Oliver v. Champion ( 2021 )

Case: 20-20438 Document: 00516069346 Page: 1 Date Filed: 10/26/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 26, 2021
No. 20-20438 Lyle W. Cayce
Clerk
Mari Leigh Oliver,
Plaintiff—Appellant,
versus
Bret Champion; Brian Greeney; Thomas Hensley;
Kimberley Walters; Lance Alexander; Stephen
Naetzker; Jennifer Walton; Klein Independent School
District; Angie Richard,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-3234
Before Smith, Stewart, and Willett, Circuit Judges.
Per Curiam:*
The Texas Education Code mandates that school districts “require
students, once during each school day,” to recite the “pledge of allegiance to
the United States.” Tex. Educ. Code § 25.082(b)(1). The Code contains
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-20438 Document: 00516069346 Page: 2 Date Filed: 10/26/2021
No. 20-20438
a parental opt-out provision whereby parents or guardians, upon “written
request,” may excuse their children from reciting the pledge. Id. § 25.082(c).
The Klein Independent School District has adopted a district-wide policy
that tracks the state’s pledge mandate.
Mari Oliver attended a high school within Klein ISD. She has sued
teachers, administrators, and Klein ISD under 42 U.S.C. § 1983, claiming
they all violated her First Amendment right against compelled speech by
requiring her to recite the pledge. 1 Importantly, Oliver admits that her claim
is not predicated on a contention that the pledge mandate, itself, is
unconstitutional. 2 Rather, Oliver’s claim is predicated on her contention that
her mother complied with the parental opt-out provision—something the
parties vigorously dispute. We express no opinion on that dispute.
Nonetheless, we AFFIRM summary judgment for Defendants.
We review summary judgment de novo. S. ex rel. E.H.F. v. Garza, 912
F.3d 778, 783 (5th Cir. 2019). We will reverse only if a genuine dispute of
material fact exists or if the nonmovant was not entitled to judgment as a
matter of law. Id. A material-fact dispute is “genuine” only “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
1
On appeal, Oliver adequately briefs only her compelled-speech claim—that the
Defendants violated her right “to not participate in the pledge.” Though her complaint
alleged other claims as well, Federal Rule of Appellate Procedure 28 requires appellants to
provide “reasons,” with “citations to the authorities and parts of the record” supporting
them, that warrant reversal. Fed. R. App. P. 28(a)(8)(A). Only Oliver’s compelled-
speech claim meets Rule 28’s standard. Therefore, Oliver has waived appellate review of
any other claims against the Defendants. Trevino v. Johnson, 168 F.3d 173, 181 n.3 (5th Cir.
1999) (holding “undeveloped,” “inadequately argued” issues waived on appeal).
2
Because Oliver does not challenge the pledge mandate’s constitutionality, we
must presume its constitutionality. See McDonald v. Bd. of Election Comm’rs, 394 U.S. 802,
809 (1969) (“Legislatures are presumed to have acted constitutionally . . . .”).
2
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No. 20-20438
Despite Oliver’s belief otherwise, a reasonable jury could not return a
verdict in her favor. Even if her mother complied with the parental opt-out
provision, the record demonstrates that none of the Defendants ever
compelled Oliver to recite the pledge. Cf. Tex. Educ. Code § 25.082(b)–
(c) (excusing a student from reciting the pledge upon written request of a
parent). Since Oliver “has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof,”
Defendants were entitled to summary judgment. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
AFFIRMED.
3