In Waln v. Dysart School District, (9th Cir., Dec. 9, 2022), the U.S. 9th Circuit Court of Appeals held that a free speech and free exercise suit against an Arizona school district should not have been dismissed by the district court. The school district refused to allow a Native American student to wear an eagle feather in her cap during graduation ceremonies. Wearing the eagle feather, which had been blessed and is considered a sacred object, was a religious practice. Sustaining plaintiff's Free Exercise claim, a majority of the court said in part:
Plaintiff has carried her burden, at the motion-to-dismiss stage, to show that the District’s policy [prohibiting decoration of graduation caps] is not generally applicable because it was enforced in a selective manner.
The court also held that plaintiff should be able to move ahead on her free speech claim, saying in part:
Here, the complaint plausibly alleges that the District enforced its facially neutral policy in a selective way.
The majority rejected the school district's contention that it had a compelling interest in complying with the Establishment Clause.
Judge Baker filed an opinion dissenting in part, contending that plaintiff had not adequately alleged that the school district selectively enforced its policy against decorating graduation caps. However, he believed that the district court erred in not permitting plaintiff to amend her complaint to provide more factual content.
