UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31318
DIANA CANADY, BILLY JONES, PAMELA JONES, THOMAS ATTAWAY,
EARL HODGKINS, ELIZABETH FISHER, CAROL AYERS, DIANE JONES,
TONY NEESE, DELLA MCCRORY, VERONICA WALSH, MICHAEL WALSH,
PATRICIA VIDAL, DAVID TURNER, LORI WRIGHT, TIM BRODERICK,
KEN HENDERSON, JULIE CHRISTEN, DIANE ALLEN, CAROL WILHELM,
BECKY EMERSON, TONJA DAVIS, KIRA HIGGINBOTHAM, BRIAN
SHOEBRIDGE, ED WALKER, NANCY KIRKPATRICK, WILTON LERITTE,
KAREN BUTTERFIELD, JANICE HARVILLE, MARIAN TYSON, JONI
HASSLE, MARY VANCE, KEN FOSTER, BRUCE DOMINQUE, TERRY MONROE,
THERESA HARMON, CINDY MCCARL, DARLY MCCARL, VICKI ALLEN,
BONNIE MONROE, ALL PLAINTIFFS,
Plaintiffs-Appellants,
VERSUS
BOSSIER PARISH SCHOOL BOARD,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
January 23, 2001
Before DUHÉ and PARKER, Circuit Judges and FOLSOM*, District Judge.
ROBERT M. PARKER, Circuit Judge:
*
District Judge of the Eastern District of Texas, sitting by
designation.
1
This Court is called on once again to assess the steps taken
by school officials to improve the quality of education in our
nation’s public schools. While maintenance of order and promotion
of acceptable standards of classroom conduct are synonymous with
ensuring an adequate education system, school officials are not
given free reign to abridge students’ constitutional rights. See
Tinker v. Des Moines Indep. School Dist., 393 U.S. 503, 511-14
(1969). In this case we review the district court’s order granting
summary judgment in favor of the Bossier Parish School Board. The
district court concluded that the school board’s rule implementing
a mandatory school uniform policy did not violate the First
Amendment rights of its students.
I.
In 1997, the Louisiana Legislature amended section 17:416 of
the Louisiana Revised Civil Statutes to allow parish school boards
the discretion to implement mandatory uniforms, provided the school
board gives the students’ parents written notice explaining the
dress requirements. See LA. REV. CIV. STAT. § 17:416.7 (1997). In
the 1998-1999 school year, the Bossier Parish School Board required
sixteen of its schools to adopt mandatory uniforms in order to
determine the effect of the uniforms on the learning environment.
After receiving favorable results, the School Board implemented
mandatory school uniforms in all of the parish public schools
beginning with the 1999-2000 school year. The average uniform
2
consisted of a choice of two colors of polo or oxford shirts and
navy or khaki pants. The schools alerted parents by letter about
the dress specifications, provided a list of local vendors
supplying the required clothing, and displayed an example of the
uniform at each school.
Several parents of students in the Bossier Parish School
System filed this suit in federal court seeking an injunction
against the schools’ enforcement of the uniform policy. The
parents claimed that the dress code violated their children’s First
Amendment rights to free speech, failed to account for religious
preferences, and denied their children’s liberty interest to wear
clothing of their choice in violation of the Fourteenth Amendment.
Both the parents and the School Board filed for summary
judgment. The parents presented affidavits arguing that their
children’s constitutional rights were violated and that the School
Board’s reasons for implementing the uniform policy were unfounded.
The School Board offered affidavits of school teachers and
principals who concluded that the uniform policy reduced behavior
problems and increased test scores. The school officials recounted
statistics showing the reduction in disciplinary actions and rise
in test scores after the School Board adopted uniforms. Based on
these affidavits, the district court entered summary judgment in
favor of the School Board. The court concluded that the mandatory
uniform policy did not violate the student’s First Amendment rights
and that the summary judgment evidence did not raise a genuine
3
issue of material fact concerning the effectiveness of the uniform
policy.
The parents’ argument on appeal is two-fold. The parents
first argue that the trial court erred by concluding that the
enforcement of the school uniform policy did not violate their
children’s constitutional rights. The parents also claim that the
trial court abused its discretion by denying them additional time
to conduct discovery.
