167, 174-75 (5th Cir.
1996).

13
survive constitutional scrutiny. Defendants also contend that

the wearing of school uniforms does not convey a sufficiently

particularized message to be considered coerced speech, see

Spence v. Washington, 418 U.S. 405, 409 (1974), and thus cannot

be considered a prior restraint on expression prohibited by the

First Amendment.11 See Karr v. Schmidt, 460 F.2d 609, 613-14

(5th Cir. 1972) (en banc).12

The threshold question, then, is whether the expression at

issue is entitled to protection under the First Amendment. The

district court agreed with Defendants and held that the mandatory

Uniform Policy did not implicate “expressive conduct” protected

by the First Amendment. See Littlefield, 108 F. Supp. 2d at 694

(relying on Spence, 418 U.S. at 409, and Karr, 460 F.2d at 613-

14, to find student clothing not to be protected expression under

the First Amendment). However, subsequent to the district

court’s issuance of its opinion, this court, in Canady v. Bossier

11
Defendants argue that the First Amendment only protects
particularized expression and that the only particularized
message that the Students wish to convey by wearing non-uniform
clothes is “individuality,” but that individuality, almost by
definition, is not sufficiently particularized to be protected by
the First Amendment. Further, Defendants argue that there is no
evidence that other people at school would be likely to
understand the students’ message of “individuality.”
12
In Karr, this court rejected a constitutional challenge
to a portion of a public school dress code that regulated the
length of hair for boys. See 460 F.2d at 613-14. The court
determined that the decision to wear long hair is not expressive
activity protected by the First Amendment. See id. at 614 (“[W]e
think it inappropriate that the protection of the First Amendment
be extended to the wearing of long hair.”).

14
Parish School Board, explicitly addressed the First Amendment

implications of a mandatory school uniform policy and cast doubt

on the district court’s reasoning. See 240 F.3d 437, 440 (5th

Cir. 2001) (disagreeing with the district court in Littlefield

that the rationale in Karr could be applied to students’ choice

of attire).

In Canady, this court resolved a First Amendment challenge

to a mandatory school uniform policy adopted by the Bossier

Parish School Board in Bossier Parish, Louisiana. The Bossier

uniform policy involved a similar requirement of one of several

colors of collared shirts and a similar choice between blue or

khaki pants. In addressing the threshold question of expression,

this court assumed without deciding that “an individual’s choice

of attire . . . may be endowed with sufficient levels of

intentional expression to elicit First Amendment shelter.” Id.

Faced with an almost identical First Amendment challenge to a

uniform policy, this court reasoned:

A person’s choice of clothing is infused with intentional
expression on many levels. In some instances, clothing
functions as pure speech. A student may choose to wear
shirts or jackets with written messages supporting political
candidates or important social issues. Words printed on
clothing qualify as pure speech and are protected under the
First Amendment. . . . Clothing may also symbolize ethnic
heritage, religious beliefs, and political and social views.
Individuals regularly use their clothing to express ideas
and opinions. . . . The choice to wear clothing as a symbol
of an opinion or cause is undoubtedly protected under the
First Amendment if the message is likely to be understood by
those intended to view it. . . . Finally, students in
particular often choose their attire with the intent to
signify the social group to which they belong, their

15
 participation in different activities, and their general
attitudes toward society and the school environment. While
the message students intend to communicate about their
identity and interests may be of little value to some
adults, it has a considerable [e]ffect, whether positive or
negative, on a young person’s social development.

Id. at 440-41 (citations omitted). The Canady court then went on

to state that while “this sort of expression may not convey a

particularized message to warrant First Amendment protection in

every instance, we cannot declare that expression of one’s

identity and affiliation to unique social groups through choice

of clothing will never amount to protected speech.” Id. at

441.13 Assuming the First Amendment applies to the students’

choice of expression, the court then applied the First Amendment

framework of United States v. O’Brien, 391 U.S. 367, 377 (1968),

relating to content-neutral restrictions on expressive

activities, to hold that the Bossier Parish mandatory school

uniform policy did not violate the First Amendment.

13
The court further qualified its conclusion:

We do not conclude that every choice of clothing expresses a
particularized message, and we make no judgment as to the
extent or type of clothing necessary to communicate a
discrete message in order to afford First Amendment
protection. Our analysis simply acknowledges that certain
choices of clothing may have sufficient communicative
content to qualify as First Amendment activity.

Canady, 240 F.3d at 441 n.3.

16
 For the purposes of this opinion, we follow the reasoning of

the Canady court14 and again, assume without deciding, that the

First Amendment applies to the expressive conduct implicated in

the mandatory Uniform Policy. However, applying the O’Brien

test, we hold that the Uniform Policy does not violate the First

Amendment.

