Donald Jackson v. Pearl Public School Distr ( 2015 )

Case: 13-60631 Document: 00513193221 Page: 1 Date Filed: 09/15/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 15, 2015
No. 13-60631
Lyle W. Cayce
Clerk
DONALD JACKSON, as Natural Parent and Next Friend on Behalf of a
Minor; MELISSA JACKSON, as Natural Parent and Next Friend on Behalf
of a Minor,
Plaintiffs - Appellees
v.
JOHN LADNER, Individually and as Superintendent of Pearl Public Schools;
RAY MORGIGNO, Individually and as Principal of Pearl High School;
TOMMIE HILL, Individually and in her capacity under Pearl High School;
TIFFANY DURR, Individually and in her capacity under Pearl High School,
Defendants - Appellants
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:09-CV-353
Before DENNIS and PRADO, Circuit Judges, and BROWN, District Judge. *
PER CURIAM: **
The plaintiffs-appellees, parents of M.J., a former Mississippi public high
school student and cheer squad member, brought this suit pursuant to 42
* District Judge of the Eastern District of Louisiana, sitting by designation.
**Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-60631 Document: 00513193221 Page: 2 Date Filed: 09/15/2015
No. 13-60631
U.S.C. § 1983 on behalf of themselves and M.J. against teachers, a principal
and the superintendent of the Pearl Public School District in Pearl,
Mississippi, alleging violations of M.J.’s constitutional rights to privacy and
freedom of speech. They allege that the violations occurred in September 2007
when Tommie Hill, a Pearl High School teacher and cheer squad sponsor,
coercively requested M.J.’s Facebook log-in information and thereafter
accessed M.J.’s Facebook messages to K.E., a senior student and a captain of
the cheer squad. Hill took these actions based on reports she received from
K.E. and other students that M.J. had cursed at and threatened K.E. on the
bus ride returning from a cheer squad appearance at a local television station
and that M.J. had continued to send K.E. threatening and imprecating
Facebook messages afterwards. After inspecting the messages exchanged, Hill
confirmed that the Facebook correspondence contained threatening and
offensive language and concerned cheer squad activities. Accordingly, Hill
suspended M.J. from cheer squad activities for two weeks and required K.E. to
perform extra squad duties, including painting. M.J.’s parents asked the
principal, Ray Morgigno, and the superintendent, John Ladner, to reverse
Hill’s disciplinary actions against M.J., but they refused. This litigation
ensued. The defendants moved for summary judgment dismissing the claims
on grounds of qualified immunity. The district court denied the defendants’
motions and they appealed.
We reverse and remand the case for further proceedings. Although we
express no opinion as to whether the school officials’ conduct was
constitutionally infirm, we conclude that the school officials are entitled to
qualified immunity because it was not “clearly established” in September 2007
that it would violate either the First or Fourth Amendments for the teacher-
sponsor, acting on reasonable suspicion that M.J. had made threatening and
offensive remarks to K.E. during and immediately after a cheer squad event,
2
Case: 13-60631 Document: 00513193221 Page: 3 Date Filed: 09/15/2015
No. 13-60631
to demand access to M.J’s Facebook messages and to temporarily suspend her
from the squad based on her threatening and offensive remarks to K.E. related
to cheer squad activities.
I.
A.
During the fall semester in September 2007, the Pearl High School cheer
squad traveled to the WLBT television station in Jackson, Mississippi, and
appeared on the local news to promote “Food for Families,” a charitable cause.
At the time, M.J. 1 was a freshman member of the cheer squad. During the
filming at WLBT, a cameraman asked the squad to be quiet. M.J., however,
continued to talk. K.E., in her role as captain of the cheer squad, remonstrated
M.J.’s behavior and told her to be quiet. On the bus ride back to school, M.J.
and K.E. exchanged unpleasantries.
