Morgan v. Swanson

Case: 09-40373 Document: 00511615560 Page: 1 Date Filed: 09/27/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 27, 2011
No. 09-40373 Lyle W. Cayce
Clerk
DOUG MORGAN, et al.,
Plaintiffs-Appellees
v.
LYNN SWANSON, et al.,
Defendants-Appellants
Appeal from the United States District Court
for the Eastern District of Texas
Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA,
DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN,
ELROD, SOUTHWICK, and HAYNES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
This is a qualified immunity appeal that asks us to decide whether
defendant school principals violated clearly established law when they restricted
elementary students from distributing written religious materials while at
school. Answering this question requires recourse to a complicated body of law
that seeks, often clumsily, to balance a number of competing First Amendment
imperatives. This body of law failed to place the constitutionality of the
defendants’ conduct beyond debate, so they are entitled to qualified immunity.
Parts I through IV of this opinion, together with the separate concurrences of
Case: 09-40373 Document: 00511615560 Page: 2 Date Filed: 09/27/2011
No. 09-40373
Chief Judge Jones, Judge King, Judge Garza, Judge Owen and Judge Dennis,
reflect the views of the majority of the en banc Court granting qualified
immunity to the principals and the judgment reversing the district court.1
Although the law was not clearly established, a separate majority of the
Court holds that the principals’ actions—as alleged in the complaint—were
unconstitutional. Parts III A, C, and D of Judge Elrod’s opinion represent the
opinion of the court on these issues, with special concurrences by both Judge
Prado and Judge Owen.
I
The plaintiffs in this case are four former elementary-school students in
the Plano Independent School District (PISD), along with their parents. The
plaintiffs are evangelical Christians, which is to say, in their own words, that
their faith “strongly emphasizes the personal nature of personal evangelism and
dissemination of religious viewpoint material.” They explain that their religious
training and beliefs require them to “communicate religious viewpoint ideas to
their peers, classmates, and other students,” so as to “introduce . . .
classmates . . . to the truth of the Christian Faith.” These students and their
families have sued PISD because school officials have, at various times and in
various ways, prevented them from evangelizing while at school. More
specifically, the linchpin of the plaintiffs’ claims is that they have been
prohibited from distributing written religious materials while at school.
1
Parts I through IV of this opinion, granting immunity to the defendants because the
law was not clearly established, are joined by Judges King, Davis, and Stewart. Judge Dennis
also joins these Parts in full, except for one point of law in Part IV(A), as discussed in his
special concurrence. Judge Owen joins only Parts II through IV.
Part V of this opinion addresses the constitutionality of the principals’ conduct, as
alleged in the complaint. Parts V(A) through (C) conclude that one of the incidents involving
Principal Bomchill was unconstitutional, while Part V(D) concludes that the Court should not
reach the underlying constitutional question as to the remaining incidents. Judges King,
Davis, Garza, Stewart, and Dennis would not address the constitutionality of the conduct of
either principal and join only in Part V(D).
2
Case: 09-40373 Document: 00511615560 Page: 3 Date Filed: 09/27/2011
No. 09-40373
Before us today are two individual defendants’ motions to dismiss for
qualified immunity.2 Jonathan Morgan and Stephanie Versher (with their
parents) bring damages claims against, respectively, Lynn Swanson, principal
of Thomas Elementary School, and Jackie Bomchill, former principal of Rasor
Elementary School.3 The district court denied Swanson and Bomchill’s joint
motion to dismiss for qualified immunity. The principals appealed, and a panel
of this Court affirmed.4 The principals petitioned for rehearing en banc, and we
granted their motion.5
A
Plaintiff Jonathan Morgan alleges that Principal Swanson violated his
First Amendment rights in connection with a so-called “winter-break” party at
Thomas Elementary in December of 2003. The winter-break parties were
conducted yearly at Thomas Elementary in individual classrooms for attendance
by all students. The parties were conducted pursuant to written “guidelines and
2
The case now before us represents a relatively small part of the plaintiffs’ larger suit.
The complaint mounts facial and as-applied challenges to several versions of PISD’s student-
speech policy, along with claims against six school officials in their official and individual
capacities. These various claims are proceeding in pieces. We have already considered and
rejected a facial challenge to one version of PISD’s student-speech policy. See Morgan v. Plano
Indep. Sch. Dist. (Morgan I), 589 F.3d 740 (5th Cir. 2009). The as-applied challenge to the
school policy and the official-capacity claims will proceed on their own timetable. In other
words, this is not our first word on the issues in this case, and it will likely not be our last.