In O’Brien, the Supreme Court created an analytical

framework to evaluate content-neutral restrictions on expressive

activities. The Court held that “when ‘speech’ and ‘nonspeech’

elements are combined in the same course of conduct, a

sufficiently important governmental interest in regulating the

nonspeech element can justify incidental limitations on First

Amendment freedoms.” 391 U.S. at 376. Applying O’Brien to the

challenged governmental policy at issue, the Uniform Policy will

14
At issue in Canady was only a “prior restraint”-type
argument. However, the assumption that student clothing, and
thus the Uniform Policy, implicates expressive conduct also
applies to the “coerced speech” challenge. In fact, as discussed
infra in the text, the requirement that all students wear a
certain type of uniform in order to further a certain
particularized message of the school district is arguably a
stronger justification to find potential expressive conduct and,
thus, to apply Canady and O’Brien. The Students have set forth
affidavits from Forney officials that the Uniform Policy was
intended to express a particular institutional image. In
deposition testimony, Forney school officials stated that the
purpose of the uniform was, inter alia, to convey respect for
“the values of the Forney schools” and the “City of Forney.”
Thus, because Forney implemented the Uniform Policy with the
intention of conveying that message, we find it permissible to
assume that the expression involved was intentional and
particularized and, thus, follow the logic of Canady in
evaluating the coerced speech claim. As in Canady, however, we
need not and do not decide the issue.

17
survive constitutional scrutiny if (1) it is within the

constitutional power of the government, (2) it furthers an

important or substantial governmental interest, (3) the interest

is unrelated to the suppression of student expression, and (4)

the incidental restrictions on First Amendment activities are no

more than is necessary to facilitate that interest. See id. at

377. The O’Brien standard is applicable to both the Students’

“coerced speech” arguments, see Wooley v. Maynard, 430 U.S. 705,

716 (1977), and their “prior restraint”/”free expression”

arguments. See Canady, 430 F.3d at 443.

We have little difficulty in concluding that the Uniform

Policy passes constitutional scrutiny under the O’Brien standard.

First, there is no question that, pursuant to state law,

Defendants have the power to pass a mandatory school uniform

policy. See TEX. EDUC. CODE ANN. § 11.162 (Vernon 1996).15

Second, improving the educational process is undoubtably an

important and substantial interest of Forney and the school

board. See Canady, 240 F.3d at 443; see also Kuhlmeier, 484 U.S.

at 271-72. The Uniform Policy was adopted to improve student

performance, instill self-confidence, foster self-esteem,

increase attendance, decrease disciplinary referrals, and lower

drop-out rates. See Littlefield, 108 F. Supp. 2d at 686. Such

interests in the health, safety, and order of public schools are

15
Plaintiffs-Appellants concede that § 11.162 of the Texas
Education Code is constitutional.

18
sufficient government interests under O’Brien. While the

Students argue that Defendants have failed to produce evidence of

any need to further these improvements in Forney, we are

satisfied that, on this record, Defendants have established the

requisite connection between the Uniform Policy and the stated

interests in improving Forney schools.16 As has been well

recognized, federal courts should defer to school boards to

decide, within constitutional bounds, what constitutes

appropriate behavior and dress in public schools. See Canady,

240 F.3d at 441, 444 (“[I]t is not the job of federal courts to

determine the most effective way to educate our nation’s

youth.”); see also Fraser, 478 U.S. at 683.

Third, the Students have not established issues of material

fact sufficient to demonstrate that the Defendants’ interest in

enacting the Uniform Policy was to suppress expression. See

O’Brien, 391 U.S. at 377. The record demonstrates that the

Uniform Policy was adopted for other legitimate reasons unrelated

to the suppression of student expression. For example, Forney

asserts that the Policy was implemented to increase safety by

providing a means to differentiate Forney students from

16
The Forney School Board Policy included findings by the
Board that the requirement of wearing school uniforms would
improve the learning environment in the district. In addition,
school officials evaluated uniform policies in other school
districts. This evaluation was made in an attempt to find
solutions to improve student performance and further the
interests discussed in the text.

19
nonstudents who might enter Forney campuses. In addition, the

Uniform Policy was intended to decrease socioeconomic disparities

and tensions between students, increase attendance (because

truants would be easily identified), and reduce gang and drug-

related activity, as well as the likelihood of students bringing

weapons to school undetected.17 Following Canady, we hold that

Forney’s purpose in enacting the Uniform Policy cannot be deemed

an attempt to suppress or coerce speech. Cf. Canady, 240 F.3d at

443 (“The School Board’s purpose for enacting the uniform policy

is to increase test scores and reduce disciplinary problems

throughout the school system. This purpose is in no way related

to the suppression of student speech.”).

Finally, we are satisfied that, because of the limited

nature of the restriction, “the incidental restrictions on First

Amendment activities are no more than is necessary to facilitate

[Forney’s] interest.” O’Brien, 391 U.S. at 377. The

restrictions pertain only to student attire during school hours

and do not affect other means of communication. Again, following

Canady,

Although students are restricted from wearing clothing of
their choice at school, students remain free to wear what
they want after school hours. Students may still express

17
In fact, Forney has submitted evidence that three out of
the four campuses had an increase in attendance and a decline in
non-dress code disciplinary referrals. Further, in three
instances, four nonstudents on campus were intercepted and asked
to leave the school grounds, in part, because they were
identifiable as non-Forney students.

20
 their views through other mediums during the school day.
The uniform requirement does not bar the important “personal
intercommunication among students” necessary to an effective
educational process.

Id. at 443 (quoting Tinker, 393 U.S. at 512). Thus, we hold that

the Uniform Policy survives First Amendment scrutiny under the

O’Brien test and, because there are no genuine issues of material

fact regarding the application of the O’Brien test, we affirm the

judgment of the district court.

