Aleashia Clarkston v. John White ( 2019 )


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  •     Case: 18-31099   Document: 00515222270     Page: 1   Date Filed: 12/04/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 18-31099             December 4, 2019
    Lyle W. Cayce
    Clerk
    ALEASHIA CLARKSTON;
    KINGDOM BUILDERS COMMUNITY DEVELOPMENT CORPORATION,
    Plaintiffs–Appellants,
    versus
    JOHN WHITE, In His Individual Capacity as
    Superintendent of the Louisiana Department of Education,
    Defendant–Appellee.
    Appeal from the United States District Court
    for the Middle District of Louisiana
    ON PETITION FOR REHEARING EN BANC
    Before OWEN, Chief Judge, SMITH and DENNIS, Circuit Judges.
    PER CURIAM:
    Treating the petition for rehearing en banc as a petition for panel
    rehearing, the petition for panel rehearing is DENIED. No member of the
    panel or judge in regular active service having requested that the court be
    poled on rehearing en banc (Federal Rule of Appellate Procedure 35 and Fifth
    Circuit Rule 35), the petition for rehearing en banc is DENIED.
    Case: 18-31099       Document: 00515222270          Page: 2     Date Filed: 12/04/2019
    No. 18-31099
    The opinion issued October 25, 2019, is VACATED, and the following
    opinion is substituted, the only change being to add language to footnote 5:
    * * * * *
    Before OWEN, Chief Judge, SMITH and DENNIS, Circuit Judges.
    JERRY E. SMITH, Circuit Judge:
    Kingdom Builders Community Development Corporation (“Kingdom
    Builders”) and its CEO, Aleashia Clarkston, sued John White, the Superin-
    tendent of the Louisiana Department of Education (“LDOE”), alleging that
    White caused the denial of Kingdom Builders’s charter school application in
    retaliation for Clarkston’s expressing her views on disciplinary practices—
    including corporal punishment—on the nationally televised show America’s
    Supernanny. Plaintiffs sought damages via a 42 U.S.C. § 1983 claim for First
    Amendment retaliation and a state retaliation claim per article I, section 7 of
    the Louisiana Constitution. The district court held that Clarkston had “failed
    to state a valid claim for retaliation.” We affirm on a different ground.
    I.
    In June 2015, Kingdom Builders submitted a charter school application
    to the Lafayette Parish School Board, which the board denied.                       Plaintiffs
    appealed to the Louisiana Board of Elementary and Secondary Education
    (“BESE”). 1 In connection with that appeal, the LDOE and SchoolWorks, a
    third-party evaluator contracted by the LDOE, evaluated plaintiffs’
    1 Under Louisiana law, a charter school must first submit its application to the local
    school board. LA. STAT. ANN. § 17:3983(A)(2)(a)(i). If the application is denied, the chartering
    group may appeal to the BESE. See 
    id. 2 Case:
    18-31099       Document: 00515222270         Page: 3    Date Filed: 12/04/2019
    No. 18-31099
    application. SchoolWorks recommended that the BESE approve the applica-
    tion, but the LDOE—through White—recommended that the BESE deny it. 2
    Following the conflicting reports, the BESE deferred ruling on the appeal
    and directed White to hire a third party to review his concerns with Clarkston’s
    application. White contracted with Transcendent Legal to conduct that review.
    Transcendent Legal’s report focused on “concerns specifically pertain[ing] to
    whether or not the proposed school leader [(Clarkston)] possesse[d] the pro-
    fessional judgment necessary to open and lead a high-performing charter
    school.” Among those concerns was Clarkston’s appearance on the television
    show America’s Supernanny, which “caused the [LDOE] to question her pro-
    fessional judgment in choosing to air her family’s disciplinary practices,”
    including the use of corporal punishment, “on national television while repre-
    senting herself as an educator.”
    Applying six norms used by the National Policy Board for Educational
    Administration, 3 Transcendent Legal examined Clarkston’s professionalism.
    It concluded that she exceeded expectations for one of the professional norms,
    met expectations for two, and failed to meet expectations for three. Transcen-
    dent Legal recognized that “[w]ithout question, Mrs. Clarkston’s deficiencies
    2 As Superintendent, White is responsible for “[m]ak[ing] recommendations on con-
    tracts and agreements to be entered into by the board.” 
    Id. § 17:22(2)(b).
    The BESE—not
    the LDOE—has the authority under state law to approve or deny a charter school application.
    