The next day, cheer squad sponsor Tommie Hill 2 was informed that M.J.
had threatened and cursed K.E. on the bus ride home from the television
station. Later, K.E. informed Hill that M.J. continued to make threatening
comments to her on the social-networking site Facebook.com. In response, Hill
spoke to the entire cheer squad about the dangers of communicating on
Facebook, including bullying, predatism, inappropriate photos, and other risks
to young people. She also reminded them that the squad represented the
school on and off campus. Hill then requested that the squad members provide
her with their Facebook usernames and passwords so that she could inspect
their Facebook accounts. According to the plaintiffs, Hill circulated a piece of
paper at the squad meeting on which Hill instructed the members to write
1 Because the students were minors at the time of the events in question, we use only
their initials to protect their identity.
2 Hill is also a teacher at Pearl High School.
3
Case: 13-60631 Document: 00513193221 Page: 4 Date Filed: 09/15/2015
No. 13-60631
down their Facebook usernames and passwords. In an affidavit, M.J. averred
that “Ms. Hill did not give [the squad members] a choice of whether to supply
[their] Facebook account information or not” and that because she “was taught
to respect authority and do as teachers told [her] to do, [she] wrote [her]
Facebook information on the notebook.”
That evening, Hill checked the squad members’ Facebook accounts,
including the correspondence between M.J. and K.E. M.J.’s messages to K.E.
included, but were not limited to, the following statements: “i am so sick of you
bossing me around . . . and so is other people on the squad . . . even tho they
wont admit it but im not scared to . . . and im sorry for wat i did at the news
station well not really”; “i mean im not tryin to be mean at all but if i have a
problem with you . . . i will confront you about it and im not gonna be nice about
it . . . and trust me . . . i dont care who you try and get to try and back you up”;
“trust me, the next time you or anyone else goes off on me . . . im not gonna be
nice and just say ok, there will be problems . . . and i may get kicked off the
squad for it but at least it was for a good reason cuz my parents didnt raise me
to not stick up for myself . . . you best believe that i will stick up for myself
with anyone!” 3 The time stamps on M.J.’s Facebook messages to K.E. indicate
that they were sent after normal school hours, and M.J. avers that she never
accessed her Facebook account from a school computer or on school property.
Based on the offensive and threatening language contained in these
messages, Hill suspended M.J. from the cheer squad for two weeks, which
resulted in M.J. being unable to participate in two pep rallies and one game
night. However, according to M.J., she “was not allowed to participate in the
majority of cheer practices” for the 2007-2008 school year. M.J. further avers
that “[w]ith the exception of an approximately one week period[,] . . . [she] was
The record also contains K.E.’s responses to M.J., but the content of K.E.’s responses
3
is immaterial to our disposition of this appeal.
4
Case: 13-60631 Document: 00513193221 Page: 5 Date Filed: 09/15/2015
No. 13-60631
willing and able to participate in cheer practice and performance.” In addition,
M.J. claims that she “was forced to carry the personal effects and equipment
of other cheerleaders”; was denied a participation ribbon at a cheer competition
during the 2007-2008 school year; and that Hill publicly expressed her belief
that M.J. should not receive a “spirit stick” despite being nominated for one by
a fellow cheerleader. Hill, however, denies that M.J. was actually suspended
from the squad for the balance of the school year; rather, she contends that
M.J. declined to participate on the team due to an injury. Notably, M.J. does
not claim that she was suspended from school, assigned to detention, or
otherwise restricted from attending regularly scheduled classes. Rather, her
allegations of punishment are limited to discipline affecting her participation
on the cheer squad. Hill also punished K.E. by assigning her extra squad
duties, including painting.
M.J.’s parents complained to Pearl High School Principal Ray Morgigno
about Hill’s conduct in accessing M.J.’s Facebook account and decision to
temporarily suspend M.J. from the squad, but Morgigno allegedly refused to
either reprimand Hill or reverse the punishment of M.J. The parents also
complained to Pearl Public School District Superintendent Dr. John Ladner
about Hill’s and Morgigno’s actions, but Ladner apparently also refused to
modify M.J.’s punishment or to reprimand Hill or Morgigno.