II. First Amendment
We review a district court’s order granting a motion for
summary judgment de novo. Kennedy v. Tangipahoa Parish Library
Board of Control, 224 F.3d 359, 356 (5th Cir. 2000). A district
court properly grants summary judgment if “the pleadings,
depositions, answers to interrogatories, and admissions of file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
“Although we consider the evidence and all reasonable inferences to
be drawn therefrom in the light most favorable to the nonmovant,
the nonmoving party may not rest on the mere allegations or denials
of its pleadings, but must respond by setting forth specific facts
indicating a genuine issue for trial.” Kennedy, 224 F.3d at 365
(quoting Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th
Cir. 1999). The substantive law dictates which facts are material.
4
See Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 189 (5th Cir.
1991).
A.
Before determining whether the School Board properly imposed
the mandatory uniform policy, we must ascertain whether a person’s
choice of attire qualifies as speech protected by the First
Amendment. “The question of the protected status of speech is one
of law, and as such, we review the issue de novo.” Cabrol v. Town
of Youngsville, 106 F.3d 101, 109 (5th Cir. 1997).
The district court, relying on Karr v.Schmidt, 460 F.2d 609
(5th Cir. 1972), concluded that choice of clothing is a matter of
personal taste or style and is not afforded First Amendment
protection. See also Littlefield v. Forney Indep. School Dis., 108
F. Supp. 2d 681 (N.D. Tex. 2000) (concluding that a student’s
choice of clothing was not protected by the First Amendment). In
Karr, this Court held that a male student’s choice of hair length
did not convey sufficient communicative content to warrant First
Amendment coverage. See Karr, 460 F.2d at 613-14. The Court
reasoned that “[f]or some, no doubt, the wearing of long hair is
intended to convey a discrete message to the world. But for many,
the wearing of long hair is simply a matter of personal taste or
the result of peer group influence.” Id. The district court
concluded that clothing and hair length were essentially the same
for purposes of constitutional protection. We disagree. While a
5
person’s choice of clothing may be predicated solely on
considerations of style and comfort, an individual’s choice of
attire also may be endowed with sufficient levels of intentional
expression to elicit First Amendment shelter.
The Supreme Court recognizes that conduct coupled with
communicative content raises First Amendment concerns. See Buckley
v. Valeo, 424 U.S. 1, 16-17 (1976); Spence v. Washington, 418 U.S.
405, 409 (1974); United States v. O’Brien, 391 U.S. 367 (1968); Cox
v. Louisiana, 379 U.S. 559, 563-64 (1965). However, the First
Amendment does not safeguard a limitless variety of behavior. See
City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989); O’Brien, 391
U.S. at 376. “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.’” Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence,
418 U.S. at 410-11.).1 When assessing the appellants’ claim, we
1
In Karr, this Court supported its conclusion that hair length
was not protected by the First Amendment by assessing the following
language in Tinker:
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.”
393 U.S. at 507-08. Judge Morgan surmised that the Supreme Court’s
statement suggested that hair style never warrants First Amendment
protection. If this interpretation is correct, then every choice
6
look to the particular activity, combined with the factual context
and environment in which it was undertaken. See Spence, 418 U.S.
at 409-10; Cabrol, 106 F.3d at 109.
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. See Cohen v.
California, 403 U.S. 15, 18 (1971); Board of Airport Comm’r of the
City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 575
(1987).
Clothing may also symbolize ethnic heritage, religious
beliefs, and political and social views.2 Individuals regularly
use their clothing to express ideas and opinions. Just as the
students in Tinker chose to wear armbands in protest of the Vietnam
War, students may wear color patterns or styles with the intent to
of clothing, regardless of the intent of the wearer to communicate
a particularized message, would not qualify as protected speech.
We reject this analysis of the Supreme Court’s statement in Tinker
in favor of the contemporary test for assessing expressive conduct
outlined in Spence and Johnson.
2
The Supreme Court suggested that clothing may have symbolic
meaning in religious contexts. See Board of Airport Comm’r of the
City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 575
(1987) (stating that the airport regulation prohibited “talking and
reading, or the wearing of campaign buttons and symbolic
clothing”).
