Jacobs v. Clark County School District

Opinion by Judge MICHAEL DALY HAWKINS; Dissent by Judge THOMAS.

Public school districts across the country have increasingly turned to the adoption of mandatory dress policies, sometimes referred to as “school uniform policies,” in an effort to focus student attention and reduce conflict. These policies are not without controversy, and many students, as well as their parents, find them offensive to their understanding of core First Amendment values. In a case of first impression in this circuit, we address just such a set of challenges and largely conclude that public school mandatory dress policies survive constitutional scrutiny.

FACTUAL & PROCEDURAL HISTORY

In 2003, the Clark County School District (“the District”) promulgated Regulation 5131 (“the Regulation”),1 which created a standard dress code for all Clark County students2 and established a means by which individual schools in the District could establish more stringent mandatory school uniform policies.3 These uniform policies were to be established “for the purpose[s] of increasing student achievement, promoting safety, and enhancing a positive school environment.”4

*423A number of schools in the District instituted such uniform policies. For example, Liberty High School (“Liberty”) instituted a policy requiring all students to wear “solid khakicolored bottoms and solid-colored polo, tee, or button-down shirts (blue, red or white) with or without Liberty logos.” 5 Kimberly Jacobs (“Jacobs”), then an eleventh-grader at Liberty, repeatedly violated Liberty’s uniform policy (at least once by wearing a shirt containing a printed message reflecting her religious beliefs). As a result of these violations, Jacobs was repeatedly referred to the Dean’s office and was ultimately suspended from school five times for a total of approximately twenty-five days. Although Liberty provided Jacobs with educational services during her suspensions6 — and, in fact, Jacobs’s grade point average improved during that time period7 — Jacobs claims that she missed out on classroom interactions, suffered reputational damage among her teachers and peers, had a tarnished disciplinary record, and was unconstitutionally deprived of her First Amendment rights to free expression and free exercise of religion because of Liberty’s enforcement of its mandatory school uniform policy.8

Jacobs and her parents thus brought suit against the District and various individual defendants (collectively, “Defendants”), asking the court to: (1) declare N.R.S. § 392.458, the Regulation, and Liberty’s mandatory school uniform policy unconstitutional as violating the First Amendment’s Free Speech and Free Exercise clauses, as well as the Fourteenth Amendment’s Due Process Clause; (2) expunge all related discipline from Jacobs’s record; and (3) award her appropriate damages.9 Without expressing any view on the constitutionality of Liberty’s uniform policy or its authorizing regulation and statute, the district court granted Jacobs’s motion for a preliminary injunction and enjoined Liberty from further disciplining or suspending Jacobs for failing to adhere to the policy.10 Following this decision, the District slightly amended the Regulation, with the only significant changes being: (1) a relaxation of the amount of parental support needed to enact a school’s uniform policy;11 and (2) elimination of one por*424tion of the Regulation about which the district court expressed “strong reservations.”12 Additionally, Liberty expunged all uniform-related discipline from Jacobs’s record.

Encouraged by Jacobs’s success in obtaining a preliminary injunction — and concerned about the suit’s viability after Jacobs had withdrawn from Liberty and moved to a new school district — a number of other District students and their parents (collectively, “Plaintiffs”) joined the suit.13

Shane Dresser (“Dresser”) — a student at Jim Bridger Middle School (“Bridger”) at the time this suit was filed14 — alleged, inter alia, that his right to free exercise of religion was violated when, after being denied a religious exemption from Bridger’s uniform policy, he was forced to wear the required uniform. Dresser had applied for an exemption on the ground that his religion teaches its members to embrace their individuality and further teaches that, even though “uniformity can be accepted by an individual if they choose to do so by their own free will, ... no one can force uniformity onto a person.” Dresser’s application was denied without explanation.15

Dwight Terry, Jr. (“Terry”) — a student at Chaparral High School (“Chaparral”)— alleged that, on at least five occasions, he was sent to the principal’s office for the remainder of the school day for failing to wear the required school uniform. Neither the amended complaint nor any evidence in the record provides any additional information regarding Terry’s violations. Specifically, the record does not indicate whether Terry’s non-compliance was due to a religious objection, a desire to communicate a particular message (either via his dress itself or via a printed message contained on his clothing), a desire to cause disruption in his school, or simple forgetfulness. Chaparral is not presently enforcing a school uniform policy.

Whitney Rose and John Does I & II-students at Frank E. Garside Jr. High School (“Garside”) and Glen Taylor Elementary School (“Glen Taylor”), respectively — alleged that their due process rights were violated when their schools implemented school uniform policies without complying with the parental survey requirements included in the original Regulation.16 Of these three students, only *425John Doe I continues to attend a District school with a mandatory uniform policy.

