Full opinion text
ORDER HUNT, District Judge. (Motion to Dismiss-# 17 Motion to Dismiss-# 22 Motion to Exceed Page Limit-# 24 Cross Motion for Partial Summary Judgment — # 29) Before the Court is Defendants’ Motion to Dismiss (# 17), filed December 7, 2005, and Defendant’s substantially similar Motion to Dismiss (#22), filed January 13, 2005. The Court has also considered Plaintiffs’ Opposition (# 19), filed December 27, 2005; Defendants’ Reply (#20), filed January 10, 2005; Defendants’ Supplement in Support of Defendants’ Motion to Dismiss (# 25), filed February 24, 2005; Plaintiffs Supplemental Opposition (# 28), filed April 4, 2005; and Defendants’ Supplemental Reply (#31), filed April 25, 2005. Also before the Court is Defendant’s unopposed Motion to Exceed Page Limit (# 24), filed February 24, 2005. Also before the Court is Plaintiffs Motion for Partial Summary Judgment (#29), filed April 4, 2005. The Court has also considered Defendants’ Opposition (# 31), filed April 25, 2005, as well as Plaintiffs’ Reply (# 33), filed May 15, 2005. BACKGROUND This case arises from Liberty High School’s attempt to enforce a mandatory dress code on one of its students, and centers on the question of whether a Nevada law allowing for the creation of a mandatory dress code, a Clark County School District regulation adopted in accordance with the Nevada law, and the individually-named Defendants’ enforcement of a mandatory school uniform policy constitute impermissible restraint on speech under the First Amendment. Plaintiff Kim Jacobs and her father were the original Plaintiffs in this action. Kim was an Eleventh Grade student at Liberty High School in Las Vegas during the fall of 2004. At that time, Liberty High had implemented what it defined as a “Campus Wardrobe,” requiring students to wear Khaki pants and either red, white, or blue shirts without any printed material thereon. Liberty High claims to have adopted its wardrobe requirement pursuant to NRS 392.458 and the original Clark County School District Regulation 5131 (hereafter Original CCSD Reg. 5131). NRS 392.458 authorizes Nevada state school districts to implement mandatory uniform policies and states, in its entirety, 1. The board of trustees of a school district may, in consultation with the schools within the district, parents and legal guardians of pupils who are enrolled in the district, and associations and organizations representing licensed educational personnel within the district, establish a policy that requires pupils to wear school uniforms. 2. The policy must: (a) Describe the uniforms; (b) Designate which pupils must wear the uniforms; and (c) Designate the hours or events during which the uniforms must be worn. 3. If the board of trustees of a school district establishes a policy that requires pupils to wear school uniforms, the board shall facilitate the acquisition of school uniforms for pupils whose parents or legal guardians request financial assistance to purchase the uniforms. 4. The board of trustees of a school district may establish a dress code enforceable during school hours for the teachers and other personnel employed by the board of trustees. Pursuant to NRS 392.458, Clark County School District (hereafter CCSD) promulgated Original CCSD Reg. 5131, a regulation allowing schools to adopt a mandatory school uniform dress code and outlining the requisite actions a school must take to implement such a dress code. Original CCSD Reg. 5131 provides that CCSD schools may individually determine what is appropriate dress (Original CCSD Reg. 5131 I., II., and III., identified by Defendants as “dress restrictions” that fall short of constituting a mandatory school uniform policy), and may implement a “mandatory school uniform policy” (Original CCSD Reg. 5131 VI.) If a school desires to implement a mandatory school uniform policy, Original CCSD Reg. 5131 VI.A. provides that the school must survey all families at the school, with 51% of the surveys returned and indicating a 70% favorable response supporting school uniforms from the respondents, and the parent- survey shall only present the question of whether a mandatory school uniform policy should be implemented. If the survey returns indicate that a mandatory school uniform policy is approved, notification of the adoption of the proposed policy is to be distributed to students, parents, and staff prior to the end of a current “school year,” for implementation at the beginning of the subsequent school year. Original CCSD Reg. 5131 V.II.E. The Original CCSD Reg. 5131 VI.C. also provides that, where a mandatory school uniform policy has been implemented: (1) students must wear the uniform during regular school hours, subject to the principal’s retained authority to grant exceptions for special oecasions/events; (2) the uniform does not restrict wearing the uniform of a nationally-recognized youth organization such as the Boy Scouts or the Girl Scouts when those organizations have their meeting days; (3) a student is not considered non-compliant if wearing a school uniform violates the religious beliefs of a student or parent; (4) schools must assist in the purchase of uniforms for students who, for reason of financial hardship, cannot comply with the uniform policy; (5) parents who choose not to have their child participate in the uniform policy are eligible to apply for a zone variance so that their child may attend another school; (6) no student may receive a lowered grade because of non-compliance with the uniform policy; and (7) where a student fails to comply with the uniform policy, a conference must be held with the students’ parent, and continued non-compliance will result in progressive disciplinary action. Liberty High defined its Campus Wardrobe policy as a “dress restriction” that did not amount to a mandatory student uniform policy, and asserted that such a dress restriction was exempt from the uniform policy requirements relating to the parental survey identified in Original CCSD Reg. 5131. According to Defendants’ uncontrovert-ed factual statement and evidence, Kim was warned, reprimanded, and suspended over a six-week period for failure to abide by Liberty High’s Campus Wardrobe policy, culminating in her indefinite suspension on October 27, 2004 pending a recommendation that she attend Cowan Behavior Program because of her continued noncompliance with the school’s uniform policy. On October 28, 2004, Kim and her father brought suit against Clark County School District (hereafter CCSD) and various of CCSD’s employees, alleging the violation of First Amendment Expressive and Free Exercise Rights and Fourteenth Amendment due process rights, and requesting a Temporary Restraining Order and Preliminary Injunction barring the enforcement of the dress code for the duration of the litigation. On October 29, 2004, this Court denied Plaintiffs’ requested TRO, and on November 10, 2004, granted