7
express a particular message. See Tinker, 393 U.S. at 508-14. 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. See Johnson,
491 U.S. at 404; Spence, 418 U.S. at 410-11.
Finally, students in particular often choose their attire with
the intent to signify the social group to which they belong, their
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
affect, whether positive or negative, on a young person’s social
development. Although 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.4
We therefore disagree with the district court’s blanket
assertion that, like the length of a male student’s hair, clothing
does not contain sufficient communicative content. In the instant
4
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.
8
case, we make no determination as to whether the appellants’
summary judgment evidence demonstrates student activity covered by
the First Amendment. For purposes of this opinion, however, we
assume that the First Amendment applies to the students’ choice of
clothing. See Clark, 468 U.S. at 293 (assuming that sleeping in
public parks was First Amendment activity in order to address the
validity of the statute in dispute).
B.
While certain forms of expressive conduct and speech are
sheltered under the First Amendment, constitutional protection is
not absolute, especially in the public school setting. Educators
have an essential role in regulating school affairs and
establishing appropriate standards of conduct. See Bethel School
Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986). “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.” Hazelwood School Dis. v.
Kuhlmeier, 484 U.S. 260, 266 (1988) (quoting Fraser, 478 U.S. at
685). School boards, not federal courts, have the authority to
decide what constitutes appropriate behavior and dress in public
schools. See id. at 267.
The level of scrutiny applied to regulations of student
expression depends on the substance of the message, the purpose of
9
the regulation, and the manner in which the message is conveyed.5
The Supreme Court has established three categories of student
speech regulations.
The first category involves school regulations directed at
specific student viewpoints. In Tinker v. Des Moines Independent
School District, school officials suspended students for wearing
black armbands in protest of the Vietnam War. The Court held that
suppression of the students’ political expression could not be
validated when the students’ behavior did not contribute to a
disturbance in the educational environment. See Tinker, 393 U.S.
at 508. The Court concluded that when officials attempt to
restrict students from expressing particular political views, they
must demonstrate that the expression would “substantially interfere
with the work of the school or impinge upon the rights of other
students.” Id. at 509 (quoting Burnside v. Byars, 363 F.2d 744,
749 (5th Cir. 1966)).
The second category of regulated student expression involves
lewd, vulgar, obscene, or plainly offensive speech. See Chandler
5
See Hazelwood School Dis. v. Kuhlmeier, 484 U.S. 260 (1988);
Bethel School Dis. v. Fraser, 478 U.S. 675 (1986); Tinker v. Des
Moines Indep. School Dis., 393 U.S. 503 (1969). See also Boroff v.
Van Wert City Board of Educ., 220 F.3d 465, 467-71 (7th Cir. 2000)
(analyzing the Supreme Court’s decisions in Tinker, Fraser, and
Kuhlmeier); Henerey v. City of St. Charles, 200 F.3d 1128, 1132
(8th Cir. 1999) (comparing the level of scrutiny applied in Tinker
and Hazelwood); Chandler v. McMinnville School Dis., 978 F.2d 524,
527-29 (9th Cir. 1992) (analyzing the distinctions between the
Supreme Court’s decisions in Tinker, Fraser, and Kuhlmeier).
10
v. McMinnville School Dis., 978 F.2d 524, 529 (9th Cir. 1992). In
Bethel School District v. Fraser, school officials suspended a
student for delivering a nomination speech at a school assembly
because the speech contained sexually explicit metaphors that the
school deemed inappropriate for the members of the audience. See
Fraser, 478 U.S. at 677-79. The Supreme Court, diverging from the
Tinker analysis, held that it was appropriate for educators to
protect students from sexually explicit, indecent, or lewd speech.
The Court was careful to note that “[u]nlike the sanctions imposed
on the students wearing armbands in Tinker, the penalties imposed
in [Fraser] were unrelated to any political viewpoint.” Id. at 685.