M.J. was not invited to join the cheer squad for the following school year.
According to Hill, M.J. “did not meet the tryout scoring requirements,” which
are “determined by set criteria and independent judges, who do not know these
students in advance.” M.J. also alleges that she was bullied by other students
following Hill’s access of her Facebook communications and the filing of this
lawsuit; that school officials did not intervene to protect her; and that she
suffered from anxiety and depression as a result of the treatment she received
from students and staff. In December 2009, allegedly “due to the cruel
5
Case: 13-60631 Document: 00513193221 Page: 6 Date Filed: 09/15/2015
No. 13-60631
treatment [she] was receiving in the Pearl Public School District, [M.J.’s]
family moved out of the . . . District.”
B.
On June 16, 2009, M.J.’s parents, individually and on behalf of M.J., filed
suit in the United States District Court for the Southern District of Mississippi
against Hill, Principal Morgigno, Superintendent Ladner, and Tiffany Durr,
who allegedly was also a teacher and co-sponsor of the Pearl High School cheer
squad. 4 Pertinent to this appeal, 5 plaintiffs alleged that the four defendants
(1) violated M.J.’s right to privacy under the First and Ninth Amendments by
accessing her private Facebook messages; and (2) violated M.J.’s right to free
speech under the First and Ninth Amendments by punishing her for the
content of her private Facebook messages.
Defendants moved for summary judgment dismissing plaintiffs’ privacy
and free-speech claims on the basis of qualified immunity, 6 which the district
4 The complaint also named the Mississippi Cheerleading Academy, LLC, school
official Cory Byrd, and various John Does, but those defendants were dismissed and are not
parties to this appeal.
5 Plaintiffs also claimed that defendants violated M.J.’s constitutional rights to free
association and due process, and that defendants’ conduct constituted cruel and unusual
punishment. Plaintiffs also asserted state law claims for intentional infliction of emotional
distress, defamation of character, and civil conspiracy. Plaintiffs subsequently abandoned
their due process and civil conspiracy claims in the district court. With the exception of the
free speech and constitutional privacy claims addressed herein, all remaining claims were
thereafter dismissed by the district court.
6 Defendants first filed a document confusingly titled “Motion for Qualified
Immunity,” which the district court docketed as a motion to dismiss. However, in their
memorandum in support of that motion, defendants recited the applicable standard of review
for a motion for summary judgment. More critically, defendants also attached to that
memorandum various exhibits under seal, including an affidavit from Hill and print-outs of
the Facebook correspondence between M.J. and K.E. Further, on appeal, defendants
repeatedly characterize their unsuccessful Motion for Qualified Immunity as a motion for
summary judgment, and plaintiffs do not challenge that characterization. In light of the
foregoing, although the district court orally referred to defendants’ Motion for Qualified
Immunity as a motion to dismiss during the hearing on that motion, we will construe the
motion as one for summary judgment. Our conclusion in this regard is further buttressed by
6
Case: 13-60631 Document: 00513193221 Page: 7 Date Filed: 09/15/2015
No. 13-60631
court denied. 7 The district court reasoned that the plaintiffs’ privacy and free-
speech claims were both grounded in “clearly established” law. Further, in
addition to concluding that plaintiffs’ claims were premised upon clearly
established law, the district court also concluded that disputed questions of
fact remained, namely whether M.J. voluntarily provided Hill with her
Facebook log-in information and also the extent of punishment that M.J.
actually received as a result of her Facebook communications with K.E. This
interlocutory appeal followed. 8
On appeal, defendants argue that the district court erroneously denied
their motion for summary judgment on the basis of qualified immunity.
II.
We have jurisdiction over the district court’s denial of defendants’ motion
for summary judgment on the basis of qualified immunity only “to the extent
that the appeal turns on a question of law.” Freeman v. Gore, 483 F.3d 404,
410 (5th Cir. 2007); see also Ortiz v. Jordan, 562 U.S. 180, 188 (2011).