Plaintiffs requested Preliminary Injunction. The Injunction barred enforcement of the dress code policy against Kim during the litigation and was premised on the finding that Liberty High’s Campus Wardrobe policy was in fact a mandatory student uniform policy under Original CCSD 5131, and that Plaintiffs were likely to prevail on the merits because Liberty High had failed to follow CCSD’s own administrative regulations for enacting a mandatory dress code in that Liberty High did not conduct the requisite parent survey and that Defendants did not offer zone variances to students who did not wish to participate in the uniform policy. In the Order granting Preliminary Injunction, the Court specifically disclaimed that the Order in any way addressed the merits of the underlying First Amendment claims or applied in any way to any other of CCSD’s schools that have enacted a mandatory dress code; notwithstanding, the Court noted as dicta its inclination to find that the Fifth Circuit’s decision in Canady v. Bossier Parish School Board, 240 F.3d 437 (5th Cir.2001) had correctly applied Supreme Court precedents to find that a school district may impose content-neutral school uniforms without running afoul of the First Amendment, but that the Court held serious reservations respecting content-specific uniform exemptions made in CCSD Reg. 5131 for “nationally-recognized youth organizations such as the Boy Scouts or the Girl Scouts.” On November 18, 2004, CCSD promulgated Revised CCSD Reg. 5131, which was largely similar to the Original CCSD Reg. 5131 with a few notable exceptions. First, Revised CCSD Reg. 5131 removes the exemptions previously recognized for nationally-recognized youth organizations, such as the Boy Scouts and Girl Scouts. Second, Revised CCSD Reg. 5131 eliminates the parental survey requirements set forth in Original CCSD Reg. 5131, and provides in its stead that a uniform policy may be implemented where 55% of the surveys returned indicate a desire to implement the policy, without making reference to how many families must respond to the survey and without requiring the school to survey all student families. Finally, Revised CCSD Reg. 5131 provides for the continuity of those uniform policies adopted under the Original CCSD Reg. 5131 and allows for a non-participation option for the 2004-05 school year. On November 24, 2004, Kim withdrew from Liberty High on the alleged basis that she suffered from the notoriety that she gained as a Plaintiff in this action, and is now living with her mother in northern Nevada. On December 7, 2004, Defendants file the pending Motion to Dismiss on the basis that Kim Jacobs’ departure from Liberty High rendered Plaintiffs’ claims moot and invalidated Plaintiffs’ standing to sue. On December 27, 2004, Plaintiffs filed their First Amended Complaint, naming additional Plaintiffs representing students who attended other schools within CCSD that have implemented a mandatory uniform policy. Specifically, Plaintiffs included: Dwight Terry Jr., a student at Chaparral High who, Plaintiffs allege, was sent to the principal’s office for the remainder of the day on five occasions for failure to abide by the school uniform requirement, as well as his father, Dwight Terry; Shane Dresser, a student at Bridger Middle School who, Plaintiffs allege, was threatened with disciplinary action if he did not abide by the school uniform requirement in spite of his mother’s claim that she had a religious objection to a requirement that her son wear a uniform, as well as his parents, Donald and Wendy Dresser; John Doe I, a student at Taylor Elementary, as well as his mother, Lona Finley; John Doe II, a student at Taylor Elementary, as well as his mother, Deanna Wright; Whitney Rose, a student at Gar-side Junior High, as well as her mother, Lynn Rose. Plaintiffs also allege that: Chaparral High, Liberty High, and Jim Bridger instituted dress codes without surveying parents as required under the Original CCSD Reg. 5131; Garside High instituted a school uniform requirement even though the required parental survey did not support imposing the requirement; and Taylor Elementary instituted the uniform policy on the basis of a faulty and invalid survey process and without holding the requisite town meeting. On January 13, 2005, Defendants filed the pending Motion to Dismiss, which is substantially similar to their previous motion. On January 25, 2005, this Court directed the parties to supplement their briefing respecting Defendants’ motions in order to address the core constitutional questions in this litigation, and indicated that the Court may consider Defendants’ Motions to Dismiss under the summary judgment standard. Supplemental briefing was subsequently filed. On April 4, 2005, Plaintiffs filed their pending Motion for Partial Summary Judgment. DISCUSSION I. Defendants’ Motion To Exceed Page Limit In the way of housekeeping, the Court notes that Defendants have requested permission to exceed the page limit requirements set forth in local rules in the filing of their Supplement. This Motion is unopposed, and the issues which the Court has asked the parties to address are substantial and susceptible of lengthy exposition. The Court finds that Defendants’ request is not for any improper purpose and is warranted, and accordingly the Motion will be granted. II. Summary Judgment Standard Defendants have brought their Motion to Dismiss on the basis of Rule 12(b)(6) of the Federal Rules of Civil Procedure, alleging that Plaintiffs failed to state a claim upon which relief can be granted. Rule 12(b) also provides, in pertinent part, that: If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented and not excluded by the court, the motion shall be treated as one for summary judgment, and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. In its Order filed January 23, 2005, this Court advised the parties that it “may consider [Defendants’ Motion to Dismiss as] a motion for summary judgment, if it is necessary for the parties to provide matters outside the pleadings,” Id. at 2:8-9, and directed the parties to supplement their briefings to address the constitutional arguments at issue in this litigation. Subsequent to that Order, both the Plaintiffs and Defendants filed supplemental briefs that included submitted matters outside of the pleadings and recognized in those supplemental briefs that the Court would be considering Defendants’ Motion under the summary judgment standard. See Defendants’ Supplemental Brief in Support of Motion for Partial Summary Judgment at 4:13-15 (noting that the Court’s January 23, 2005 Order converted Defendants’ Motion to Dismiss into a Motion for Summary Judgment); Plaintiffs’ Opposition/Counter Motion for Partial Summary Judgment (referring to Defendants’ Motion as one for “Partial Summary Judgment” and addressing the Summary Judgment standard only). In conformity with its previous indication, the parties’ recognition of that indication, and given that both parties have presented matters outside of the pleadings, this Court will consider Defendants’ Motion to Dismiss under the summary judgment standard. Summary judgment is proper when “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 the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). An issue is “genuine” only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is “material” only if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view all facts and draw all inferences in the light most favorable to the non-moving party. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). Once the moving party satisfies the requirements of Rule 56, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex Corp. v. Ca-trett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists,” Bhan v. NME Hosp., Inc., 929 F.2d 1404 (9th Cir.1991), and “must do more than simply show that there is some metaphysical doubt as to the material- facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). III. The Jacobs Plaintiffs’ Standing In their original Motion to Dismiss and subsequent filings, Defendants assert that the Jacobs Plaintiffs’ claims should be dismissed because she and those associated with her claims lack standing. As the Ninth Circuit has noted, Plaintiffs must have standing before bringing suit in a federal court, and this standing requirement has both constitutional and prudential dimensions. The Article III limitations are “(1) a threatened or actual distinct and palpable injury to the plaintiff; (2) a fairly traceable causal connection between the injury and the defendant’s challenged conduct; arid (3) a substantial likelihood that the requested relief will redress or prevent the injury.” [Hong Kong Supermarket v. Kizer, 830 F.2d 1078, 1082 (9th Cir.1987)]. The prudential limitations include a requirement that the plaintiff “assert his own rights, rather than rely on the rights or interests of a third party” and “allege an interest that is arguably within the zone of interests protected or regulated by the statute or constitutional guarantee in question.” Id. Wedges/Ledges of California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 61 (9th Cir.1994). Defendants challenge the Jacobs’ standing on both constitutional and prudential standing grounds, and the Court will address that assertion. Defendants assert that constitutional and prudential standing are absent because 1) Kim no longer lives with her father, who brings this action as a “next friend” Plaintiff; 2) Kim Jacobs no longer attends school in the Clark County School District, such that CCSD Reg. 5131 no longer has any relevance for Kim; and 3) Kim has not experienced actual injury in connection with the implementation of Liberty High’s mandatory uniform requirement. In opposition, Plaintiffs assert that 1) Kim’s parents are both named as next-friend Plaintiffs, and there is no effort by Kim’s mother to end the next-friend Plaintiff status of Kim’s father; 2) Kim left Liberty because of the notoriety surrounding her case, and desires to return if and when Liberty abandons its mandatory uniform policy; and 3) Kim’s past expulsion may form the basis for allegations of damages. Respecting Plaintiff Donald Jacobs, the Court agrees with Plaintiffs that, so long as both of Kim’s parents agree to assert jointly this litigation as next friends of Kim, they may do so as her parents, regardless of whether those parents are presently married to one another. Defendants have provided no authority to the contrary, nor so much as alleged that Kim’s mother objects to Donald Jacobs’ participation in this litigation. With regard to the arguments respecting the validity of Kim’s claims, the Court notes that Kim has moved to Northern Nevada, and no longer attends any school belonging to CCSD. Accordingly, the question of whether CCSD Reg. 5131 or Liberty High’s school uniform requirement are constitutionally valid is a moot issue as it affects Kim. However, as Plaintiffs illustrate in their Opposition/Motion for Partial Summary Judgment, Kim also alleged in her suit that NRS 392.458 is unconstitutional, and this is not obviated by Kim’s relocation to another school district in Nevada; thus, Kim continues to have standing to prosecute that aspect of her suit. While Kim’s interests in the constitutionality of Revised CCSD Reg. 5131 going forward have ended, any claim for damages that she may have experienced prior to her departure would continue to be a valid claim. However, in the face of Defendants’ Motion (that this Court had signaled it would treat as one for Summary Judgment), the continuity of any claim for damages arising prior to Kim’s departure must be supported by admissible evidence, else it is in jeopardy. The Court will address that subject, infra. Accordingly, the Court finds the requirements of constitutional standing are met, given that the Jacobs Plaintiffs have brought suit against a requirement that is both a threatened and actual distinct and palpable injury to Kim, there is a traceable causal connection between the injury and the constitutionality of the law and Defendants’ action, and the requested relief will redress or prevent that injury. Moreover, the Court finds without difficulty that the Jacobs Plaintiffs have prudential standing, given that Plaintiffs assert their own rights and allege an interest that is within the zone of interest protected/regulated by the Nevada law at issue. IV. Plaintiffs’ Freedom of Expression/Free Exercise of Religion Claims A. Preliminary Freedom of Expression Considerations. In considering Plaintiffs’ challenge to NRS 392.458 and CCSD Reg. 5131 and assertion that the Defendants’ conduct was unconstitutional, the Court must first determine: (1) whether a student’s choice of attire may constitute sufficiently expressive conduct such that it may be fairly considered “speech” and within the ambit of First Amendment protection; (2) whether the student Plaintiffs’ choice of attire constituted such speech; and (3) which articulated First Amendment standard should be taken by this Court’s as a guide in considering the constitutionality of Nevada law and Defendants’ conduct in establishing and enforcing a mandatory school uniform. The Court proceeds to those inquiries. 