Defendants moved to dismiss Plaintiffs’ amended complaint under Rule 12(b)(6). After advising the parties that Defendants’ motion might be construed as one for summary judgment, and after the parties supplemented the record accordingly, the district court struck two provisions of the Regulation,17 but otherwise granted summary judgment in favor of Defendants, finding no other constitutional infirmity with N.R.S. § 892.458, the Regulation, or the individual schools’ uniform policies. See generally, Jacobs, 373 F.Supp.2d at 1162. Plaintiffs appeal this judgment.

DISCUSSION

I. Justiciability

Before turning to the constitutional claims lodged against the District’s school uniform policies, we must ensure that at least one plaintiff presents a justiciable “case or controversy” with respect to each constitutional claim. U.S. Const. art. III; City of S. Lake Tahoe v. Cal. Tahoe Reg'l Planning Agency, 625 F.2d 231, 233 (9th Cir.1980). For a plaintiffs claim to be justiciable, he or she must have standing to bring the claim, and the claim must not be moot. Am. Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir.2006).

A plaintiff has standing to challenge allegedly unconstitutional conduct as long as: (1) he or she has “suffered an ‘injury in fact’ ”; (2) there is a “causal connection between the injury and the conduct complained of’; and (3) it is likely “the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted). While standing is determined based on the facts “as they exist[ed] at the time the complaint was filed,” id., a case becomes moot — and, hence, non-justiciable — if the “requisite personal interest” captured by the standing doctrine ceases to exist at any point during the litigation. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Bernhardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir.2002).

Although many of Plaintiffs’ claims for declaratory and injunctive relief appear to be moot (as only one plaintiff continues to attend a District school that is currently enforcing a mandatory school uniform policy), Plaintiffs’ amended complaint seeks not only prospective relief, but also “appropriate damages.” As this court clarified in Bernhardt, a “live claim for [even] nominal damages will prevent dismissal for mootness.” 279 F.3d at 872. We thus examine each of Plaintiffs’ constitutional claims to determine whether at least one plaintiff meets the three standing require*426mente and retains a “live claim for [at least] nominal damages.” See id.

A. Freedom of Speech

Plaintiffs allege that the District’s mandatory school uniform policies infringe upon students’ free speech rights by preventing them from engaging in both constitutionally protected “pure speech” and constitutionally protected “expressive conduct,” as well as by compelling them to “speak” in a particular manner.18

When a plaintiff alleges violation of a constitutional right, the Supreme Court has held that, even if compensatory damages are unavailable because the plaintiff has sustained no “actual injury” — such as an economic loss, damage to his reputation, or emotional distress — nominal damages are nonetheless available in order to “mak[e] the deprivation of such right[ ] actionable” and to thereby acknowledge the “importance to organized society that [the] right[] be scrupulously observed.” Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); see also Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 n. 11, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (“Our discussion [in Carey ] makes clear that nominal damages ... are the appropriate means of ‘vindicating’ [constitutional] rights whose deprivation has not caused actual, provable injury”).

Here, while it is questionable whether Jacobs has presented sufficient evidence of actual damages to be entitled to compensatory relief19 — and it is clear that Dresser has not even attempted to do so — this is not fatal to the justiciability of their claims. Jacobs has standing to bring a non-moot claim for nominal damages because she alleges an “injury in fact”— namely, deprivation of her First Amendment right to communicate a particular written message on her clothing — that was caused by Liberty’s mandatory uniform policy and would be redressed if this court were to find the policy unconstitutional. See RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1055 (9th Cir.2002) (free speech case found justiciable based solely on plaintiffs’ allegations that city regulation “prevented] them from playing the music of their choice”). Similarly, Dresser has standing to bring a non-moot claim for nominal damages because he alleges “injuries in fact” — namely, deprivation of his First Amendment rights to engage in expressive conduct via his choice of clothing and to be free from compelled speech— *427that was caused by Bridger’s mandatory uniform policy and, again, would be redressed if this court found that policy unconstitutional. See id.

Thus, although Jacobs and Dresser may be entitled to collect only nominal damages were they to succeed on their free speech claims, they nonetheless present justiciable challenges to all speech-related aspects of the District’s uniform policy. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; Bernhardt, 279 F.3d at 872; RK Ventures, 307 F.3d at 1055. The merits of these free speech claims will be discussed in Part II.

B. Free Exercise of Religion

Plaintiffs also allege that the District’s mandatory uniform policies prevented Jacobs and Dresser from freely exercising their respective religions. Again, these two plaintiffs have standing to assert non-moot claims for at least nominal damages because they allegedly sustained “injuries in fact” that were caused by their schools’ uniform policies and would be redressed if the court found those policies unconstitutional. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; Bernhardt, 279 F.3d at 872; Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir.2000) (allowing free exercise claim for only nominal damages to proceed). Specifically, Jacobs was allegedly prevented from practicing her religion (which she wanted to do by wearing clothing expressing her beliefs), while Dresser was allegedly (1) prevented from expressing his individuality via his clothing, and (2) required to engage in an act of conformity by wearing the school uniform — both of which, he claims, violate the teachings of his religion. The merits of these free exercise claims will be discussed in Part III.