IV. PARENTAL RIGHTS UNDER THE FOURTEENTH AMENDMENT

The Fourteenth Amendment prohibits States from depriving

persons “of life, liberty, or property, without due process of

law.” See U.S. CONST. amend. XIV, § 1. As the Supreme Court

recently reaffirmed: “We have long recognized that the

Amendment’s Due Process Clause, like its Fifth Amendment

counterpart, ‘guarantees more than fair process.’ The Clause

also includes a substantive component that ‘provides heightened

protection against government interference with certain

fundamental rights and liberty interests.’” Troxel v. Granville,

530 U.S. 57, 65 (2000) (plurality opinion) (quoting Washington v.

Glucksberg, 521 U.S. 702, 719, 720 (1997)).

One of “the fundamental liberty interests” recognized by the

Court is the “interest of parents in the care, custody, and

control of their children.” See id., at 65-66 (“[I]t cannot now

be doubted that the Due Process Clause of the Fourteenth

Amendment protects the fundamental right of parents to make

21
decisions concerning the care, custody, and control of their

children.”); see also Meyer v. Nebraska, 262 U.S. 390, 401 (1923)

(recognizing that the liberty interest protected by due process

includes the right of parents “to control the education of their

own”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925)

(recognizing that “the liberty of parents and guardians” includes

the right “to direct the upbringing and education of children

under their control”); Prince v. Massachusetts, 321 U.S. 158, 166

(1944) (recognizing that there is a constitutional interest in

parents directing the “custody, care and nurture of the child”).

The parent-Plaintiffs-Appellants (referred to in this

section as the “Parents”) argue that their right to control their

children’s education is a fundamental right entitled to

heightened constitutional protection. Specifically, the Parents

claim that the mandatory school uniforms interfere with their

parental rights to teach their children to be guided by one’s own

conscience in making decisions, to understand the importance of

appropriate grooming and attire, to understand the importance of

one’s own individuality, and to respect the individuality of

others. The Parents argue that the implementation of mandatory

uniforms presumes that parents are either incapable or unwilling

to act in the best interests of their children. Because the

Parents assert that this right of “control” has been recognized

as “fundamental,” see Troxel, 530 U.S. at 65, the Parents contend

22
that a “strict-scrutiny”18 level of analysis must be applied to

the Uniform Policy.

Defendants argue, in contrast, that while parents may have a

fundamental liberty interest in their children’s upbringing, this

interest cannot usurp the state’s role in determining appropriate

behavior at public schools, including the role of determining

appropriate dress codes in the district. Defendants argue that

notwithstanding the Supreme Court’s recent reaffirmation of

parental rights as fundamental rights in Troxel, that decision

does not in any way extend parents’ rights to frustrate basic

school rules reasonably required to regulate the educational

system. Defendants argue, therefore, that a rational-

relationship/rational-basis19 test is the appropriate standard to

judge the school Uniform Policy at issue.

The district court agreed with Defendants and applied a

rational-basis test, concluding that Forney’s Uniform Policy did

not infringe the Parents’ fundamental right to control the

18
The Due Process Clause provides “heightened protection
against government interference with certain fundamental rights
and liberty interests.” Washington v. Glucksberg, 521 U.S. 702,
720 (1997). Government actions that burden the exercise of those
fundamental rights or liberty interests are subject to strict
scrutiny and will be upheld only when they are narrowly tailored
to a compelling governmental interest. See Reno v. Flores, 507
U.S. 292, 302 (1993) (reaffirming that due process “forbids the
government to infringe certain ‘fundamental’ liberty interests at
all, . . . unless the infringement is narrowly tailored to serve
a compelling state interest”).
19
See supra note 10.

23
rearing and education of their children. See Littlefield, 108 F.

Supp. 2d at 703. The district court rejected the Parents’

argument that the Supreme Court’s determination in Troxel — that

the Due Process Clause protects the fundamental right of parents

to make decisions concerning the care, custody, and control of

their children — could be read to cover complaints about a school

Uniform Policy. See id. at 702 (“The fundamental right of

filiation and companionship with one’s children, which the

Supreme Court examined in Troxel, is an entirely different

balance of interests from the right of parents to send their

children to a public school in clothes of their own choosing.”).

We agree with the impressively reasoned decision of the district

court on this issue.

In Troxel, the Court struck down a Washington State statute

that allowed “any person,” including a grandparent, to petition

for visitation rights at any time, if it was in the best

interests of the child. See 530 U.S. at 63. The Court found the

statute offensive to the parental rights of the mother in that it

unconstitutionally interfered with the mother’s right to make

decisions concerning the upbringing of her child. See id. at 69-

70. While the Supreme Court in Troxel recognized that there

exists a fundamental right of parents to direct their children’s

upbringing, it failed to articulate a standard of judicial

24
scrutiny to be applied.20 See id. at 80 (Thomas, J., concurring)

(“The opinions of the plurality, Justice Kennedy, and Justice

Souter recognize such a right, but curiously none of them

articulates the appropriate standard of review.”)).

