In Waln v. Dysart School District, published December 9, 2022, a divided panel of the 9th Circuit Court of Appeals reversed an order dismissing at the pleading stage a 42 U.S.C. section 1983 lawsuit against a school district. The district's dress-code policy for graduation declared that students may not decorate their gown or cap. The plaintiff student, a Native American, had an eagle plume blessed in a religious ceremony. Her religious beliefs included the custom of wearing eagle feathers in times of great honor. They cannot be covered by or worn underneath a cap. The plaintiff's father and religious leader asked school administrators and the district superintendent for a religious accommodation for plaintiff. They declined. The plaintiff went to her graduation wearing her decorated cap. School officials did not let her inside the venue. But the same day, at the same venue, other high school students from the district were allegedly allowed to participate in the graduation ceremony wearing caps with secular decorations (such as a breast cancer awareness sticker) on their caps. The plaintiff sued for violation of the First Amendment's Free Exercise Clause and Free Speech Clause. The district court granted a FRCP 12(b)(6) motion dismissing the complaint.
The panel majority ruled that the district court had erred in dismissing the complaint. To state a Free Exercise claim, a plaintiff must show that a government entity has burdened her sincere religious practice pursuant to a policy that is not neutral or generally applicable. General applicability requires that the law be enforced evenhandedly. The complaint alleges that the district's policy was not enforced evenhandedly, because other students were permitted to adorn their graduation caps with secular decorations, while the plaintiff was not permitted to adorn hers with a religious decoration. It permitted secular conduct that contravened the legitimate government interests underlying the policy to the same degree that Plaintiff’s attire would have done. The plaintiff therefore carried her burden, at the motion-to-dismiss stage, to show that the district's policy was enforced in a selective manner. There is a First Amendment violation unless the district can satisfy strict scrutiny. Similarly, the plaintiff stated a claim for violation of her free speech rights. By wearing the feather at graduation, the plaintiff sought to convey a particular message of academic achievement and resilience. Viewpoint-based restrictions on student speech are subject to strict scrutiny. While the district's policy is on its face viewpoint neutral, it is still unconstitutional if not applied uniformly. The complaint plausibly alleged that the district enforced its policy in a selective way. The plaintiff therefore carried her burden to show that the district's selective enforcement constituted impermissible viewpoint or content discrimination. This too shows a First Amendment violation unless the district can satisfy strict scrutiny. The district had to show its restrictions on the plaintiff’s protected rights serve a compelling interest and are narrowly tailored to that end. The district argued that it must comply with the Establishment Clause. But as recent Supreme Court authority established, the clause does not compel the government to purge from the public
sphere anything an objective observer could reasonably infer endorses or partakes of the religious. The district therefore did not meet its burden at the pleading stage of showing that accommodating religious dress for an individual student would have any effect on other students’ rights.
A dissenting judge concurred in the majority's legal analysis, but opined that the facts alleged in the complaint, on information and belief, that the district had permitted the other students to wear secular decorations were insufficient to plausibly state a claim.