C. Due Process

Finally, Plaintiffs allege that their due process rights were violated when several schools in the District — including Liberty, Bridger, Garside, and Glen Taylor — instituted school uniform policies without complying with the parental survey requirements contained in the original Regulation. Because the students at these schools were allegedly deprived of a cognizable liberty interest in free speech as a result of the school uniform policies, they too have standing to bring a non-moot claim for nominal damages. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; Bernhardt, 279 F.3d at 872; Carey, 435 U.S. at 266, 98 S.Ct. 1042 (“[T]he denial of procedural due process [is] actionable for nominal damages without proof of actual injury.”). The merits of these due process claims will be discussed in Part IV.

Because at least one plaintiff has alleged a viable claim for at least nominal damages with respect to each constitutional issue, our justiciability inquiry ends there,20 and we proceed to the merits of their claims.

II. Free Speech Claims

Plaintiffs raise three speech-related claims. First, Plaintiffs contend that the District’s school uniform policies (which prohibit students from displaying any printed messages on their clothing save for, in some cases, the school logo) unconstitutionally restrict students’ rights to engage in “pure speech” while in school. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (“[S]tudents [do not] ... shed their constitutional rights to freedom of speech or expression at the school*428house gate.”). This claim is best exemplified by Liberty’s refusal to allow Jacobs to wear t-shirts containing written messages expressing her religious beliefs in school.21 Second, Plaintiffs claim that the uniform policies unconstitutionally restrict students’ rights to engage in “expressive conduct.” See id. This claim is best exemplified by Bridger’s refusal to allow Dresser to express his individuality (and his objection to forced uniformity) by wearing clothing different from his classmates.22 Third, Plaintiffs claim that requiring students to wear a uniform amounts to unconstitutional “compelled speech.” See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); see also supra note 18. This claim is best exemplified by Dresser’s contention that he is being forced to convey a message of uniformity (with which he strongly disagrees) by wearing the same clothing as his classmates.

We agree with the district court that none of Plaintiffs’ free speech claims survive summary judgment. Ballen v. City of Redmond, 466 F.3d 736, 741 (9th Cir.2006) (reviewing grant of summary judgment in free speech case de novo). We reach this conclusion because, as explained in more detail below, the District’s encroachment upon its students’ rights to free speech and expression via its content-neutral school uniform policies need only survive intermediate scrutiny to be constitutional — a level of scrutiny we find the uniform policies easily withstand. Moreover, enforcement of the mandatory uniform policies does not amount to “compelled speech” because, under the circumstances, it is unlikely anyone viewing a uniform-clad student would understand the student to be communicating a particular message via his or her mandatory dress.

A. Pure Speech and Expressive Conduct

1. The District’s School Uniform Policies Need Only Withstand Intermediate Scrutiny to be Constitutional

The court below concluded that the District’s uniform policies did not infringe upon students’ rights to engage in pure speech or expressive conduct because the policies withstood intermediate scrutiny.23 Jacobs v. Clark County Sch. Dist., 373 F.Supp.2d 1162, 1181, 1185-87 (D.Nev.2005). Plaintiffs take issue with this analysis from the outset, arguing that applying *429intermediate scrutiny to student speech is foreclosed by Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir.1992). Specifically, they argue that, under Chandler, speech that is neither “vulgar, lewd, obscene,[or] plainly offensive” nor “school-sponsored” — like the speech Plaintiffs wish to engage in here — must be analyzed under the stricter standard the Supreme Court utilized in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 509, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969),24 and, most importantly, that Chandler leaves room for no other alternative.

Plaintiffs’ argument is superficially appealing. Chandler laid out three categories of student speech — “(1) vulgar, lewd, obscene, and plainly offensive speech, (2) school-sponsored speech, and (3) speech that falls into neither of these categories” — and explained that speech in the first category should be analyzed under Bethel School District Number 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), speech in the second category should be analyzed under Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), and speech in the third category should be analyzed under Tinker, 393 U.S. at 513-14, 89 S.Ct. 733. See 978 F.2d at 529.

As both parties concede, Plaintiffs’ speech falls into neither of the first two categories. Plaintiffs thus argue that, just as the policy in Tinker was found uneonstitutional because allowing students to wear black armbands in silent protest would not “substantially interfere with the work of the school or impinge upon the rights of other students,” 393 U.S. at 509, 89 S.Ct. 733, the policy here (i.e., forbidding students from wearing their choice of clothing to school) should be found unconstitutional because it fails Tinker's “substantial interference” test, as well.