The dispositive question at issue is whether the sweeping

statements of the plurality opinion in Troxel regarding the

“fundamental” “interest of parents in the care, custody, and

control of their children,” see id. at 65, mandate a strict

standard of scrutiny for the Parents’ Fourteenth Amendment

challenge to the Uniform Policy. We do not read Troxel to create

a fundamental right for parents to control the clothing their

children wear to public schools and, thus, instead follow almost

eighty years of precedent analyzing parental rights in the

context of public education under a rational-basis standard.

Before the Supreme Court’s Troxel opinion, the Court had

addressed the issue of parental rights in public schools in three

major opinions. First, in Meyer v. Nebraska, the Court held

unconstitutional a law that forbade schools from teaching foreign

20
The Court also failed to reach agreement on the
parameters of the right at issue. See Troxel, 530 U.S. at 78
(Souter, J., concurring) (“Our cases . . . have not set out exact
metes and bounds to the protected interest of a parent in the
relationship with his child.”); see id. at 95 (Kennedy, J.,
dissenting) (“The principle [that the Fourteenth Amendment
protects parental rights] exists, then, in broad formulation; yet
courts must use considerable restraint, including careful
adherence to the incremental instruction given by the precise
facts of particular cases, as they seek to give further and more
precise definition to the right.”).

25
languages to students below the eighth grade, applying the

equivalent of a rational-basis review.21 See 262 U.S. 390, 396-

97, 403 (1923) (“We are constrained to conclude that the statute

as applied is arbitrary, and without reasonable relation to any

end within the competency of the state.” (emphasis added)). The

Supreme Court held that the Fourteenth Amendment protects the

right “to marry, establish a home, and bring up children.” Id.

at 399.

Two years later, in Pierce v. Society of Sisters, the Court

struck down a state law prohibiting parents from sending their

children to private school, again utilizing the equivalent of a

rational-basis test. See 268 U.S. 510, 530-31 (1925). The Court

invalidated the statute because it “unreasonably interfer[ed]

with the liberty of parents and guardians to direct the

upbringing and education of children under their control.” Id.

at 534-35 (emphasis added).

Finally, in Wisconsin v. Yoder, members of the Old Order

Amish religion and the Conservative Amish Mennonite Church argued

that mandatory school attendance beyond the eighth grade violated

their rights under the Fourteenth Amendment and under the First

Amendment’s Free Exercise Clause. See 406 U.S. 205, 207 (1972).

The Supreme Court agreed that, as it applied to the Amish, the

21
We use the term “equivalent” because both Meyer and
Pierce were decided before the Supreme Court adopted its tiered-
scrutiny method of analysis.

26
state law was unconstitutional. See id. at 234. Yoder was

decided based on the Free Exercise Clause, but it informs the

discussion about the balancing of interests regarding parental

rights implicated under the Fourteenth Amendment. The Court

acknowledged both the state interest in providing and regulating

a state public education system and the parental interest in

controlling a child’s religious upbringing and education. See

id. at 213-14. As the district court in this case reasoned:

Understanding the full import of Yoder, which refined the
parental rights announced in Meyer and Pierce, is critical
to properly analyze the claims presented in the present
case. In Yoder, the Supreme Court, while reaffirming the
general notion that parental rights are a protected liberty
interest under the due process clause, recognized the “high
responsibility” and regulatory power of the state in matters
of public education. Furthermore, while fundamental
religious practices may excuse parents from complying with
educational policies, secular objections to such policies
are insufficient to avoid compliance.

Littlefield, 108 F. Supp. 2d at 699 (emphasis added). The Yoder

Court went on to state that “[a] way of life, however virtuous

and admirable, may not be interposed as a barrier to reasonable

state regulation of education if it is based on purely secular

considerations.” Yoder, 406 U.S. at 215 (emphasis added).22

22
In striking down the statute as applied to the Amish,
the Supreme Court applied a stricter standard than rational basis
review because the parental interests were combined with free
exercise interests. See Yoder, 406 U.S. at 233 (“[W]hen the
interests of parenthood are combined with a free exercise claim
of the nature revealed by this record, more than merely a
reasonable relation to some purpose within the competency of the
State is required to sustain the validity of the State’s
requirement under the First Amendment.” (citations and internal
quotations omitted)).

27
 Thus, as the district court recognized: “[w]hile the Court

employed more than a rational basis standard with reference to

the First Amendment free exercise clause, it is clear that the

due process interest of parents to direct the upbringing and

education of their children, standing alone, warranted no more

than rational-basis review.” Littlefield, 108 F. Supp. 2d at

699. As such, the district court concluded that Meyer, Pierce,

and Yoder, taken together, support the argument that a rational-

basis review is the appropriate standard in this case. This

conclusion is in accord with other circuit courts of appeals that

have addressed the issue, pre-Troxel. See Herndon v. Chapel Hill

— Carrboro City Bd. of Educ., 89 F.3d 174, 177-79 (4th Cir.

1996); Immediato v. Rye Neck Sch. Dist., 73 F.3d 454, 461 (2d

Cir. 1996).

Troxel does not change the above reasoning in the context of

parental rights concerning public education. While Parents may

have a fundamental right in the upbringing and education of their

children, this right does not cover the Parents’ objection to a

public school Uniform Policy. It has long been recognized that

parental rights are not absolute in the public school context and

can be subject to reasonable regulation. See, e.g., Runyon v.