3
A third student, Michaela Wade, also asserts claims against Swanson. However, the
complaint plainly indicates that “[t]he Wade Plaintiffs do not seek damages”; their allegations
are offered only in support of the plaintiffs’ claims for equitable relief. This is an appeal from
a denial of qualified-immunity, which is an immunity from claims for damages only. See, e.g.,
Williams v. Ballard, 466 F.3d 330, 334 (5th Cir. 2006) (citing Orellana v. Kyle, 65 F.3d 29, 33
(5th Cir. 1995)). Like the district court below, we do not consider the Wade incident in
determining Swanson’s entitlement to immunity.
4
Morgan v. Swanson, 627 F.3d 170, vacated and reh’g granted, 628 F.3d 705 (5th Cir.
2010) (en banc).
5
Morgan, 628 F.3d at 705.
3
Case: 09-40373 Document: 00511615560 Page: 4 Date Filed: 09/27/2011
No. 09-40373
regulations”6 and were planned and supervised by volunteer room parents and
individual classroom teachers. Although the parties were conducted in
individual classrooms, they were governed across each grade level by strict,
specific guidelines.
Third-grader Jonathan Morgan wished to distribute a gift to his
classmates at the 2003 winter-break party, as he alleges was common practice
at his school. Students typically brought gifts for their classmates to the winter-
break parties in gift bags, or “goody bags.” Morgan’s proposed gift was a “candy
cane ink pen,” attached to a laminated bookmark containing a written message,
“The Legend of the Candy Cane”:
A candy maker wanted to invent a candy that was a witness
to Christ.
First of all, he used a hard candy because Christ is the Rock
of Ages. This hard candy was shaped so that it would resemble a “J”
for Jesus, or, turned upside down, a shepherd’s staff. He made it
white to represent the purity of Jesus.
Finally, a red stripe was added to represent the blood Christ
shed for the sins of the world, and three thinner red stripes he
received on our behalf when the Roman soldiers whipped him.
Sometimes a green stripe is added as a reminder that Jesus is a gift
from God.
The flavor of the cane is peppermint, which is similar to
hyssop. Hyssop is in the mint family and was used in the Old
Testament for purification and sacrifice. Jesus is the pure lamb of
God, come to be a sacrifice for the sins of the world.
So, every time you see a candy cane, remember the message
of the candy maker: Jesus is the Christ!
6
The plaintiffs attached to their complaint the guidelines for the winter-break parties,
so we may consider them at this stage. We have previously held that, in considering a Rule
12(b)(6) motion, we look at both “the facts stated in the complaint and the documents either
attached to or incorporated in the complaint.” Lovelace v. Software Spectrum Inc., 78 F.3d
1015, 1017 (5th Cir. 1996).
4
Case: 09-40373 Document: 00511615560 Page: 5 Date Filed: 09/27/2011
No. 09-40373
Morgan intended to distribute these “Legend of the Candy Cane” pens inside his
gift bags, which would be inscribed, “TO: [Classmate’s name], FROM: Jonathan
Morgan.”7
Morgan’s parents suspected, based on conversations with other parents,
that school officials would not allow Jonathan to distribute the “Legend of the
Candy Cane” in the classroom. Thus, they arranged a meeting with Principal
Swanson on December 4, 2003.8 Principal Swanson confirmed at the meeting
that Jonathan would not be allowed to distribute “The Legend of the Candy
Cane” at the winter-break party. She offered that he could distribute a goody
bag at the party containing nonreligious items, and that he would be permitted
to distribute “The Legend of the Candy Cane” at a table in the school library.
This offer failed to mollify the Morgans, who never attempted to avail
themselves of the “library information table” option. Instead, they consulted
their attorney, who sent a demand to Swanson on December 17, 2003, informing
her that it was unconstitutional to exclude religious gifts from the classroom
parties. Counsel further opined that any Establishment Clause concerns arising
from the distribution of religious materials in elementary schools were
unfounded. The Morgans demanded that Jonathan “and other students” be
7
Jonathan Morgan is not the first student to file a federal lawsuit over an attempt to
distribute some version of “The Legend of the Candy Cane.” See, e.g., Curry ex rel. Curry v.
Hensiner, 513 F.3d 570 (6th Cir. 2008); Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271(3d Cir. 2003); Westfield High Sch. L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98 (D.
Mass. 2003).