    Id. § 17:3983(A)(3)(c).
           3 The standards asked whether Clarkston: (1) “act[ed] professionally in personal con-
    duct, relationships with others, decision-making, stewardship of the school’s resources, and
    all aspects of school leadership”; (2) “act[ed] according to and promote[d] the professional
    norms of integrity, fairness, transparency, trust, collaboration, perseverance, learning, and
    continuous improvement”; (3) “place[d] children at the center of education and accept[ed]
    responsibility for each student’s academic success and well-being”; (4) “safeguard[ed] and
    promote[d] the values of democracy, individual freedom and responsibility, equity, social
    justice, community, and diversity”; (5) “le[d] with interpersonal and communication skill,
    social-emotional insight, and understanding of all students’ and staff members’ backgrounds
    and cultures”; and (6) “promote[d] professional behavior among faculty and staff.”
    3
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    in any given norm resulted solely from Mrs. Clarkston’s decision to participate
    in the reality show Supernanny and/or the related publicizing of her participa-
    tion in that television show just three (3) short years ago.”
    In March 2016, after reviewing the evaluations of the School Board,
    SchoolWorks, and Transcendent Legal, the LDOE—through White—again
    recommended that the BESE deny plaintiffs’ application. Highlighting that
    Transcendent Legal’s “report provide[d] mixed conclusions regarding the pro-
    fessional judgment of the proposed school leader that neither disqualifies nor
    validates the Department’s concerns,” the LDOE emphasized that its “concerns
    serve not as definitive character statements, but rather as potential evidence
    of issues that should give BESE pause before authorizing the charter under
    the proposed leadership.”
    After hearing from the LDOE, the BESE denied plaintiffs’ application.
    Both sides now agree that the BESE was the ultimate decisionmaker.
    Plaintiffs brought claims for retaliation, alleging violations of the First
    and Fourteenth Amendments and article I, section 7 of the Louisiana Consti-
    tution. 4 Plaintiffs contended that White took “action against the Plaintiffs
    because he disagreed with opinions expressed by Mrs. Clarkston on a national
    television show, ‘America’s Supernanny,’ in 2013 regarding corporal punish-
    ment of her own children.” They also contended that “White’s opinion and
    4  Article I, section 7 provides that “[n]o law shall curtail or restrain the freedom of
    speech or of the press. Every person may speak, write, and publish his sentiments on any
    subject, but is responsible for abuse of that freedom.” LA. CONST. art. I, § 7. “Louisiana’s
    constitutional protection of free speech mirrors that of the First Amendment,” Heaney v.
    Roberts, 
    846 F.3d 795
    , 801 n.2 (5th Cir. 2017), and “the Louisiana Supreme Court would
    recognize the same [QI] defense for claims under Article I, Section 7, that federal courts
    recognize for § 1983 First Amendment claims,” 
    id. Therefore, if
    “summary judgment is proper
    as to Plaintiffs’ First Amendment claims, summary judgment is also proper on Plaintiffs’
    Article I, § 7 state law claims.” Cripps v. La. Dep’t of Agric. & Forestry, 
    819 F.3d 221
    , 231
    (5th Cir. 2016). Accordingly, the two claims are analyzed as a single issue.
    4
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    recommendation to the [BESE] was a motivating factor in the Board’s decision
    to deny Kingdom Builders’ charter school application.”
    White moved for summary judgment, asserting, inter alia, the defense of
    qualified immunity (“QI”). The district court granted the motion and dismissed
    plaintiffs’ claims with prejudice, finding that they had failed to state a valid
    retaliation claim.
    II.
    We affirm on a basis different from the one relied on by the district court.
    White is entitled to QI because, at the time of his alleged violation, it was not
    clearly established that First Amendment liability could attach to a public offi-
    cial who did not possess final decisionmaking authority. The district court did
    not reach the QI inquiry, but this court may affirm for any reason supported
    by the record, even if not relied on by the district court. Palmer v. Waxahachie
    Indep. Sch. Dist., 
    579 F.3d 502
    , 506 (5th Cir. 2009).
    A.
    Government officials “are entitled to [QI] under § 1983 unless (1) they
    violated a federal statutory or constitutional right, and (2) the unlawfulness of
    their conduct was clearly established at the time.” District of Columbia v.
    Wesby, 
    138 S. Ct. 577
    , 589 (2018) (internal quotation marks omitted). Courts
    are “permitted to exercise their sound discretion in deciding which of the two
    prongs of the [QI] analysis should be addressed first in light of the circum-
    stances in the particular case at hand.” Pearson v. Callahan, 
    555 U.S. 223
    ,
    236 (2009).
    The plaintiff has the burden to point out the clearly established law.
    Delaughter v. Woodall, 
    909 F.3d 130
    , 139 (5th Cir. 2018). “Clearly established
    law is determined by controlling authority—or a robust consensus of
    5
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    persuasive authority—that defines the contours of the right in question with a
    high degree of particularity.” 
    Id. (internal quotation
    marks omitted). “This
    means the contours of the right must be sufficiently clear that a reasonable
    official would understand that what he is doing violates that right, although it
    is not necessary for controlling precedent to have held that the official’s exact
    act was unlawful.”          
    Id. at 139–40
    (internal quotation marks omitted).
    Ultimately, “[t]he central concern is whether the official has fair warning that
    his conduct violates a constitutional right.” 
    Id. at 140.
    B.
    We conclude, at the second prong, that the right at issue was not clearly
    established, so White is entitled to QI. It thus is unnecessary for us to reach
    the more complicated issue of whether a rights violation occurred at the first
    prong. See 
    Callahan, 555 U.S. at 236
    .
    At the time White allegedly violated plaintiffs’ rights—March 2016, at
    the latest—this court’s jurisprudence was ambiguous regarding whether First
    Amendment liability could attach to a public official who did not possess final
    decisionmaking authority. 5 Because White was not a final decisionmaker, it
    was not clearly established that he could be liable for his recommendation to
    the BESE. Accordingly, he is entitled to QI.
    AFFIRMED.
    5 See, e.g., Sims v. City of Madisonville, 
    894 F.3d 632
    , 641 (5th Cir. 2018) (per curiam)
    (holding that caselaw had not clearly established “whether First Amendment liability can
    attach to a public official who did not make the final employment decision”); Pennypacker v.
    City of Pearl, 689 F. App’x 332, 332 (5th Cir. 2017) (per curiam) (“It is not clearly established
    in this circuit whether [non-final decisionmakers] may be held personally liable for First
    Amendment retaliation under § 1983.”). To be sure, after Sims, the law is ‘no longer . . .
    ‘unsettled’ in this area,” and we know that “individual liability for a government official who
    violates constitutional rights, including First Amendment rights, turns on traditional tort
    principles of ‘but-for’ causation.” 
    Sims, 894 F.3d at 639
    , 641. But the QI question here turns
    on whether the law was clearly established.
    6
    

Document Info

Docket Number: 18-31099

Filed Date: 12/4/2019

Precedential Status: Precedential

Modified Date: 12/4/2019