McCrary, 427 U.S. 160, 177 (1976) (recognizing no parental right

to educate children in private segregated academies); Kite v.

Marshall, 661 F.2d 1027, 1029 (5th Cir. 1981); see also Swanson

v. Guthrie Indep. Sch. Dist., 135 F.3d 694, 698 (10th Cir. 1998)

28
(recognizing that cases in this area establish that “parents

simply do not have a constitutional right to control each and

every aspect of their children’s education and oust the state’s

authority over that subject”); Brown v. Hot, Sexy & Safer Prods.,

Inc., 68 F.3d 525, 533 (1st Cir. 1995); Fleischfresser v. Dir. of

Sch. Dist. 200, 15 F.3d 680, 690 (7th Cir. 1994); Murphy v.

Arkansas, 852 F.2d 1039, 1044 (8th Cir. 1988); Fellowship Baptist

Church v. Benton, 815 F.2d 485, 491 (8th Cir. 1987). These cases

support the determinations in Meyer, Pierce, and Yoder that a

rational-basis test is the appropriate level of scrutiny for

parental rights in the public school context.

Applying the rational-basis test, we conclude that the

Uniform Policy is rationally related to the state’s interest in

fostering the education of its children and furthering the

legitimate goals of improving student safety, decreasing

socioeconomic tensions, increasing attendance, and reducing drop-

out rates. Therefore, we affirm the district court’s summary

judgment determination that the Uniform Policy does not violate

the Parents’ Fourteenth Amendment rights.

V. FREE EXERCISE CLAUSE AND ESTABLISHMENT CLAUSE CLAIMS

We find no merit in the family-Plaintiffs-Appellants’

(referred to in this section as the “Families”) claims under the

Free Exercise and the Establishment Clauses of the First

29
Amendment.23 On appeal, the Families do not challenge the

constitutionality of Texas Education Code § 11.162(c),24 focusing

instead on the application of the “opt-out” procedures by the

Defendants (hereinafter referred to as the “opt-out policy”).

The district court properly dismissed these First Amendment

challenges in its well-reasoned opinion. See Littlefield, 108 F.

Supp. 2d at 703-08. We agree with the district court that the

Forney opt-out policy neither infringes on the families’ free

exercise of religion nor violates the Establishment Clause.

A. Free Exercise Claim25

23
Only four families (parents and children) have Article
III standing to bring the Free Exercise and Establishment Clause
claims, see supra note 7, because only these four families sought
exemption from the Uniform Policy on religious grounds. These
families are: Virginia McLaren and her daughter Natalie Johnson
(the “McLaren/Johnson” family), Mary Penn and her children Lynzi
and Drew Anderson (the “Penn/Anderson” family), William and Norma
Tapley and their daughter Kaytie Tapley (the “Tapleys”), and
David and Vinita Lowery and their daughter Madeline Lowery (the
“Lowerys”) (collectively the “Families”). As the standing
analysis for the Free Exercise Claim and the Establishment Clause
Claim differ, we address the standing inquiry for each claim at
the outset of each analytical section. See infra notes 25 & 31.
24
See supra note 2.
25
To have Article III standing to pursue an alleged
violation of the Free Exercise Clause, a plaintiff must allege
that his or her own “particular religious freedoms are
infringed.” Sch. Dist. of Abington v. Schempp, 374 U.S. 204, 224
n.9 (1963); Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 71
(2d Cir. 2001); see also Fleischfresser, 15 F.3d at 684
(recognizing standing because “[o]ne aspect of the religious
freedom of parents is the right to control the religious
upbringing and training of their minor children”). Each family
has alleged that the opt-out policy, by requiring them to
explain, defend, and conform their religious practices in an
effort not to have their children disciplined or expelled from

30
 The Free Exercise Clause of the First Amendment, which has

been made applicable to the states by incorporation into the

Fourteenth Amendment26 provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting the free

exercise thereof.” U.S. CONST. amend. I. In Employment Division,

Department of Human Resources v. Smith, the Supreme Court held

that a neutral, generally applicable governmental regulation will

withstand a free exercise challenge when the regulation is

reasonably related to a legitimate state interest. See 494 U.S.

872, 879 (1990); Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 531 (1993) (“In addressing the

constitutional protection for free exercise of religion, our

cases establish the general proposition that a law that is

neutral and of general applicability need not be justified by a

compelling governmental interest even if the law has the

incidental effect of burdening a particular religious

practice.”).

school, thereby infringes on their right to freely exercise their
religious beliefs. Due to the opt-out policy, the
McLaren/Johnson family removed Natalie from the Forney school
district, rather than be subject to what they allege was a
violation of their First Amendment rights. The Penn/Anderson
family and the Tapleys refused to participate in the opt-out
questionnaire, claiming that the procedures themselves were
violative of their religious freedom. The Lowerys were granted a
religious exemption, but because the policy requires them to re-
apply every year, they claim that the policy threatens a future
injury.
26
See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

31
 On its face, the opt-out policy enacted by Forney is neutral

and of general application, in that it applies to all persons who

might wish to attend Forney and choose to opt-out of the Uniform

Policy. All parties also agree that the opt-out policy was not

enacted to inhibit religion and, in fact, recognize that the

statutory provision was enacted to protect the reasonable state

interest of fostering the free exercise of religion. As a

threshold matter, then, the opt-out policy survives

constitutional scrutiny under Smith.