Although we lack jurisdiction to review the court’s determination that a
genuine fact issue exists, we can nevertheless “review whether any factual
dispute found by the district court is material for summary judgment purposes;
the fact that it is clear from a review of the relevant hearing transcript that the district court
considered in its ruling the exhibits attached to defendants’ motion. See Kennedy v. Chase
Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004) (“If the district court considers
information outside of the pleadings, the court must treat the motion [to dismiss] as a motion
for summary judgment.”).
7The district court orally announced its ruling and articulated its reasoning at a
telephonic conference held on the motion.
8 Prior to filing their notice of appeal, defendants filed a Motion for Reconsideration.
After the filing of the notice of appeal to this court, the district court granted in part and
denied in part the defendants’ motion. The district court’s order would dismiss all claims
against Durr and the privacy claims against Morgigno and Ladner. However, because we
resolve this case on other grounds, we need not consider the effect of the district court’s Order
on the defendants’ Motion for Reconsideration. Cf. FED. R. APP. P. 12.1.
7
Case: 13-60631 Document: 00513193221 Page: 8 Date Filed: 09/15/2015
No. 13-60631
that is, the court can consider the legal sufficiency of the facts that the district
court found to be supported by the summary judgment record.” Freeman, 483
F.3d at 410. Further, “[t]he scope of clearly established law and the objective
reasonableness of those acts of the defendant that the district court found the
plaintiff could prove at trial are legal issues we review de novo.” Thompson v.
Upshur Cnty., 245 F.3d 447, 456 (5th Cir. 2001).
In the instant case, the district court made two rulings, one of which is
immediately appealable under the foregoing principles. The district court held,
first, that plaintiffs’ complaint stated a claim for the violation of M.J.’s “clearly
established” constitutional rights to free speech under the First Amendment
and to be free from unreasonable searches and seizures under the Fourth
Amendment; and second, that genuine issues of fact remained for trial with
respect to the voluntariness of M.J.’s consent for Hill to access her private
Facebook account, and with respect to what type and measure of punishment
that M.J. was subjected as a result of her allegedly inappropriate Facebook
communications with K.E. Only the first constitutional holdings involve “a
‘purely legal issue,’” viz., “the determination of what law was ‘clearly
established’ at the time the defendant acted.” Ortiz, 562 U.S. at 188 (quoting
Johnson v. Jones, 515 U.S. 304, 313 (1995)). Accordingly, the defendants may
immediately appeal the order premised upon those holdings and we therefore
will limit our review to considering whether the defendants violated law that
was “clearly established” at the time the events giving rise to this appeal took
place. See Mitchell v. Forsyth, 472 U.S. 511, 528–29 (1985).
III.
Qualified immunity shields federal and state officials from money
damages unless a plaintiff shows (1) that the official violated a statutory or
constitutional right, and (2) that the right was “clearly established” at the time
of the challenged conduct. See Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct.
8Case: 13-60631 Document: 00513193221 Page: 9 Date Filed: 09/15/2015
No. 13-60631
2074, 2080 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The
Court recently reaffirmed that lower courts have discretion to decide which of
the two prongs of qualified-immunity analysis to tackle first. Id. (citing
Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
“A Government official’s conduct violates clearly established law when,
at the time of the challenged conduct, ‘[t]he contours of [a] right [are]
sufficiently clear’ that every ‘reasonable official would have understood that
what he is doing violates that right.’” Id. at 2083 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). A case directly on point is not required,
“but existing precedent must have placed the statutory or constitutional
question beyond debate.” Id. As explained herein, the two constitutional
questions in this case fall short of that threshold.
A.