The final category of regulated student speech is student
expression that is related to school-sponsored activities. In
Hazelwood School District v. Kuhlmeier, students working on a
highschool newspaper sought injunctive relief against the school
district and school officials. The students argued that their
First Amendment rights were violated when the school authorities
deleted certain newspaper articles relating to pregnancy and the
affects of divorce on the lives of adolescents. See Kuhlmeier, 484
U.S. at 267. The Supreme Court concluded that the Tinker analysis
does not apply when “the First Amendment requires a school
affirmatively to promote particular student speech.” Id. at 270-
71. After determining that schools were not traditional public
forums for First Amendment activity, the Court held that school
11
officials could regulate school-sponsored activities such as
publications, theatrical productions, and any other conduct related
to the school’s curriculum if “their actions are reasonably related
to legitimate pedagogical concerns.” Id. at 273.
C.
The facts of this case do not readily conform to either of the
three categories addressed by the Supreme Court. The School
Board’s mandatory uniform policy is viewpoint-neutral on its face
and as applied. School officials have not punished students for
wearing clothing with lewd, obscene, or patently offensive words or
pictures. Finally, a student’s choice to wear certain apparel to
school is neither an activity that the school sponsors nor is it
related to the school curriculum. Thus, the appellants’ argument
does not easily correspond to either Tinker, Fraser, or Kuhlmeier.
While Tinker addressed disciplinary action by school officials
directed at the political content of student expression, several
circuits have relegated cases that do not comport with the Court’s
reasoning in Fraser and Kuhlmeier to this viewpoint-specific
category. See Henerey v. City of St. Charles, 200 F.3d 1128, 1132
(8th Cir. 1999) (suggesting that the higher standard in Tinker
applies to cases outside the context of school-sponsored
activities); Chandler v. McMinnville School Dis., 978 F.2d 524, 529
(9th Cir. 1992) (concluding that any case that does not involve
vulgar, lewd, obscene or plainly offensive speech, and is free of
12
the “imprimatur of the school,” falls under the Tinker analysis).
But cf. Muller v. Jefferson Lighthouse School, 98 F.3d 1530, 1540
(7th Cir. 1996) (applying the Kuhlmeier standard to viewpoint-
oriented restrictions on religious propaganda because the First
Amendment activity involved elementary school students). Applying
the Tinker analysis to all other restrictions on student speech
does not account for regulations that are completely viewpoint-
neutral. The Supreme Court clearly thought it necessary to apply
a higher standard of scrutiny to “personal expression that happens
to occur on the school premises,” as opposed to First Amendment
activity sponsored by the school. Kuhlmeier, 484 U.S. at 271. The
Court also held that a lower standard should apply when school
restrictions of student expression are “unrelated to any political
viewpoint.” Fraser, 478 U.S. at 685. Because (1) choice of
clothing is personal expression that happens to occur on the school
premises and (2) the School Board’s uniform policy is unrelated to
any viewpoint, a level of scrutiny should apply in this case that
is higher than the standard in Kuhlmeier, but less stringent than
the school official’s burden in Tinker. Both the traditional time,
place and manner analysis and the O’Brien test for expressive
conduct satisfy this requirement. The time, place and manner
analysis and the O’Brien test are virtually the same standards of
scrutiny for purposes of assessing the validity of the school
uniform policy. See Clark v. Community for Creative Nonviolence,
13
468 U.S. 288, 298 (1984) (comparing the time, place and manner
analysis to the test outlined in United States v. O’Brien, 391 U.S.
367 (1968)). Thus, the School Board’s uniform policy will pass
constitutional scrutiny if it furthers an important or substantial
government interest; if the interest is unrelated to the
suppression of student expression; and if the incidental
restrictions on First Amendment activities are no more than is
necessary to facilitate that interest. See O’Brien, 391 U.S. at
377.
Improving the educational process is undoubtedly an important
interest of the Bossier Parish School Board. See Kuhlmeier, 484
U.S. at 271-72. 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. Although students
are restricted from wearing clothing of their choice at school,
student’s remain free to wear what they want after school hours.
Students may still express 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. Tinker, 393 U.S. at 512.
Appellants argue that the uniform requirement does not
adequately further the School Board’s interest in improving
education in the parish schools. In its summary judgment
14
affidavits, the School Board presented statistics showing that,
after one year of implementing school uniforms in several parish
schools, discipline problems drastically decreased and overall test
scores improved. The appellants offered no affidavits that raise
a fact issue concerning this concreted evidence. In their
affidavits, appellants argue that the School Board’s reasons for
implementing the uniforms were inadequate in light of the students’
First Amendment rights. As previously noted, however, it is not
the job of federal courts to determine the most effective way to
educate our nation’s youth. See Kuhlmeier, 484 U.S. at 267.