The Families’ specific complaint, however, is that in the

process of legitimately inquiring about the religious beliefs of

families seeking exemption from the Uniform Policy, Defendants

have “crossed the line between the legitimate inquiry into the

sincerity of Plaintiffs’ religious beliefs and prohibited inquiry

into the substance of those beliefs.” The Families argue that,

because there was no established school policy for determining

who would be granted an exception, Defendants have become

arbiters of the substance of religions in a manner that infringes

the Families’ free exercise of their beliefs.27

27
The Families have abandoned allegations of a “hybrid-
rights” challenge to the opt-out policy. The “hybrid-rights”
argument is based on the Supreme Court’s language in Smith, which
recognized that a heightened standard of review may be required
when a Free Exercise Clause claim is combined with another
constitutional protection such as free expression or parental
rights. See Smith, 494 U.S. at 881 (“The only decisions in which
we have held that the First Amendment bars application of a
neutral, generally applicable law to religiously motivated action
have involved not the Free Exercise Clause alone, but the Free

32
 The difficulty for the Families is twofold. First, the

Families concede that it is permissible for Forney to examine the

“sincerity” of their beliefs. Second, on this record there

exists an established district policy that Defendants have

followed in a consistent manner. We address these issues

together.

Section 11.162(c) of the Texas Education Code provides that

parents may exempt their children from the Uniform Policy if they

can provide a bona fide religious or philosophical objection to

the wearing of the uniform.28 In an effort to provide an

objective means of determining the sincerity of the “bona fides”

of a religious belief, Forney established a process of requiring

written objection, the completion of a questionnaire that

requests information regarding whether students had worn uniforms

in the past, and personal meetings with the parents.29 This

process to determine the sincerity of a religious objection,

while fraught with difficulty, is necessary to separate sincere

Exercise Clause in conjunction with other constitutional
protections.”). The district court rejected the argument. We do
not address it.
28
See supra note 2.
29
Contrary to the Families’ claims, the Forney opt-out
policy was not solely dependant on parents’ responses to the
questionnaire. For example, the Lowerys initially refused to
fill out the questionnaire. On appeal to the Board of Trustees,
however, the Lowerys were granted an exemption based on their
stated belief that their Native American ancestry combined with
their Catholic beliefs deriving from their interpretation of the
“Vatican II” proscribed the wearing of uniforms.

33
beliefs from fraudulent beliefs. See Patrick v. LeFevre, 745

F.2d 153, 157 (2d Cir. 1984) (“Sincerity analysis seeks to

determine an adherent’s good faith in the expression of his

religious belief. This test provides a rational means of

differentiating between those beliefs that are held as a matter

of conscience and those that are animated by motives of deception

and fraud.” (citations omitted)); see also Hernandez v.

Commissioner, 490 U.S. 680, 696-97 (1989); United States v. Daly,

756 F.2d 1076, 1081 (5th Cir. 1985) (“Although courts may not

determine whether a given belief is or is not a religion, the

trier of fact may determine whether a belief is truly held

without violating the First Amendment.” (citations omitted)).

Because the opt-out procedures are a neutral and rational

means to determine sincerity, as a legal matter under Smith, they

do not interfere with the free exercise of religion. See 494

U.S. at 877. Further, in practice, “opt-outs” have been granted

to parents who have demonstrated a sincere and consistent

objection to the wearing of uniforms.30 Therefore, we conclude

30
For example, Mr. and Mrs. J.M. stated in response to an
opt-out request for Judy M., a Forney student, that Mr. M.’s
“negative personal experience” with uniforms in Catholic school
created a sincere belief that Judy M. should not wear a uniform.
Further, they answered “no” to all relevant questions regarding
their child’s previous wearing of uniforms. The exemption was
granted for Judy M. In similar fashion, Mr. O., father of a
Forney student Patrick O., indicated that he had pulled his
children out of Catholic school, partly because of his objections
to uniforms. Mr. O. also responded to the questionnaire with
“no” to each item. Again, the exemption was granted. In
addition, the Lowerys were granted an exemption based on their

34
that the Families have not created a genuine issue of material

fact that the application of Forney’s opt-out policy violates

their free exercise rights under the First Amendment.

B. Establishment Clause Claim31

The Families’ Establishment Clause argument is equally

without merit. The Families assert that Defendants will grant

exemption requests only upon proof that the applicant strictly

adhered to an organized religion, thus manifesting a preference

for only those religions in which adherents could provide written

religious beliefs that combine their Native American ancestry and
their Catholic beliefs based on an interpretation of Vatican II.
31
“[T]he concept of injury for standing purposes is
particularly elusive in Establishment Clause cases.” Murray v.
City of Austin, 947 F.2d 147, 151 (5th Cir. 1991). As the Court
of Appeals for the Fourth Circuit recognized:

[T]he standing inquiry in Establishment Clause cases has
been tailored to reflect the kind of injuries Establishment
Clause plaintiffs are likely to suffer. . . . [T]he
spiritual, value-laden beliefs of the plaintiffs are often
most directly affected by an alleged establishment of
religion. Accordingly, rules of standing recognize that
noneconomic or intangible injury may suffice to make an
Establishment Clause claim justiciable.

Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir. 1997)
(citations omitted); see also Altman, 245 F.3d at 72 (“[S]tanding
to assert an Establishment Clause claim may rest . . . on the
plaintiff’s direct exposure to the challenged activity.”);
Murray, 947 F.2d at 151-52. In the instant case, the Families
have alleged that the application of the opt-out policy appears
to favor certain organized religions to which the Families do not
belong. This direct exposure to the policy satisfies the
“intangible injury” requirement to bring an Establishment Clause
challenge.

35
proof of the tenets of their beliefs.32 The Families argue that,

in granting exemptions only to religions for which a prohibition

on uniforms was clearly stated in the tenets of that religion,

Defendants were establishing some religions as favored over

others, in violation of the Establishment Clause.

To withstand an Establishment Clause challenge, a statute

must have a secular legislative purpose, the statute’s primary

purpose must neither advance nor inhibit religion, and the

statute must not foster an excessive entanglement with religion.

See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). As the

district court found:

[T]he uniform policy unquestionably has a secular purpose.
Next, the principal effect neither advances nor inhibits
religion. Its purpose is to enhance the learning
environment in the Forney schools, irrespective of the
religious faith of a particular student. Finally, the
policy does not unnecessarily entangle the School Board with
religion. The uniform policy references religion only in
the context of exemptions. There is no evidence to suggest
that as a result of the uniform policy, the School Board
must routinely or even occasionally become involved in
religious matters. Less than one hundred exemption
requests, out of nearly 2,500 students, were considered by
the School Board, and the vast majority concerned secular
opt-out requests.

Littlefield, 108 F. Supp. 2d at 708. We agree with the district

court’s conclusion. None of the families raising the

Establishment Clause challenge can point to any religious purpose

behind the implementation of the opt-out policy. Nor can these

32
The Families posit the Amish and followers of Islam as
examples of religious believers who could point to written tenets
to support their opt-out claims.

36
families point to any “primary effect” of the opt-out policy that

advances a particular religion or that inhibits a religion. On

this record, it appears that those families that could

demonstrate sincere and consistent rejection of mandatory

uniforms were granted exemptions regardless of the particular

tenets of their faith.33 Finally, we do not perceive an

intolerable risk of excessive government entanglement in the

requirement that parents demonstrate their consistency and

sincerity by explaining the basis of their religious objections

to Defendants. We therefore affirm the district court’s grant of

summary judgment on these claims.

VI. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court in favor of Defendants.

33
See supra note 30.

37
RHESA HAWKINS BARKSDALE, Circuit Judge, specially concurring:

I concur in the result and in all but part III. (“First

Amendment Expressive Conduct Claims”) of the majority opinion.

I.

Concerning part III., our court utilizes assumptions regarding

the claims of coerced-speech and restraint on free expression,

rather than directly addressing those claims. By doing so, we

simply invite, if not encourage, needless, repetitive litigation.

II.

The wearing of the uniform at issue is not “expression” for

First Amendment purposes. Accordingly, there is no coerced speech.

Likewise, for the restraint-on-free-expression claim, and on this

record, the requisite expression has not been demonstrated.

A.

I regret we have not confronted the issue our court avoided in

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

whether the wearing of a school uniform devoid of any logo, symbol,

or motto is “expression” for First Amendment purposes. The answer

to that question would resolve directly the coerced-speech claim at

issue. Obviously, if that which is coerced is not speech, then

speech has not been coerced.

1.

The majority correctly acknowledges, as did our court in

Canady, that the two-part test from Spence v. Washington, 418 U.S.

405, 410-11 (1974), is the correct analysis for discerning whether
conduct — such as the wearing of a school uniform — is sufficiently

expressive to merit First Amendment protection. Canady explains

the application of that test:

“In deciding whether particular conduct
possesses sufficient communicative elements to
bring the First Amendment into play, we [must]
ask[] whether ‘[a]n intent to convey a
particularized message was present, and
[whether] the likelihood was great that the
message would be understood by those who
viewed it.’” When assessing the appellants’
claim, we look to the particular activity,
combined with the factual context and
environment in which it was undertaken.

240 F.3d at 440 (quoting Texas v. Johnson, 491 U.S. 397, 404

(1989))(alteration in original)(citations omitted). Unfortunately,

the majority, as did the Canady court, fails to adequately apply

Spence to determine whether a school uniform specifically, as

opposed to clothing generally, can constitute expression. Instead,

as was done in Canady, the majority assumes for purposes of this

appeal that the wearing of the uniform at issue constitutes

expressive conduct.

Appellants (collectively, Students) assert that, for cases of

coerced speech, the two-part Spence test was abrogated by Hurley v.

Irish-Am. Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557

(1995) (holding Massachusetts public accommodation law

unconstitutional as applied to require private organizers of St.

Patrick’s Day parade to include gay, lesbian, and bisexual group as

its own parade unit). They rely on the Court’s statement that “a

39
narrow, succinctly articulable message is not a condition of

constitutional protection, which if confined to expressions

conveying a ‘particularized message,’ would never reach the

unquestionably shielded painting of Jackson Pollock, music of

Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll”. Id. at

569 (citation omitted).