1. May a student’s choice of attire constitute “speech” under the First Amendment? Prior to considering what speech standard should be applied against a mandatory school uniform requirement, the Court first considers whether student attire may properly be considered “speech,” thereby qualifying for protection under the First Amendment. The First Amendment reads, in its entirety, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Supreme Court has found that the First Amendment is applicable to the States by incorporation under the Fourteenth Amendment. Employment Div., Oregon Dep’t of Human Resources v. Smith, 494 U.S. 872, 876-77, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In relation to expression, the First Amendment specifically addresses only speech. However, the Supreme Court has found that conduct, when mixed with elements of expression, also implicates the First Amendment’s protection, though action/regulation that infringes on such expression is to be evaluated on a different basis than that alleged to infringe upon purer forms of expression. See generally Cox v. Louisiana, 379 U.S. 559, 563-64, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) (distinguishing between protection afforded the mixed expression of picketing and parading and that afforded to the pure expression of newspaper editorials, editorial cartoons, and telegrams). As the Supreme Court has summarized, The First Amendment literally forbids the abridgment only of “speech,” but we have long recognized that its protection does not end at the spoken or written word. 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,” United States v. O’Brien, [391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) ], we have acknowledged that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,” [Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) ]. In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked 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.” [Spence, 418 U.S. at 410-411, 94 S.Ct. 2727.] Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). “[T]he nature of appellant’s activity, combined with the factual context and environment in which it was undertaken” are relevant considerations in determining whether the communicative aspects of conduct amount to speech. O’Brien, 391 U.S. at 376, 88 S.Ct. 1673. After applying the considerations outlined by the Supreme Court above, this Court has no difficulty in concluding that student attire may indeed constitute speech on many levels, and thereby implicate First Amendment rights. While the decision to wear one piece of clothing over another may be no more than a matter of taste, the choices that students make in dressing themselves can be — and often are — guided by much more nuanced and complex considerations than simple aesthetics. Clothing may constitute pure speech when it bears printed language. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (shirt bearing message derogatory of the military draft considered political speech). Clothing may also be meant to demonstrate group affiliation by indicating ethnicity (e.g., a culture’s traditional dress), social class (e.g., brand name or custom clothing), religion (e.g., bearing cross, star of David), political affiliation (e.g., bearing elephant, donkey); or other symbols signifying group or viewpoint association (e.g., a band’s concert shirt, gangland paraphernalia, or shirt featuring a marijuana leaf). Student clothing may be used to challenge authority, assert sexuality, or defy a variety of stereotypes. Conversely, student clothing may be intended to demonstrate acquiescence in the prevailing order, to stifle sexuality, or to conform with prevailing stereotypes. While various intentions behind the choices driving what students wear may be diverse and often conflicting, the Supreme Court has held that they may constitute “speech” so long as the choice of clothing demonstrates an intent to convey a particularized message and the likelihood is great that the message will be understood by those who view the clothing. See Johnson, 491 U.S. at 404, 109 S.Ct. 2533 (citing Spence, 418 U.S. at 410-411, 94 S.Ct. 2727). Accordingly, the Court finds that a student’s selection of clothing may constitute speech impinging on First Amendment protection under the parameters defined by the Supreme Court. 2. Did the student Plaintiffs’ choice of attire constitute “speech” under the First Amendment? Having determined that student clothing may constitute “speech” under the First Amendment, the Court turns its consideration to whether the student clothing at issue in this case possessed sufficient communicative elements to implicate the First Amendment. The undisputed facts indicate that Kim Jacobs wore shirts bearing religious messages, that Kim intended to convey her religious affiliation and/or beliefs through wearing those shirts, and that Liberty High’s enforcement of its Campus Wardrobe policy precluded her wearing of such shirts. Given the Cohen Court’s conclusion that wearing clothing bearing a printed message constitutes speech (see Cohen, 403 U.S. 15, 91 S.Ct. 1780), Kim’s choice of attire would seem clearly to indicate an attempt to convey a particularized message with a high likelihood that the message would be understood by those who view the clothing, regardless of whether wearing that clothing was a necessary aspect of her religious beliefs. Consequently, the Court finds that Kim’s clothing constitutes speech within the ambit of First Amendment protection. The Dresser Plaintiffs allege that Shane Dresser refused to wear the Campus Wardrobe because the wearing of a uniform is contrary to his religious beliefs. Shane Dresser’s mother, Wendy, requested a religious exemption to the uniform requirement, and the School denied that request. Wendy subsequently provided a letter from the pastor of her church supporting that assertion, but the School continued to deny her requested exemption. Regardless of whether Shane or Wendy Dresser’s religion actually forbad the wearing of a school uniform — and taking as true Plaintiffs’ substantiated allegations for purposes of evaluating Defendants’ Motion — this Court finds sufficient evidence to indicate that Shane Dresser’s refusal to submit to his school’s uniform requirement was imbued with sufficient communicative elements that the refusal constituted speech falling under the First Amendment’s protection. In making that determination, the Court takes as its guide the Supreme Court’s decision in Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), which found a New Hampshire law making it a crime to obscure the words “Live Free or Die” on the state’s license plates an unconstitutional infringement of the First Amendment. In reaching that conclusion, the Court noted that “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all,” and further stated that the “right to speak and right to refrain from speaking are complementary components” of the First Amendment’s protection. Id. at 714, 97 S.Ct. 1428. The Woo-ley Court went on to find that the “First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster ... an idea they find morally objectionable.” Id. at 715, 97 S.Ct. 1428. The question of whether the school’s attempt to restrict Shane Dresser’s “speech” (or lack thereof) in the classroom passes constitutional muster will be addressed in the next section; however, the Court views the Supreme Court’s decision in Wooley to establish that Shane Dresser’s refusal to comply with