What Plaintiffs miss — but the district court and one of our sister circuits have correctly recognized — is a key flaw in this logic. See Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 441-43 (5th Cir.2001); Jacobs, 373 F.Supp.2d at 1175-81. While Chandler certainly says that all speech in the third category must be analyzed under Tinker, it does not say that all speech in this category has to be evaluated at the same level of scrutiny as that ultimately used in Tinker. In other words, while Chandler dictates that Tinker must guide our analysis of this case, it does not require us to blindly apply the standard employed therein. We thus start by carefully examining what the Tinker decision does— and, even more importantly, what it does not — say.

a. Tinker Is Silent About How Content-Neutral Regulations of Pure Speech and Regulations Affecting Expressive Conduct Should be Evaluated

In Tinker, a group of students had arranged to wear black armbands to school *430to protest the involvement of the United States in the Vietnam War. 393 U.S. at 504, 89 S.Ct. 733. Upon learning of this plan, the Des Moines Independent School District adopted a policy prohibiting students from wearing such armbands, apparently fearing the disturbance they might cause. Id. at 504, 508, 89 S.Ct. 733. When the students were suspended for violating the no-armband policy, they filed suit, arguing that the policy violated their rights to free speech under the First Amendment. Id. at 504, 89 S.Ct. 733.

The Supreme Court agreed, holding that, “[i]n order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Id. at 509, 89 S.Ct. 733. The Court further explained:

[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

Id. at 508-509, 89 S.Ct. 733 (internal citation omitted).

In short, the Court made clear that suppressing the expression of unpopular or controversial opinions — even in the name of avoiding potential in-school disturbances — was a violation of the First Amendment unless the school could show that, absent such suppression, the school’s orderly operation would be “materially and substantially” compromised. Id. at 509, 89 S.Ct. 733.

Despite Plaintiffs’ attempt to read Tinker more broadly, this is all Tinker expressly holds. Two things are notable about this limited holding. First, as the Court itself made clear, its “substantial interference” test applies only to restrictions on “pure speech,” and does not necessarily apply to school policies placing incidental restrictions on expressive conduct. See id. at 507-08, 89 S.Ct. 733 (“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.”); King v. Saddleback Jr. Coll. Dist., 445 F.2d 932 (9th Cir.1971) (declining to employ Tinker analysis to student’s claim that policy disallowing long hair for male students violated the First Amendment). Thus, Tinker leaves unresolved the question of how restrictions upon expressive conduct in schools should be evaluated.25 But see generally Texas v. Johnson, 491 U.S. 397, 406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (“The government generally has a freer hand in restricting expressive conduct than it has in restricting [pure speech].”).

Second, the holding itself extends only to viewpoint-6ased speech restrictions, and not necessarily to viewpoint-neutral speech restrictions. Although these two terms of art had not yet been used by the Supreme Court when Tinker was decided in 1969, see Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. *4312440, 49 L.Ed.2d 310 (1976), the Tinker opinion makes clear that the Court’s principal objection to the armband prohibition was that it was motivated by a “desire to avoid the discomfort and unpleasantness that ... accompany an unpopular viewpointL” 393 U.S. at 509, 89 S.Ct. 733 (emphasis added). In essence, the Court found the armband prohibition unconstitutional not simply because it worked to prohibit students from engaging in a form of pure speech, but because it did so based on the particular opinion the students were espousing. Id. at 510-11, 89 S.Ct. 733 (finding it significant “that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance, ... [but only] the wearing of armbands ... worn to exhibit opposition to this Nation’s involvement in Vietnam”).

Although a slightly more expansive reading of Tinker suggests that its mode of analysis should also be used when a school’s regulation is content-based (not only when it is viewpoint-based),26 no reading of Tinker suggests that viewpoint- and content-neutral restrictions on student speech should also be subjected to “Tinker scrutiny.” Indeed, neither this court nor the Supreme Court has ever analyzed a contenfineutral restriction on student speech under Tinker; rather, the Tinker test has only been employed when a school’s restrictions have been based, at least in part, on the particular messages students were attempting to communicate.27

It is thus our view that Tinker says nothing about how viewpoint- and content-neutral restrictions on student speech *432should be analyzed, thereby leaving room for a different level of scrutiny than that employed in either Bethel, Hazelwood, or Tinker when student speech is restricted on a viewpoint- and content-neutral basis. Accord Canady, 240 F.3d at 441-43.28

b. District’s School Uniform Policies Are Viewpoint- and Content-Neutral

Before turning to precisely what level of scrutiny that should be, we pause to explain why we find the school uniform policies at issue in this case to be both viewpoint- and content-neutral29 and, thus, deserving of a different level of scrutiny than that applied to the viewpoint-based policy in Tinker.

On its face, the portion of the Regulation authorizing schools to implement mandatory uniform policies is aimed at “increasing student achievement, promoting safety, and enhancing a positive school environment.” Nothing in the Regulation’s language suggests it was directed at the type of messages or specific viewpoints previously conveyed by students’ wardrobe choices; indeed, the record evidence unambiguously indicates that the District’s purpose in enacting the Regulation was to further the Regulation’s stated goals, not to suppress the expression of particular ideas.30 For example, the referendum sent to parents listing the advantages and disadvantages of the proposed uniform policy included as potential advantages: (1) “Pro-mot[ing] safety by reducing the ability to hide weapons, drugs or alcohol”; (2) “Allowing] students and staff to focus more attention to increasing student achievement”; (3) “Eliminating] dress differences that emphasize different income levels”; and (4) “Simplif[ying] daily school preparation and maintenance for families.” None of the proposed advantages related to the “benefits” of preventing students from expressing unpopular views or communicating about particular subjects via their clothing choices.

