A federal appeals court has revived a First Amendment lawsuit brought by a Native American student who alleges she was barred from attending her high school graduation ceremony because of a sacred eagle feather she had added to her cap.
The student, Larissa Waln, says the Dysart, Ariz., school district violated her right to free speech and free exercise of religion because officials allowed other students in the district to attend their commencement ceremonies with adorned caps despite a supposedly strict policy against decorations on caps or gowns. Waln graduated in May of 2019.
In reviving Waln’s suit, a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled 2-1 that she adequately alleged that the school district had applied its policy against cap and gown decorations selectively, and that her free speech and free exercise claims could proceed.
Waln’s suit “points to one student in particular who attended a high school graduation in the district—on the same day and at the same venue—sporting a ‘breast cancer awareness’ sticker on his graduation cap, in apparent violation of the policy,” says the majority in its Dec. 9 decision in Waln v. Dysart School District “If the district did not enforce the policy to exclude a student’s secular message then, in the absence of an appropriate justification, the district cannot enforce its policy to burden plaintiff’s religious conduct.”
Waln, an enrolled member of the Sisseton Wahpeton Oyate Tribe, says in court papers that her grandmother had given her the eagle feather, which had been blessed in a Native American religious ceremony, to wear at her graduation. Many Native American children wear such eagle feathers for significant events in their lives, court papers say.
The district says its policy is meant to avoid disruption and promote unity among the graduating class. Officials declined a request from Waln’s father to grant her an exemption from the policy. When Waln arrived at a Glendale, Ariz., stadium for her high school commencement with the eagle feather on her cap, district officials kept her from entering.
Waln’s evidence of selective enforcement is based on a later commencement from another high school in the Dysart district, when officials allegedly allowed deviation from the dress code, and one student was photographed with a breast-cancer awareness message.
The school district argued that one compelling reason for barring a student from wearing a sacred eagle feather was that it feared violating the First Amendment’s clause barring government establishment of religion.
In rejecting that contention, the 9th Circuit majority cited the U.S. Supreme Court’s decision last June in Kennedy v. Bremerton School District, which upheld a high school football coach’s postgame personal prayers on the field.
“As the Supreme Court emphasized in Kennedy, the establishment clause does not ‘compel the government to purge from the public sphere anything an objective observer could reasonably infer endorses or partakes of the religious,’” Judge Susan P. Graber wrote for the majority.
In a partial concurrence and partial dissent, Judge M. Miller Baker said he agreed that wearing an eagle feather was a religious practice under the First Amendment. But he questioned whether Waln had offered sufficient evidence that the school district was applying its policy selectively to allow her suit to proceed. He said the district judge should have allowed Waln to amend her suit, so he concurred in reviving the case.