the uniform requirement on the basis of religious and moral objection constitutes, at the least, expressive speech within the ambit of the First Amendment. After reviewing the record, the Court finds no averment by Dwight Terry that he intended to convey a particularized message in refusing to comply with the uniform requirement. In Plaintiffs’ Amended Complaint, Plaintiffs aver that “On at least five occasions during the Fall 2004 semester, Plaintiff Dwight Terry Jr. was sent to the principal’s office for the remainder of the school day for failure to wear the required school uniform.” At ¶23. Both Plaintiffs’ Original Opposition (# 19) and Supplemental Opposition/Counter Motion for Partial Summary Judgment (## 28,29) repeat the exact same language without adding any indication that Dwight intended to convey any message through his choice of clothing, or indeed without making any other reference to Dwight Terry. Because Plaintiffs have failed to advance any argument or evidence indicating that Dwight Terry intended to communicate a particularized message through his choice of clothing in the face of a Motion for Summary Judgment — a necessary antecedent to finding that expressive conduct rises to the level of speech — this Court finds as a matter of law that Dwight Terry’s refusal to submit to a school uniform policy does not evoke First Amendment protection. After reviewing the record, the Court finds no averment by Whitney Rose, John Doe I, or John Doe II that they intended to convey a particularized message in refusing to comply with the uniform requirement. Indeed, there is no allegation or evidence anywhere in the record concerning whether these students’ ever even attempted to wear clothing not in harmony with the uniform requirement, whether having done so these students were ever disciplined in any manner for refusing to abide by the uniform requirement, or indicating that these students would have intended some communicative message in their choice of clothing; rather, all that Plaintiffs aver is that Garside Elementary adopted the uniform policy without the requisite parental support, and that the mothers of John Does I and II allege procedural error in the adoption of Glen Taylor Elementary’s uniform requirement. These assertions will be addressed elsewhere, infra. Because Plaintiffs have failed to advance any argument or evidence indicating that these students intended to communicate a particularized message through their choice of clothing in the face of the Summary Judgment standard, this Court finds as a matter of law that these students’ (alleged) objections to a school uniform policy do not evoke First Amendment protection. 3. Applicable First Amendment standard. Having found that a student’s choice of attire may implicate the First Amendment, and that Kim Jacobs and Shane Dresser’s choice of attire did implicate the First Amendment, the Court proceeds to consider which First Amendment principles should govern the consideration of the constitutionality of the Nevada law and the actions of the individually-named Defendants. Plaintiffs assert that the Ninth Circuit’s decision in Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir.1992), requires the Court to analyze the Nevada laws and Defendants’ conduct under the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and that application of Tinker would proscribe the Nevada law and regulation and the conduct of Defendants. Defendants argue that the law is content neutral, and that the appropriate analysis is therefore under either 1) intermediate scrutiny as defined in the Supreme Court’s decision in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) and the Fifth Circuit’s application of O’Brien to dress codes, or 2) a non-public forum analysis, as employed in Phoenix Elementary School District v. Green, 189 Ariz. 476, 943 P.2d 836 (1997). The Court begins its consideration by noting that, while students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker, 393 U.S. at 506, 89 S.Ct. 733, students’ First Amendment rights are not “automatically coextensive with the rights of adults in other settings,” Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). Specifically, 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 Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Fraser, 478 U.S. at 685, 106 S.Ct. 3159). “ ‘The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board,’ and not with the federal courts.” LaVine v. Blaine School Dist., 257 F.3d 981, 988 (9th Cir.2001) (quoting Hazelwood, 484 U.S. at 267, 108 S.Ct. 562). Plaintiffs assert that the definitive case addressing student speech in the Ninth Circuit is Chandler v. McMinnville School Dist., 978 F.2d 524 (1992). In Chandler, an Oregon high school’s teachers went on strike, and two of the striking teachers’ student sons wore buttons on their clothing to school one day bearing messages critical of the replacement teachers brought in by the school district during the strike. Two of these buttons displayed the phrases “I’m not listening scab” and “Do scabs bleed?” The two students distributed similar buttons to some of their classmates, and one of the students tried to take a picture of one of the temporary administrators. This temporary administrator objected, and accompanied both students to the vice principal’s office, where the vice principal told the boys to remove the buttons because the buttons were “disruptive.” The students objected, the vice president insisted, the students refused, and the students were suspended for the remainder of the day. On the following day, the students wore other buttons that were also critical of the replacement teacher policy (one that read “Scabs” with a line drawn through it and another with the phrase “Scab we will never forget”) and urged an end to the strike. That afternoon, the vice principal told one of the students to remove the buttons; anticipating further disciplinary action if he refused, the student complied with the request. Both students subsequently filed suit against the school district, alleging that their First Amendment rights to Free Expression had been violated by the vice principal’s actions. In evaluating their claims, the Chandler Panel found that the students’ button-based expression was “akin to pure speech,” and reviewed three Supreme Court opinions in which the Court considered the level of scrutiny that ought to be applied to the regulation of student speech. In Tinker, Junior High School students were suspended for wearing black armbands intended to communicate their disapproval of the United States’ activities in Vietnam. Tinker, 393 U.S. 503, 89 S.Ct. 733. The Tinker Court ultimately found that the students’ conduct was “silent, passive expression of opinion, unaccompanied by any disorder or disturbance,” and that such disturbance was unlikely. Id. at 508, 89 S.Ct. 733. The Tinker Court then concluded that “where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained.” Id. at 509, 89 S.Ct. 733. The student expression at issue in Fraser consisted of a speech given at a high school assembly that contained sexual innuendo and metaphor. Fraser, 478 U.S. 675, 106 S.Ct. 3159. In response, the School Board suspended the student for three days and barred him from the opportunity to speak at his graduation. On those facts, the Fraser Court held that such school action was entirely within its permissible authority in imposing sanctions upon Fraser in response to his offensively lewd and indecent speech. Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint. The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as [Fraser’s] would undermine the school’s basic educational mission.... Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the “fundamental values” of public school education. Id. at 685-86, 106 S.Ct. 3159. Finally, the student speech at issue in Hazelwood consisted of two pages of an issue of a school newspaper edited and written by school students that were forcibly deleted by school administrators. 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592. The principal caused the pages to be deleted because they consisted of an article addressing students’ experiences with pregnancy, and another article describing the impact of divorce on students at the school, and the principal determined that such topics were inappropriate content for the student paper. Under those facts, the Hazelwood Court found Tinker inapposite, noting that the Tinker standard was too restrictive when determining “when a school may refuse to lend its name and resources to the dissemination of student expression.” Id. at 261, 108 S.Ct. 562. The Court then validated discretionary editorial control by school officials over the school-sponsored newspaper “so long as their actions are reasonably related to legitimate pedagogical concerns.” Id. After reviewing those three decisions, the Chandler Panel concluded that all student speech may be classified into one of three categories: (1) vulgar, lewd, obscene, and plainly offensive speech (governed by Fraser); (2) school-sponsored speech (governed by Hazelwood); and (3) all other speech (governed by Tinker). Chandler, 978 F.2d at 529. Under that rubric, the Chandler Panel found the students’ button-based expression was not vulgar, lewd, obscene, or plainly offensive, and also that the students’ buttons could not be reasonably construed as school-sponsored speech; accordingly, the speech fell into the “all other speech” category, governed by Tinker. In applying Tinker to the facts at hand, the Chandler Panel found that the school district had failed to establish that the wearing of the buttons would substantially disrupt or materially interfere with school activities, and, consequently, the school district’s actions imper-missibly infringed on the students’ First Amendment right to Free Expression. Nine years later, another Ninth Circuit panel applied the Chandler Court’s rubric in LaVine v. Blaine School District, 257 F.3d 981 (9th Cir.2001) in finding, pursuant to Tinker, that a school district’s actions in expelling a student after he submitted a violent poem to one of his teachers was warranted because the poem fell under the Tinker-governed “all other speech” category and constituted information that might reasonably have led authorities to forecast substantial disruption of or material interference with school activities. Plaintiffs assert that, in conformity with the Chandler Panel’s rubric — and the La-Vine Panel’s continuing endorsement of that rubric- — this Court must find that CCSD’s mandatory dress code is “other speech” and falls under Tinker, that CCSD has failed to demonstrate that non-mandatory dress codes would materially and substantially interfere with the requirements of appropriate discipline in the operation of the schools, and that NRS 392.458 (authorizing mandatory dress codes) and CCSD Reg. 5131 (implementing that authorization) are therefore unconstitutional. After considering the Chandler Panel’s opinion and the Supreme Court precedents upon which it is predicated, this Court finds that the issue of a mandatory dress code falls outside those categories of speech contemplated in Chandler. Though that conclusion may appear to be a non sequitur at first blush, given the “all other speech” category established by the Chandler Panel, that conclusion is necessary and implicit in assigning the Tinker standard to such speech. In Tinker, Justice Fortas began his majority opinion discussion of the requisites of the First Amendment by identifying what the Court was NOT considering in applying the First Amendment to student Vietnam War protests. He wrote: The problem posed by the present case does not relate to the regulation of the length of skirts or the type of clothing, to hair style, or deportment. Cf. Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir.1968); Pugsley v. Sellmeyer, 158 Ark. 247, 250 S.W. 538, 30 A.L.R. 1212 (1923). It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to “pure speech.” Tinker, 393 U.S. at 507-08, 89 S.Ct. 733. This Court finds that a mandatory student dress code is either that type of “speech” regulation disclaimed by the Tinker Court when referencing “type of clothing” regulation, or that such a code is within the same genre of appearance and conduct “speech” regulation which the Tinker Court exempts from its ruling. This Court opines that such a conclusion is straight-forward and uncomplicated by more common pitfalls of the lexicon in which lawyers and laypersons often delve and occasionally founder, though “types of clothing” be susceptible of many meanings; the phrase may refer to the color, quality (e.g., ripped, frayed, transparent), quantity (e.g., the length of shorts or skirts), state (e.g., soiled, stained, unbuttoned, untied), style (e.g., casual or formal), origin (e.g., brand name, logo), or communicative intent (e.g., bearing a message or symbol) of the clothing. Each of these meanings describe physical attributes of that material in which one may choose to vest oneself. Given that commonality and the absence of any differentiating factor in the Tinker reference to “types of clothing,” the Court finds no basis, cause, or occasion to elevate one of these definitions above the others identified in considering what the Tinker Court intended by referring to “types of clothing,” and will treat the mandatory dress code at issue as a regulation respecting “type of clothing” contemplated in Tinker. In making that determination, this Court finds that the Tm/cer-diselaimed regulation of appearance and conduct may constitute “speech,” thereby implicating First Amendment protection, and that the Tinker Court intended to indicate that possibility. Directly following the Tinker Court’s articulation of the disclaimed “speech,” the Tinker Court cites “Cf.” to Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir.1968) and Pugsley v. Sellmeyer, 158 Ark. 247, 250 S.W. 538, 30 A.L.R. 1212 (1923). In Ferrell, the Fifth Circuit held, inter alia, that a school’s refusal to enroll students with hair longer than that permitted by the school’s regulation did not violate the First Amendment right to Freedom of Expression. In so ruling, the Ferrell panel stated that, while the length of the students’ hair constituted symbolic speech, the school’s interest in maintaining an effective and efficient school system through governing student appearance and comportment constituted a sufficiently compelling reason for the state to infringe on the students’ intended expression. Ferrell, 392 F.2d at 702-03 (stating that “The Constitution does not establish an absolute right to free expression of ideas.... The constitutional right to free exercise of speech, press, assembly, and religion may be infringed by the state if there are compelling reasons to do so.”). The Tinker Court’s reference to Ferrell appears to this Court to indicate that the Tinker Court would place a student’s choice of hair style within that genre of “speech” consisting of conduct mixed with elements of expression contemplated by the Court in Johnson, 491 U.S. at 404, 109 S.Ct. 2533, and elsewhere. If that surmise is correct, the Tinker Court would appear to likewise indicate it would consider that the other mentioned aspects of appearance and conduct — a student’s length of skirt, type of clothing, and deportment — may constitute mixed speech as well. In Pugsley, the Arkansas Supreme Court found that a school district’s proscription of immodest dress and the wearing of cosmetics by female students (ostensibly to maintain student discipline) did not constitute abuse of the district’s discretion or violate the law. While the Pugsley Court did not specifically consider the dress code at issue within the context of a Fust Amendment challenge, its discussion of the school board’s actions — and the Tinker Court’s citation to that discussion — is instructive in considering what approach is appropriate in applying the strictures of the Fust Amendment to a district-imposed student dress code, and in divining the type of deference that the Tinker Court would afford the regulation of such speech. The Pugsley Court first adopted a general statement concerning the state of the law, noting that because the Court will not interfere with school directors’ discretion unless there is a clear abuse of that discretion, “the courts are usually disinclined to interfere with regulations adopted by school boards, and they will not consider whether the regulations are wise or expedient, but merely whether they are a reasonable exercise of the power and discretion of the board.” Pugsley, 250 S.W. at 539 (citation omitted). The Pugsley Court continued: The question, therefore, is not whether we approve this rule as one we would have made as directors of the district, nor are we required to find whether it was essential to the maintenance of discipline. On the contrary, we must uphold the rule unless we find that the directors have clearly abused their discretion, and that the rule is not one reasonably calculated to effect the purpose intended, that is, of promoting discipline in the school; and we do not so find.... Courts have other and more important functions to perform than that of hearing the complaints of disaffected pupils of the public schools against rules and regulations promulgated by the school boards for the government of the schools. The courts have this right of review, for the reasonableness of such rule is a judicial question, and the courts will not refuse to perform their functions in determining the reasonableness of such rules, when the question is presented. But, in doing so, it will be kept in mind that the directors are elected by the patrons of the schools over which they preside, and the election occurs annually. These directors are in close and intimate touch with the affairs of their respective districts, and know the conditions with which they have to deal. It will be remembered also that respect for constituted authority and obedience thereto is an essential lesson to qualify one for the duties of citizenship, and that the schoolroom is an appropriate place to teach that lesson; so that the courts hesitate to substitute their will and judgment for that of the school boards which are delegated by law as the agencies to prescribe rules for the government of the public schools of the state, which are supported at the public expense. Id. This Court understands the Tinker Court’s reference to Pugsley to indicate the type of deference that the Tinker Court would afford the regulation of the disclaimed speech. Given the subject matter of this litigation and the Court’s conclusions above, a review of the Tinker majority’s disclaimer begs consideration of the question, “how are ‘regulation of the length of skirts or the type of clothing,’ ‘hairstyle,’ or ‘deportment’ to be evaluated in the context of a First Amendment challenge in the Ninth Circuit?” In many (if not most) instances, these categories of “speech” will not constitute vulgar, lewd, obscene, and plainly offensive speech such that the speech is wholly inconsistent with public education’s fundamental values. Nor does such “speech” fall under school-sponsored speech. In fact, such “speech” would appear, per Chandler’s tripartite classification, to fall into the “other speech” category, which Chandler tells us is governed by Tinker. Yet the Tinker Court specifically states that its decision is inapposite respecting the regulation of such “speech.” Thus, the Court must infer from the Chandler panel’s reference to Tinker — and the Tinker Court’s explicit disclaimer — -that a fourth category of “speech” exists that must be considered separate and distinct from the Chandler panel’s “other speech” category. While the Court is reticent to distinguish or otherwise narrowly construe a holding of the Circuit, such a conclusion as that reached by this Court above is the only application of the Chandler panel’s decision in that area of “speech” disclaimed by the Tinker Court if Chandler and Tinker are to be reconciled in light of the scheme enunciated by Chandler. The Court notes that its conclusion that the Chandler panel’s reference to Tinker necessitates a fourth category of speech is consonant with the Ninth Circuit’s decision in King v. Saddleback Jr. College District, 445 F.2d 932 (9th Cir.1971), a decision predating Chandler by some twenty years and that Chandler did not expressly overturn. In King, the respondent students at petitioner school and junior college districts contested as unconstitutional the districts’ school dress code requirements relating to length of hair. After considering the facts and law, the King panel found that respondents had failed to allege