Of course, while evidence of a viewpoint- and content-neutral purpose strongly suggests that a regulation is, in fact, content-neutral, mere assertion of a benign purpose is insufficient to conclusively establish a regulation’s content-neutrality. Turner, 512 U.S. at 642, 114 S.Ct. 2445. Here, Plaintiffs argue that, despite the District’s stated purposes, the Regulation is not content-neutral because it allows student clothing to contain the school logo — an allowance that, in Plaintiffs’ view, sanctions expression of messages touting the District’s schools, but not messages relating to any other topic or viewpoint.

At first blush, Plaintiffs’ argument seems viable. Indeed, if the Regulation allowed for school uniforms that consisted *433only of plain-colored clothing without any words, logos, or printed material whatsoever, Plaintiffs’ argument against the Regulation’s content-neutrality would almost certainly fall flat. As it stands, however, Plaintiffs have at least a colorable claim that, by allowing student clothing to contain school logos, the Regulation reflects an impermissible content-based (and, indeed, viewpoint-based) preference for expressions of school pride.

While the District could have steered far clear of the First Amendment’s boundaries by foregoing the logo provision entirely, we nevertheless conclude that allowing students’ otherwise solid-colored clothing to contain a school logo — an item expressing little, if any, genuine communicative message — does not convert a content-neutral school uniform policy into a content-based one.

Indeed, the District’s very narrow exception to its otherwise content-neutral school uniform policy is a far cry from those regulations previously found by the Supreme Court to be content-based. See, e.g., United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (statute restricting cable companies’ dissemination of sexual programming); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) (ordinance banning commercial handbills on news racks but allowing newspapers); Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (statute prohibiting display of signs critical of a foreign government near a foreign embassy); Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (statute prohibiting all picketing in residential neighborhoods except labor picketing tied to a place of employment); Police Dep’t of City of Chi. v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (similar); see also ACLU of Nev. v. City of Las Vegas, 466 F.3d 784 (9th Cir.2006) (ordinance prohibiting speech soliciting donations, “charity, business or patronage”).

Moreover, “[wjhatever marginal expression wearing [a school] logo implicates, it does not rise to the level of expression to implicate concerns of viewpoint [non] neutrality.” Long v. Bd. of Educ. of Jefferson County, Ky., 121 F.Supp.2d 621, 625 n. 5 (W.D.Ky.2000). The content-based/content-neutral dichotomy is not grounded in the text of the First Amendment itself, but was created by the Supreme Court as a tool for distinguishing those regulations that seek to advance “legitimate regulatory goals” from those that seek to “suppress unpopular ideas or information or to manipulate the public debate through coercion rather than persuasion.” Turner, 512 U.S. at 641, 114 S.Ct. 2445. Here, Plaintiffs put forth no evidence that the Regulation’s logo allowance was an attempt by the District to inundate the marketplace of ideas with pro-school messages or to starve that marketplace of contrary opinions; rather, all evidence suggests that the District considered the logo to be an identifying mark, not a communicative device.

We thus decline Plaintiffs’ invitation to take the term “content-based” to its literal extreme, and we hold that the District’s school uniform policies are content-neutral despite their allowances for clothing containing school logos.31

*434c. Intermediate Scrutiny Is the Appropriate Standard

As discussed above, the school uniform policies at issue here implicate the First Amendment only insofar as they place content-neutral restrictions on students’ pure speech and place incidental restrictions on students’ expressive conduct.32 Because neither type of restriction is governed by Tinker, see supra Part II.A.1, we must now decide how to evaluate the constitutionality of these policies.

Outside the school speech context, the Supreme Court has repeatedly held that a law restricting speech on a viewpoint- and content-neutral basis is constitutional as long as it withstands intermediate scrutiny — -i.e., if: (1) “it furthers an important or substantial government interest”; (2) “the governmental interest is unrelated to the suppression of free expression”; and (3) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Turner, 512 U.S. at 661— 62, 114 S.Ct. 2445. The same is true of a regulation that has an incidental effect on expressive conduct. United States v. O’Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).33

We agree with the district court that this same level of scrutiny should extend to the school speech context. See Jacobs, 373 F.Supp.2d at 1181; accord Canady, 240 F.3d at 443.34 Applying intermediate scrutiny to school policies that effect content-neutral restrictions upon pure speech or place limitations upon expressive conduct (or, as is the case here, do both) not only strikes the correct balance between students’ expressive rights and schools’ interests in furthering their educational missions, but, as the Fifth Circuit explained, is entirely consistent with the Supreme Court’s other school speech precedents, not to mention the remainder of the Court’s First Amendment jurisprudence. See Canady, 240 F.3d at 442-43.35

*435Accordingly, if the District’s school uniform policies advance important government interests unrelated to the suppression of free speech, and do so in ways that effect as minimal a restriction on students’ free expression as possible,36 then the uniform policies should be upheld. We now turn to whether those criteria are satisfied here.