First, plaintiffs contend that M.J.’s constitutional right to privacy 9 was
violated when Hill obtained M.J.’s Facebook log-in information, subsequently
searched her account, and then disseminated the content of her messages with
K.E to other school officials. In evaluating this claim, we will take “as given”
that M.J. did not consent to the search of her Facebook profile. See Johnson,
515 U.S. at 319 (“When faced with an argument that the district court
9 In their complaint, plaintiffs asserted a claim for the violation of M.J.’s right to
privacy under the First, Ninth, and Tenth Amendments. However, as the district court’s
order and the parties’ briefing make clear, plaintiffs are in effect alleging a violation of M.J.’s
reasonable expectation of privacy guaranteed by the Fourth Amendment. Because the
Fourth Amendment more squarely governs the claim plaintiffs assert, we analyze M.J.’s
privacy claim under the relevant Fourth Amendment standards. See, e.g., Graham v. Connor,
490 U.S. 386, 394–95 (1989) (“Because the Fourth Amendment provides an explicit textual
source of constitutional protection against . . . physically intrusive governmental conduct,
that Amendment, not the more generalized notion of ‘substantive due process,’ must be the
guide for analyzing these claims.”); Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (citing
Graham v. Connor for the proposition that “constitutional claims must be addressed under
the most applicable provision”).
9
Case: 13-60631 Document: 00513193221 Page: 10 Date Filed: 09/15/2015
No. 13-60631
mistakenly identified clearly established law, the court of appeals can simply
take, as given, the facts that the district court assumed when it denied
summary judgment for that (purely legal) reason.”).
In New Jersey v. T.L.O., 469 U.S. 325 (1985), the Supreme Court
established a two-step inquiry for determining the reasonableness of a school
official’s decision to search a student. First, the Court explained, the search
must be “‘justified at its inception’” by the presence of “reasonable grounds for
suspecting that the search will turn up evidence that the student has violated
or is violating either the law or the rules of the school.” Id. at 342. Second, the
search must be “permissible in its scope,” which is achieved “when the
measures adopted are reasonably related to the objectives of the search and
not excessively intrusive in light of the age and sex of the student and the
nature of the infraction.” Id. However, although these constitutional
principles are now well-settled, this does not end our inquiry into whether the
defendants in the instant case violated “clearly established” Fourth
Amendment law. Rather, in determining whether a right was “clearly
established” at the time of an official action, we must look at the right violated
in a “particularized sense,” rather than “at a high level of generality.” See
Brosseau v. Haugen, 543 U.S. 194, 198–99 (2004) (per curiam). As the Supreme
Court recently has emphasized, however, “there is no need that ‘the very action
in question [have] previously been held unlawful.’” Safford Unified Sch. Dist.
No. 1 v. Redding, 557 U.S. 364, 377 (2009) (modification in original) (quoting
Wilson v. Layne, 526 U.S. 603, 615 (1999)). Outrageous conduct obviously will
be unconstitutional. Id. “But even as to action less than an outrage, ‘officials
can still be on notice that their conduct violates established law . . . in novel
factual circumstances.’” Id. at 377–78 (quoting Hope v. Pelzer, 536 U.S. 730,
741 (2002)). The salient question therefore is whether the defendants here had
“fair warning” that their conduct violated the Fourth Amendment, Hope, 536
10
Case: 13-60631 Document: 00513193221 Page: 11 Date Filed: 09/15/2015
No. 13-60631
U.S. at 739–40, meaning that the unlawfulness of their actions must be
“apparent” in light of pre-existing law, Anderson, 483 U.S. at 640. The
ultimate focus of our inquiry must be the “objective legal reasonableness” of
the defendants’ actions assessed in light of the “clearly established” law at the
time of the events in question. See Wilson, 526 U.S. at 614 (internal quotation
marks omitted).