a supportable claim that the length of their hair constituted symbolic speech. In reaching that conclusion, the panel stated that Tinker was inapposite in considering the legitimacy of the prescribed hair length restriction: “we do not believe that Tinker, supra, controls either of these cases since Tinker appears to clearly distinguish between rights akin to ‘pure speech’ and those school regulations having to do with personal appearance, style of clothing, or deportment.” King, 445 F.2d at 937. After reviewing and rejecting other constitutional bases for challenging the hair-length requirement, the King panel concluded: This is not a question of preference for or against certain male hair styles or the length to which persons desire to wear their hair. This court could not care less. It is a question of the right of school authorities to develop a code of dress and conduct best conducive to the fulfillment of their responsibility to educate, and to do it without unconstitutionally infringing upon the rights of those who must live under it. We do not believe that the plaintiffs have established the existence of any substantial constitutional right which is in these two instances being infringed. We are satisfied that the school authorities have acted with consideration for the rights and feelings of their students and have enacted their codes, including the ones in question here, in the best interests of the educational process. A court might disagree with their professional judgment, but it should not take over the operation of them schools. Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). Id. at 940. While the King panel acknowledged that it made its ruling in the absence of factual allegations sufficient to indicate that student hair length was intended to constitute “symbolic speech,” the overall tone and substance of the King decision appear to this Court to bolster its conclusion that there exists a fourth category of speech under Tinker, that this category would include “speech” involving the dress, grooming, and comportment of public school students, and that the controlling standard for determining how a district may regulate such speech is to be found somewhere other than in Tinker. Accordingly, the Court must determine what considerations and level of review are appropriate for evaluating the regulation of speech falling under this fourth category. After considering those decisions to have addressed this issue (and Defendants’ arguments), the Court finds most persuasive the Fifth Circuit’s decisions in Canady v. Bossier Parish School Board, 240 F.3d 437 (5th Cir.2001), and Littlefield v. Forney Independent School Dist., 268 F.3d 275 (5th Cir.2001). In Canady, students enrolled in school districts that implemented a mandatory school uniform brought suit on the basis that such a regime violated the students’ First Amendment right. After concluding that a student’s choice of clothing may be “endowed with sufficient levels of intentional expression to elicit First Amendment shelter,” Id. at 440, the Canady panel reviewed the three standards for student expression set forth in Hazelwood, Fraser, and Tinker, and found that the respondent board’s mandatory, viewpoint-neutral uniform policy did not readily conform to any of the three standards. The Canady panel then considered and rejected the Ninth Circuit’s decision in Chandler to relegate “all other speech” to a Tinker analysis, holding that: 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. [Hazelwood ], 484 U.S. at 271, 108 S.Ct. 562, 98 L.Ed.2d 592. 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, 106 S.Ct. 3159, 92 L.Ed.2d 549. 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 [Hazelwood ], 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 Non-Violence, 468 U.S. 288, 298, 104 S.Ct. 3065, 82 L.Ed.2d 221 ... (1984) (comparing the time, place and manner analysis to the test outlined in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 ... (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. Id. at 443. The Canady panel then considered the constitutionality of the respondent school board’s mandatory school uniform under the standard set forth in O’Brien, and concluded that: (1) improving the educational process and concerns for the health, safety, and order of public schools, as addressed by the school uniform requirement, are important and substantial government interests; (2) those interests are unrelated to the suppression of student expression and are viewpoint neutral; and (3) the school uniform-induced restriction on First Amendment activities is not more than is necessary given that students may wear what they will after school hours and students may still express their views through other mediums during the day, and are otherwise free to engage in the “personal intercommunication among students” that the Tinker Court indicated is a necessary aspect of an effective educational process. See Tinker, 393 U.S. at 512, 89 S.Ct. 733. On similar facts — and following that approach taken in Canady — the Lit-tlefield panel reached the same conclusions and result. See Littlefield, 268 F.3d at 287. After considering the Canady and Littlefield decisions and their import, the Court finds that the approach articulated by the Fifth Circuit in those two cases is consonant with and correctly synthesizes Supreme Court precedents with respect to a fourth category of speech, adequately balances the free expression rights of students against the corresponding interests of furthering the educational mission of schools, and best makes sense of and is faithful to the Ninth Circuit’s pronouncements in Chandler and King. Accordingly, the Court takes Canady and its application of the O’Brien test as the Court’s guide in evaluating whether NRS 392.458 and CCSD Reg. 5131 are unconstitutional, and whether the actions of Defendants have violated Plaintiffs’ First Amendment rights. B. NRS 392.458 and Plaintiffs’ Freedom of Expression claims. While nearly all of Plaintiffs’ assertions address either whether any mandatory school uniform policy may be constitutional or whether CCSD Reg. 5131 was implemented correctly, Plaintiffs also assert that NRS 392.458 itself is an unconstitutional infringement on Plaintiffs’ Freedom of Expression rights. In considering the law outlined above, the Court finds that no aspect of NRS 392.458 violates the First Amendment’s prohibitions, nor is NRS 392.458 vague or overbroad in its. import. The Court finds that an O’Brien analysis is unwarranted with respect to NRS 392.458, given that the law does not in itself create a mandatory school uniform but only provides that such a uniform requirement may be established by school districts in the State of Nevada. As the Court has concluded above, a mandatory uniform requirement may be implemented without violating the First Amendment’s precepts so long as the OBrien considerations