The Ninth Circuit held that a school district that refused to allow a student to wear Native American religious symbols on her graduation cap while allowing other students to wear secular messages on their caps violated the student’s First Amendment rights. (Waln v. Dysart Sch. Dist., ___ WL ______ (December 9, 2022).)
Larissa Waln was a graduating senior at Dysart School District in Arizona, and an enrolled member of the Sisseton Wahpeton Oyate tribe. She sought to wear an eagle feather on her graduation cap as a religious tradition, but the district had a “commencement dress code” prohibiting students from decorating or adorning their graduation caps and gowns. Her father asked the district for religious accommodation, which was denied. The district claimed its policy permitted no exceptions.
Larissa arrived at her graduation ceremony wearing a cap adorned with the feather and other items of cultural and religious significance, but district staff did not allow her into the building. Later that day at another graduation ceremony in the same building, students were allowed to wear caps decorated with non-religious symbols and messages, such as a breast cancer awareness sticker. Larissa sued, alleging the district violated her First Amendment rights to free speech and the free exercise of religion.
The free exercise clause is violated when the government burdens an individual’s sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’ General applicability requires, among other things, that the policy be enforced even-handedly. The Ninth Circuit found that Larissa sufficiently alleged a violation of her free exercise rights because the district’s policy was not enforced even-handedly. “If the District did not enforce the policy to exclude a student’s secular message then, in the absence of an appropriate justification, the District cannot enforce its policy to burden Plaintiff’s religious conduct.”
The Court also found that Larissa had alleged conduct that violated her free speech rights. “Here, the District’s policy is, on its face, viewpoint neutral. It prohibits all speech from all students on all graduation caps at the ceremony.” But, “a policy that is ‘viewpoint neutral on its face may still be unconstitutional if not applied uniformly.’” The Court found the student stated a claim for viewpoint discrimination by allowing students with secular messages on their caps to participate in graduation while barring Larissa.
The Court found that the district’s justification for excluding religious adornment on graduation caps was not compelling and did not meet strict scrutiny. It rejected the district’s argument that it could not allow Larissa to religiously adorn her cap, finding that this type of student religious expression would not run afoul of the Establishment Clause.
Ultimately, the Court decided that Larissa could pursue her lawsuit past the pleading stage. It noted, however, that she might not actually prove selective enforcement if it is shown that other students were not permitted to adorn their caps but did so defiantly or were permitted to adorn their caps by accident.
Even though California Education Code section 35182.1 provides that students have the right to “wear traditional tribal regalia or recognized objects of religious or cultural significance as an adornment at school graduation ceremonies” as long as the adornments do not disrupt or interfere with the ceremony, there are still important takeaways for California school districts.
Most importantly, districts must ensure that their policies around things that could involve student expression, such as graduation ceremonies and the like, are enforced evenhandedly within and across their schools. In circumstances where a student or parent has asked for an exemption from a policy for religious reasons, districts need to evaluate what other exceptions they have granted (if any) and how the rule is generally enforced before making a decision.
In addition, this case shows how a renewed focus on religion in the federal courts affects districts across the country. Districts are well served to approach issues of religion and religious expression with caution and reach out to their attorneys with any questions.