2. Applying Intermediate Scrutiny

a. School Uniform Policies Further Important Government Interests

The District claims its uniform policies further three important state interests: (1) “increasing student achievement”; (2) “promoting safety”; and (3) “enhancing a positive school environment.” 37 The District supports its claim with affidavits from school personnel confirming that the school uniform policies were implemented with these purposes in mind and that the policies have, in fact, been effective in advancing these goals.

Plaintiffs do not contend that the District’s stated interests are unimportant or insignificant. Instead, they argue that, even though these interests may be laudable, the District’s real justification for its uniform policies was its goal of “visible conformity” — an interest Plaintiffs argue is not important or substantial. But this is not how the intermediate scrutiny test works. Indeed, a court’s job in evaluating a policy under this test’s first step is to determine whether the government’s stated goals qualify as important or substantial. See Turner, 512 U.S. at 664, 114 S.Ct. 2445 (specifically, the court must determine whether the government’s evidence “demonstrate[s] that the recited harms are real, not merely conjectural and that the regulation will in fact alleviate these harms in a direct and material way”). Whether those stated goals are mere pretexts for a more insidious government purpose is taken up in the second and third steps of the analysis. See id.; O’Brien, 391 U.S. at 377-80, 88 S.Ct. 1673.

Here, the government’s stated goals unquestionably qualify as “important.” See Canady, 240 F.3d at 443-44 (finding comparable goals sufficiently important to withstand intermediate scrutiny); Blau v. Fort Thomas Public Sch. Dist., 401 F.3d 381, 391-92 (6th Cir.2005) (“[Bjridging socioeconomic gaps between families within the school district, focusing attention on learning, increasing school unity and pride, enhancing school safety, promoting good behavior, reducing discipline problems, improving test scores, improving children’s self-respect and self-esteem, helping to eliminate stereotypes and producing a cost savings for families ... are all important governmental interests [served by a school uniform policy].”). Indeed, it is hard to think of a government interest more important than the interest in fostering con*436ducive learning environments for our nation’s children.

Additionally, not only do affidavits from District administrators indicate that the school uniform policies have been effective in achieving the Regulation’s three goals— which itself is evidence that the contemplated “harms are real” and that the policies do “in fact alleviate these harms in a direct and material way,” Turner, 512 U.S. at 664, 114 S.Ct. 2445- — -the Department of Education has also acknowledged the efficacy of school uniforms in advancing such state interests. See U.S. Dep’t of Ed. Manual on Sch. Uniforms (1996), available at http://www. ed.gov/updates/uniforms. html.38 In the absence of any evidence from Plaintiffs that the uniform policies fail to advance the important government interests of increasing student achievement, enhancing safety, and creating a positive school environment, we conclude that the first prong of the intermediate scrutiny test is satisfied.

b. The District’s Interests Are Unrelated to the Suppression of Free Expression

Because the District’s stated interests are “unrelated to the suppression of free expression,” we conclude that the second prong of the intermediate scrutiny test is satisfied, as well. See Turner, 512 U.S. at 662, 114 S.Ct. 2445; O’Brien, 391 U.S. at 377, 88 S.Ct. 1673.

On their face, the District’s goals have nothing to do with quelling speech or limiting expression. Accord Castorina ex rel. Rewt v. Madison County Sch. Bd., 246 F.3d 536, 548 (6th Cir.2001) (Kennedy, J., concurring) (“[A] stable, disruption-free educational environment is a substantial government interest ... unrelated to the suppression of student expression.”). Additionally, the record is devoid of any evidence suggesting that the District’s stated goals were mere pretexts for its true purpose of preventing students from expressing their views on particular subjects, such as support for a particular faith (in Jacobs’s case) or opposition to conformity (in Dresser’s case). The District may have known that views like these would be incidentally suppressed because of its schools’ uniform policies; however, its reasons for enacting the uniform policies were — as far as the record reveals — entirely divorced from preventing student speech.

Again, the referendum sent home to parents is telling. Although the District acknowledges in this referendum that its school uniform policies would limit student creativity and restrict students’ freedom to express themselves in nonviolent ways, it lists these effects in the “Cons — Disadvantages” column, thus implying that the District enacted the Regulation authorizing school uniforms not because of, but in spite of, the impact school uniform policies would have on students’ expressive opportunities. We thus conclude that the District’s interests are not pretexts for an underlying desire to limit free speech but, rather, are directed only at creating an educational environment free from the distractions, dangers, and disagreements that *437result when student clothing choices are left unrestricted. Cf. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (expressing less First Amendment concern regarding policies “aimed not at the content” of the forbidden speech, but rather at the “secondary effects” of that speech).39

c. The District’s School Uniform Policies Do Not Restrict More Speech Than Necessary

The third prong of the intermediate scrutiny test has been stated in several forms but, for purposes of this case, it focuses on whether the regulation “leave[s] open ample alternative channels” for student communication. Colacurcio v. City of Kent, 163 F.3d 545, 551 (9th Cir.1998).