Applying these principles to the instant case, we are compelled to
conclude that the defendants are entitled to qualified immunity on plaintiffs’
Fourth Amendment claim. At the time Hill requested and obtained access to
M.J.’s Facebook messages—in September 2007—no precedent had held that
the Fourth Amendment proscribed Hill’s actions, viz., the search of a student’s
electronic communications pertaining to school activities based on a reasonable
belief that those communications directed threats and offensive language to
another student about school activities and where those communications were
a continuation of a quarrel that began during a school-related activity. To the
contrary, as explained above, the Supreme Court’s 1985 decision in T.L.O. held
that a public school official ordinarily may search a student (and in the
circumstances of that case, the student’s purse) if, at the inception of the
search, the official has a reasonable suspicion “that the search will turn up
evidence that the student has violated or is violating either the law or the rules
of the school.” 469 U.S. at 341–42. The Court qualified that rule by stating
that “[s]uch a search will be permissible in its scope when the measures
adopted are reasonably related to the objectives of the search and not
excessively intrusive in light of the age and sex of the student and the nature
of the infraction.” Id. at 342. It was not until 2009 that the Court clearly
established that the Fourth Amendment prohibited the strip search of a 13-
year-old female student upon reasonable suspicion that she had brought
forbidden prescription and over-the-counter medications to school. Redding,
11
Case: 13-60631 Document: 00513193221 Page: 12 Date Filed: 09/15/2015
No. 13-60631
557 U.S. at 368. However, in light of the uncertainty about the scope of schools’
authority to conduct strip searches pursuant to T.L.O., the Court in Redding
granted qualified immunity to the school officials notwithstanding the fact that
the strip search in that case violated the Fourth Amendment. Id. at 378–79.
Similar reasoning compels the grant of qualified immunity here. The
undisputed evidence shows that M.J. and K.E.’s quarrel arose in connection
with the cheer squad’s visit to WLBT and continued on the bus ride back to
school from the station. Thereafter, during non-school hours, M.J. sent K.E.
the online messages that prompted K.E. to complain to Hill that M.J. had made
threats and offensive remarks to her via Facebook. Based on K.E.’s
allegations, Hill requested access to M.J.’s Facebook account and then read the
messages between M.J. and K.E. Although the plaintiffs contest the
characterization of M.J.’s messages as threatening, the plaintiffs have cited to
no record evidence to contradict the summary-judgment evidence presented by
defendants reflecting that Hill was informed that M.J. had threatened and
cursed at K.E. on the return school-bus ride from WLBT. Nor have plaintiffs
offered evidence contradicting the fact that Hill was informed by K.E. that M.J.
had continued making these threatening remarks related to cheer squad
activities on Facebook. In light of these unique facts and the dearth of
pertinent case law, we conclude that school officials acting in 2007 did not have
fair warning that they could not, consistent with the Fourth Amendment,
access a student’s social-networking account upon receiving information that
the student had sent threatening online messages to another student, where
those remarks concerned school activities and where the quarrel began at a
school-related function. See Porter v. Ascension Parish Sch. Bd., 393 F.3d 608,
618 (5th Cir. 2004) (“Qualified immunity should be recognized if officials of
reasonable competence could disagree on whether a particular action is
unlawful.”) (internal quotation marks omitted). In other words, whether or not
12
Case: 13-60631 Document: 00513193221 Page: 13 Date Filed: 09/15/2015
No. 13-60631
the individual defendants’ conduct here violated M.J.’s right to privacy, that
Fourth Amendment right nevertheless was not “clearly established” in these
unique factual circumstances at the time defendants acted. See al-Kidd, 131
S. Ct. at 2083 (observing that a constitutional right is “clearly established”
when “existing precedent . . . [has] placed the . . . constitutional question
beyond debate”). Accordingly, while we express no opinion regarding whether
the individual defendants’ conduct violated the Fourth Amendment, we
conclude that the defendants are nevertheless entitled to qualified immunity
with respect to M.J.’s constitutional privacy claim because the right asserted
by plaintiffs was not “clearly established” as of September 2007 in light of the
particular facts of this case. See, e.g., Redding, 557 U.S. at 368. The district
court therefore erred in denying the defendants qualified immunity with
respect to this claim.