Of course, where speech is pure, a particularized message has

never been required; pure speech is entitled to “comprehensive

protection under the First Amendment”. Tinker v. Des Moines Indep.

Com. Sch. Dist., 393 U.S. 503, 505-06 (1969). The Spence test, on

the other hand, was established to address speech that is less than

pure: namely, “expression of an idea through activity”. Spence,

418 U.S. at 411.

That wearing a school uniform is not pure speech is supported

by Tinker, which involved students being suspended for wearing

black armbands to school to protest the conflict in Vietnam. In

distinguishing the armband-suspension from other clothing-related

regulations, the Court explained: “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.... Our

problem involves direct, primary First Amendment rights akin to

‘pure speech’”. Tinker, 393 U.S. at 507-08. Accordingly, for

determining what — if any — expressive content there is in wearing

40
the school uniform at issue, we must follow Canady’s instruction

and engage in the two-part Spence analysis.

While the Students have proffered some evidence that the

Forney Independent School District (FISD) intended to convey a

message in adopting the uniform policy — namely, pride in and

respect for the values of FISD and its schools — I question whether

such a message is sufficiently particularized as to satisfy Spence.

But, even if FISD did intend that message, I doubt there is any

likelihood whatsoever, no less the “great likelihood” required by

Spence, that such a message would be understood by anyone who

happens to see students’ blue or khaki trousers (or skirt) and

solid-colored shirt. When worn in the factual context and

environment in which students are required to wear the uniform —

that is, school — the uniform conveys at most the following

message: that the wearer is a student.

Accordingly I would hold that, as a matter of law, the wearing

of a school uniform devoid of any logo, symbol, or motto — like the

wearing of long hair that was at issue in this court’s en banc

decision in Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972)(en banc),

cert. denied, 409 U.S. 989 (1972) — does not involve “sufficient

communicative content” to qualify as expression for First Amendment

purposes. Consequently, the requirement to wear such a uniform

cannot constitute coerced speech. As the Supreme Court implied in

Hurley, where the disfavored message is “difficult to identify”,

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there is no risk that the allegedly coerced party is forced “to

propound a particular point of view”. Hurley, 515 U.S. at 574-75.

2.

Of course, deciding that the wearing of such a school uniform

is not expressive conduct alleviates the need to examine the

coercion claim under the four-part O’Brien test regarding content-

neutral restrictions on expressive conduct. See United States v.

O’Brien, 391 U.S. 367, 377 (1968). Indeed, I question whether

O’Brien applies to school uniform cases. See, e.g., Phoenix

Elementary Sch. Dist. No. 1 v. Green, 943 P.2d 836 (Ariz. Ct. App.

1997) (school uniform policy is a content-neutral regulation of the

medium, not the message; accordingly, nonpublic forum analysis is

the appropriate test); see also Canady, 240 F.3d at 443 (noting the

similarity of O’Brien to traditional time, place, manner analysis).

But that question is best left for another day. Because coercion

to wear the uniform at issue is not coercion to speak, there is no

need to apply any degree of heightened scrutiny.

B.

My conclusion that the wearing of the school uniform at issue

is not expressive does not, of course, dictate a result with regard

to the Students’ other First Amendment claim: restraint on free

expression. For even if the uniform is not imbued with expressive

value, the uniform policy still precludes the Students from wearing

clothing of their choice that may be expressive.

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 In addressing this second claim, the majority again follows

the lead of the Canady court in assuming that the uniform policy

implicates expressive clothing choices. Accordingly, the majority

proceeds with the O’Brien analysis.

Although “certain choices of clothing may have sufficient

communicative content to qualify as First Amendment activity”,

Canady, 240 F.3d at 441 n.3, the present record contains only vague

depictions of messages the Students supposedly intend to convey

through clothing choice. The deposition testimony of one Student

is typical:

I mean, I don’t like them [school uniforms].
I don’t like that we have to wear the same
thing every day. It’s a routine that I don’t
like to be in. I don’t like to be told what
to wear. I would rather wear something that
expresses who I am.

Arguably, the various “messages” proffered by Students in

their depositions may be loosely grouped around the concept of

individuality. But, I cannot agree — nor will I assume — that such

a message satisfies the two-part Spence test for discerning

expressive conduct. Because the Students have failed to articulate

a particularized message likely to be understood by anyone, I would

not examine their free expression challenge under the O’Brien test

as the majority does. Nor would I apply any degree of heightened

scrutiny. Instead, I would ask simply “whether the regulation is

reasonably intended to accomplish a constitutionally permissible

state objective”. Karr, 460 F.2d at 616. I conclude it is.

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 III.

“[T]he [Supreme] Court has repeatedly emphasized the need for

affirming the comprehensive authority of the States and of school

officials, consistent with fundamental constitutional safeguards,

to prescribe and control conduct in the schools”. Tinker, 393 U.S.

at 507 (emphasis added). In accordance with state law, and in

response to a perceived need, FISD has prescribed and controlled

the wearing of uniforms in its schools through a uniform policy

that is consistent with fundamental constitutional safeguards. We

should address this issue head-on.

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