As the district court appropriately noted, although the school uniform policies may limit students’ abilities to express themselves via their clothing choices, “students may continue to express themselves through other and traditional methods of communication throughout the school day.” For example, students are still permitted (if not encouraged) to have verbal conversations with other students, publish articles in school newspapers, and join student clubs. Moreover, even a student’s ability to communicate through his or her choice of clothing is not completely curtailed, as students are still permitted to choose what clothing to wear after school, on weekends, and at non-school functions.

Because the District’s uniform policies limit only one form of student expression (while leaving open many other channels for student communication) and apply during the narrowest possible window consistent with the District’s goals of creating a productive, distraction-free educational environment for its students,40 the District’s uniform policies are a narrowly-tailored way of furthering the District’s pedagogical goals without infringing upon students’ First Amendment rights any more than is necessary to achieve these goals. See Turner, 512 U.S. at 661-62, 114 S.Ct. 2445; O’Brien, 391 U.S. at 376-77, 88 S.Ct. 1673. Accordingly, the policies withstand intermediate scrutiny and do not unconstitutionally abridge a student’s rights under the First Amendment to engage in free speech while at school.

B. Compelled Speech

Plaintiffs next argue that the District’s uniform policies infringe upon students’ First Amendment rights because they compel students to express support for conformity — a message with which students like Dresser disagree.41 Although the district court did not address this argument in its order granting summary *438judgment, Plaintiffs did raise the argument both to the district court and in their opening brief here; thus, we will consider the contention on appeal. Donovan v. Crisostomo, 689 F.2d 869, 874 (9th Cir.1982).

Dresser contends that uniforms usually convey symbolic messages, see, e.g., Daniels v. City of Arlington, Tex., 246 F.3d 500, 504 (5th Cir.2001) (wearing police uniform conveys message of government-sanctioned authority), and thus that, by requiring him to wear a school “uniform,” Bridger compelled him to convey a symbolic message — here, support for conformity and community affiliation — against his will. We disagree. First, although there are times when “wearing a uniform is expressive, identifying the wearer with other wearers of the same uniform, and with the ideology or purpose of the group,” Church of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 206 (2d Cir.2004), wearing Bridger’s school uniform (which, here, consists of nothing more than plain-colored tops and bottoms) can hardly be compared to wearing the type of “uniform” contemplated in Kerik — i.e., a white hooded gown that clearly identifies its wearer as a member of the Ku Klux Klan and, presumably, as a subscriber to its views.42

Second, given both “the nature of [Dresser’s] activity” and “the factual context and environment in which it was undertaken,” the likelihood that a person viewing Dresser wearing his mandated school uniform would have understood Dresser to be conveying a message of conformity is extremely small. Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam) (finding conduct to be expressive only when that likelihood was “great”). Wearing a uniform does not involve written or verbal expression of any kind, cf. Barnette, 319 U.S. at 628-29, 642, 63 S.Ct. 1178 (requiring students to pledge allegiance to the American flag each morning), it is passive rather than active, cf. id., and if it conveys a message at all, that message is imprecise, rather than “particularized,” cf. Spence, 418 U.S. at 411, 94 S.Ct. 2727. See Troster v. Pa. State Dep’t of Corr., 65 F.3d 1086, 1090-91 (3d Cir.1995) (citing these reasons when concluding that requiring state corrections officers to wear American flag patch on their uniforms was not likely a form of compelled speech). Indeed, Dresser puts forth no evidence to suggest that, even though every student at Bridger was required to wear the uniform, a person observing these similarly clad students would understand any of them to be expressing a personal affinity for conformity. See id. at 1092.

Dresser’s argument that Bridger’s uniform policy amounts to a form of “compelled speech” thus fails. Indeed, Bridger does not force Dresser to communicate any message whatsoever — much less one expressing support for conformity or community affiliation — simply by requiring him to wear* the solid-colored tops and bottoms mandated by its uniform policy. Accord Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 283-86 & n. 8 (5th Cir.2001).

In sum, we conclude that none of Plaintiffs’ speech-related rights were violated by the District’s mandatory school uniform policies and, thus, summary judgment in the Defendants’ favor on these claims was appropriate.

*439III. Free Exercise Claims

Plaintiffs next contend that the District’s uniform policies violated their First Amendment rights to free exercise of religion. See U.S. Const, amend. I. Specifically, they claim that Liberty’s uniform policy unconstitutionally forbade Jacobs from wearing shirts expressing her religious beliefs and that Bridger’s refusal to grant Dresser an exemption from its uniform policy unconstitutionally forced Dresser to violate the anti-conformity teachings of his religion.