Because the appellants’ summary judgment evidence does not raise an
issue of fact as to whether the uniform policy furthers the
improvement of education in the Bossier Parish school system, we
affirm the district court’s order granting summary judgment on the
appellants’ First Amendment claim.6
III. Fourteenth Amendment
The appellants also argue that students have a “liberty”
interest in choosing to wear whatever clothing they wish. Because
the First Amendment provides an adequate source of constitutional
protection in this case, there is no reason for this Court to
6
The appellants also claim that the uniform policy does not
provide exceptions for students who wish to wear religious attire
on days when their faith calls them to do so. We agree with the
trial court’s determination that appellants lack standing to assert
this issue. Appellants have not established that the uniform
policy has interfered with their right to free exercise of
religion. See Rogers v. Brockette, 588 F.2d 1057(5th Cir. 1979).
15
address a general substantive due process claim. See Graham v.
Connor, 490 U.S. 386, 395 (1989); Conn v. Gabbert, 526 U.S. 286,
293 (1999); Boroff v. Van Wert City Board of Educ., 220 F.3d 465,
471 (7th Cir. 2000) (holding that substantive due process should
not be used as a fallback argument when the First Amendment
directly addresses the subject).
Appellants further argue that requiring parents to buy
uniforms creates too large a financial burden and effectively
denies some students the right to a free education as provided by
the Louisiana Constitution. Appellants’ brief does not adequately
outline a cognizable constitutional argument on which this Court
can grant relief, and it is therefore abandoned. See Ross v.
University of Texas at San Antonio, 139 F.3d 521, 524 n.1 (5th Cir.
1998); Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993). In any
event, the School Board has provided evidence that school uniforms
are donated by organizations to the less fortunate. Because
uniforms are available at inexpensive retail stores, it is hard to
imagine how the purchase of uniforms consisting of a certain color
of shirt and pants could be any more expensive than the normal cost
of a student’s school clothes.
IV. The Discovery Process
Finally, the Appellants contend that the district court
improperly denied them additional time to conduct discovery before
the court ruled on the School Board’s motion for summary judgment.
16
The district court delayed ruling on the appellants’ motion for
summary judgment and instead issued its memorandum and order
granting the School Board’s motion, which was filed shortly
thereafter. We review the district court’s decision to deny
further discovery for abuse of discretion. See Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit, 28
F.3d 1388, 1394 (5th Cir. 1994) (citing Harris v. Amoco Prod. Co.,
768 F.2d 669, 684 (5th Cir. 1985), cert, denied, 475 U.S. 1011
(1986)).
On September 2, 1999, the appellants moved for an extension of
time to respond to the School Board’s motion, claiming that they
needed to conduct additional discovery. They asked the court to
extend their answer date to forty days from the day of the court’s
ruling on their own motion for summary judgment. The court granted
the appellants an extension, but required them to submit their
response by September 23. The appellants filed their response in
which they requested more time to conduct discovery. The district
court issued its final order on November 10, 1999.
In order to obtain a continuance of a motion for summary
judgment for discovery purposes, a party must set forth some
statement to the court indicating why additional discovery is
necessary and “how additional discovery will create a genuine issue
of material fact.” Leatherman, 28 F.3d at 1395 (quoting Krim v.
BancTexas Group, Inc., 989 F.2d 1435, 1441 (5th Cir. 1993)). It
17
does not appear from the record that the appellants ever
established how additional discovery would create a fact issue
concerning the validity of the School Board’s summary judgment
evidence. The appellants had ample time to conduct discovery in
this case, as evidenced by their own motion for summary judgment.
In any event, the district judge granted the appellants additional
time to conduct discovery after the School Board submitted its
affidavits supporting the summary judgment motion. Based on these
facts, we conclude that the district court did not abuse its
discretion by denying the appellants any more time to conduct
discovery. Accordingly, we affirm the district court’s order
granting summary judgment in favor of the Bossier Parish School
Board.
AFFIRMED
18