B.
The defendants further contend that the district court erred in denying
them qualified immunity with respect to M.J.’s First Amendment free-speech
claim. In evaluating whether the defendants’ conduct violated M.J.’s “clearly
established” First Amendment rights, we will take “as given” M.J.’s contention
that she was punished for the content of her online messages by, inter alia,
being suspended from the cheer squad for the balance of the school year. See
Johnson, 515 U.S. at 319.
It is axiomatic that “the First Amendment prohibits not only direct
limitations on speech but also adverse government action against an individual
because of her exercise of First Amendment freedoms.” Colson v. Grohman,
174 F.3d 498, 508 (5th Cir. 1999). Further, it can hardly be disputed that
Internet speech was protected by the First Amendment at the time the events
in this case occurred. See, e.g., Ashcroft v. ACLU, 542 U.S. 656, 672–73 (2004);
Reno v. ACLU, 521 U.S. 844, 868–69 (1997). It has likewise long been
13
Case: 13-60631 Document: 00513193221 Page: 14 Date Filed: 09/15/2015
No. 13-60631
established that students do not “shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
However, while these general First Amendment principles were firmly
established in 2007, this is not dispositive of our inquiry into whether M.J.’s
First Amendment rights were “clearly established” at the time of defendants’
conduct given the unique facts of this case. See, e.g., Kinney v. Weaver, 367
F.3d 337, 350 (5th Cir. 2004). Rather, consistent with our preceding Fourth
Amendment analysis, we also must determine whether or not it “would be
clear” to a reasonable school official in the defendants’ position that punishing
M.J. for the content of her Facebook messages would violate the First
Amendment given the particular circumstances here. See Porter, 393 F.3d at
620 (granting qualified immunity to school official on plaintiff’s First
Amendment claim where it would not “be clear to a reasonable [school] official
that sanctioning [plaintiff] based on the content of his [speech] was unlawful
under the circumstances”). We agree with defendants that the answer is no.
At the time of the events in question, insufficient precedent existed to
provide school officials with “fair warning” that the defendants’ conduct
violated the First Amendment. See Bush v. Strain, 513 F.3d 492, 501–02 (5th
Cir. 2008) (observing that the “central concept” of qualified immunity is that
of “fair warning”). Indeed, less than three years prior to the defendants’
conduct in the instant case, our own court observed that First Amendment case
law did not provide “clear guidance” and had sent “inconsistent signals” with
regard to “how far school authority to regulate student speech reaches beyond
the confines of the campus.” Porter, 393 F.3d at 620. Further, while the speech
at issue in Porter occurred entirely outside the school environment, 10 the off-
10The drawing at issue in Porter “was composed off-campus, displayed only to
members of [the student’s] own household, stored off-campus, and not purposely taken by
14
Case: 13-60631 Document: 00513193221 Page: 15 Date Filed: 09/15/2015
No. 13-60631
campus speech at issue here arose during and in the course of school-related
activities and was a continuation of a quarrel that began on the bus ride home
from a school-related event. Moreover, unlike in Porter, the undisputed
summary-judgment evidence shows that M.J. was not suspended from school
on the basis of her speech but rather suspended from her participation on the
cheer squad. Our careful review of relevant case law has uncovered no
intervening precedent between Porter and the underlying events here that
would provide “every reasonable [school] official” with sufficient notice that the
defendants’ actions violated the First Amendment. See Al-Kidd, 131 S. Ct. at
2083. Thus, while we express no opinion as to whether the defendants’ conduct
conflicted with the First Amendment, we nevertheless conclude that the
district court erred in denying the defendants qualified immunity on M.J.’s
free-speech claim given the unique factual circumstances of this case.
IV.
For these reasons, the district court’s order denying qualified immunity
is REVERSED. The case is therefore REMANDED for proceedings consistent
with this opinion.
him to [school] or publicized in a way certain to result in its appearance at [school].” 393 F.3d
at 620.
15