A. Jacobs’s Free Exercise Claim

Jacobs’s free exercise claim fails for the simple reason that both the Regulation and the school uniform policy Liberty implemented thereunder were “valid and neutral law[s] of general applicability” and, as such, did not implicate.the Free Exercise Clause at all. See Employment Div., Or. Dep’t of Human Res. v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990); cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). There is no evidence in the record suggesting that Liberty was motivated to enact its uniform policy because its administrators “disapprove^] of a particular religion or of religion in general.” City of Hialeah, 508 U.S. at 532, 113 S.Ct. 2217. Moreover, Liberty’s policy prohibits students like Jacobs from wearing message-bearing t-shirts not because Liberty feared students would undertake to do so for religious reasons, but because Liberty did not want students to encounter any clothing-related distractions during the school day. Id.

Indeed, a school uniform policy like Liberty’s is the quintessence of a “neutral [rule] of general applicability.” Smith, 494 U.S. at 879, 110 S.Ct. 1595. The policy applies to all students equally (regardless of the students’ religious beliefs), and it prohibits conduct (i.e., wearing clothing in colors and styles other than that prescribed by the uniform policy) that presents no obvious impediments to the free exercise of any particular religion or religions. Thus, like other regulations that have been found to be “neutral” and “of general applicability,”43 the District’s Regulation (and the individual uniform policies it authorizes) do not implicate the Free Exercise Clause.

B. Dresser’s Free Exercise Claim

Although Dresser makes a somewhat different free exercise argument, our analysis is, in essence, the same.

Dresser contends that his school arbitrarily denied him a religious exemption from its mandatory uniform policy and that this denial itself violated his free exercise rights. As the district court concluded, Dresser is correct that his school was *440not permitted to inquire into the validity or orthodoxy of Dresser’s religious beliefs when deciding whether or not to exempt him from its mandatory uniform policy. See Jacobs, 373 F.Supp.2d at 1185 (citing Littlefield, 268 F.3d at 292-93). The district court, however, already struck the religious exemption on this ground — an aspect of its decision neither party appeals. See id.

Thus, the only argument Dresser can make now (other than the argument that the district court’s remedy for curing the Regulation’s grant of “unfettered discretion” to school administrators impermissibly leaves the Regulation without any religious exemption whatsoever-an argument that is now moot)44 is that he is entitled to at least nominal damages based on Bridger’s prior refusal to grant him an exemption from its uniform policy. As explained in the previous section, however, the District’s school uniform policies are neutral laws of general applicability and, thus, even if Dresser’s beliefs about non-eonformity were sincerely held and religious in nature, see Malik v. Brown, 16 F.3d 330, 333 (9th Cir.1994), he had no right under the Free Exercise Clause to a religious exemption. Smith, 494 U.S. at 879, 110 S.Ct. 1595.

Accordingly, we conclude that the District’s mandatory school uniform policies infringed upon neither Jacobs’s nor Dresser’s free exercise rights.45

IV. Due Process Claims

Plaintiffs’ final contention is that them due process rights were violated because they were each made subject to a mandatory school uniform policy that was implemented without following the parental survey procedures included in the original Regulation.46

*441We first clarify that Plaintiffs are not making the due process argument typically made in school policy cases — i.e., that District schools disciplined students like Jacobs and Terry for violating the mandatory uniform policies without first confirming, via “fundamentally fair procedures,” that the alleged violations actually occurred. Cf. Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (recognizing need for procedural due process before student can be suspended and thereby deprived of her “legitimate entitlement to a public education” and her interest in her “good name, reputation, honor, [and] integrity”). Jacobs and Terry admit they violated their schools’ uniform policies and have never contended that they were disciplined — and, in Jacobs’s case, repeatedly suspended — without being given fair warning of the prohibited conduct or an opportunity to explain their behavior. See id. at 579, 95 S.Ct. 729.

Instead, Plaintiffs make the novel argument that the District schools at issue violated due process when they acted in “complete defiance of their own regulations” and instituted school uniform policies absent the requisite level of parental approval.

As the district court correctly concluded, however, even if the manners in which these District schools implemented their uniform policies violated the Regulation,47 they did not violate the Fourteenth Amendment. It has long been recognized that individuals have nq due process right to participate in government policymaking. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 444-46, 36 S.Ct. 141, 60 L.Ed. 372 (1915) (due process not violated when taxpayer adversely impacted by new local ordinance was given no opportunity to be heard before ordinance was passed). Moreover, Plaintiffs provide no authority for their suggestion that a federal due process claim lies whenever a local entity deviates from its own procedures in enacting a local regulation.48 Accordingly, although it might be preferable for schools to seek parental approval before instituting controversial school policies, and it might be a violation of state law for schools not to do so if a local statute or regulation so dictates,49 the Due Process Clause in no way requires this. See id. at 445, 36 S.Ct. 141.

CONCLUSION

We thus affirm the district court’s grant of summary judgment in favor of the District. Neither the District’s Regulation nor the individual school uniform policies implemented thereunder violate Plaintiffs’ *442free speech, free exercise, or due process rights.

AFFIRMED.