8
At the meeting, they aired a laundry-list of complaints about PISD’s treatment of
student religious speech. They were unhappy, for instance, that a teacher had instructed their
son to write “Happy Holidays” (rather than “Merry Christmas”) on a seasonal card for a local
senior citizen, prepared as part of a school activity. The Morgans were also offended by
Thomas Elementary’s characterization of the end-of-semester parties as “winter-break” parties
because it is their belief that “Christians do not celebrate ‘winter break’ parties.” However,
the Morgans do not seek damages arising from these incidents, which the complaint does not
attribute to Swanson.
5
Case: 09-40373 Document: 00511615560 Page: 6 Date Filed: 09/27/2011
No. 09-40373
allowed to distribute religious gifts at the classroom parties, lest they seek
redress in federal court.
The next day, December 18, 2003, counsel for the school district
responded.9 The district denied the Morgans’ allegations that only religious gifts
would be forbidden at the winter-break parties, citing PISD’s policy FNAA
(LOCAL), which prohibited distribution of “any written material, tapes, or other
media over which the school does not exercise control and that is intended for
distribution to students” without prior approval from the school. The day before,
Carole Griesdorf, another PISD administrator, had given a similar explanation
in an e-mail to the Morgans, noting that “[s]tudents may not hand out anything
to their classmates in class in bags or separately.” The district also reiterated
Swanson’s offer for Jonathan to distribute his materials in the school library.
Although the district’s official position was that no outside materials were
to be circulated in the classrooms, it maintained that it would be within its
rights to specifically restrict distribution of religious messages in the
classroom.10 Counsel pointed the Morgans to the Third Circuit’s decision in Walz
9
This letter was attached to the plaintiff’s original complaint. The plaintiffs
subsequently amended their complaint, failing then to attach the letter. This appears to have
been an act of inadvertence. Like the original complaint, second amended complaint—the live
complaint in this action— incorporates and discusses the letter, referring to it as “Exhibit 7.”
However, Exhibit 7 is missing from the live complaint, which skips from Exhibit 6 to Exhibit
8. We can only assume that this was a good-faith accidental omission on the part of the
plaintiffs, who have extensively characterized the letter in their complaint. Even if it were
not, it would be proper for us to consider the letter because the complaint incorporates it by
reference. See Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011)
(noting that “a court ruling on a 12(b)(6) motion may rely on the complaint,” along with
“‘documents incorporated into the complaint by reference’” (quoting Dorsey v. Portfolio
Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).
10
Specifically, the district’s letter said:
The holiday party at issue is a classroom activity that has a clearly defined
curricular purpose to teach social skills and respect for others in a festive
setting. This activity is highly structured, supervised, and regulated. Thus, it
is well within the school’s ambit of authority to prevent the distribution of
candy canes or other media by Jonathan at the holiday party. Moreover, the
6
Case: 09-40373 Document: 00511615560 Page: 7 Date Filed: 09/27/2011
No. 09-40373
v. Egg Harbor Township Board of Education,11 in which that court upheld a
school’s restriction on a student seeking to distribute a written message—almost
verbatim with “The Legend of the Candy Cane”—at a classroom winter holiday
party.
Despite having been told that Jonathan would not be allowed to distribute
“The Legend of the Candy Cane” at the party, the Morgans nevertheless brought
the items to the classroom the day of the party. They confronted Principal
Swanson, who again offered that the Morgans could leave the gifts in the library
for his classmates to pick up. The Morgans complained that they had observed
other students bringing their goody bags into the classroom. In response,
Principal Swanson returned to her office and broadcast an announcement to the
entire school: students were not permitted to bring outside materials into the
classroom for distribution.
The Morgans were unsatisfied with Swanson’s “no materials” loudspeaker
announcement because Swanson failed to return to Jonathan’s classroom and
personally require the other students to remove their goody bags. After the
announcement, they confronted Swanson again, this time complaining that
Jonathan’s teacher, Mrs. Helmke, had given a different explanation for why he
would not be allowed to distribute “The Legend of the Candy Cane”—its religious
viewpoint. The Morgans complain that Swanson failed to “correct” or “apologize
for” Mrs. Helmke’s actions, or to “state that Mrs. Helmke acted contrary to PISD
policy and custom” or take “corrective measures” against her. In the end,
school’s offer to allow Jonathan to hand out his materials after class or at the
designated area for distribution is more than a reasonable accommodation, and
eliminates any First Amendment concerns. As you well know, the Third Circuit
has recently re-affirmed, under almost identical facts to those present here, that
a school’s restrictions on an elementary school student’s distribution of candy
canes and pencils containing a religious message during a classroom holiday
party did not violate the First Amendment.
11
342 F.3d 271 (3d Cir. 2003).
7
Case: 09-40373 Document: 00511615560 Page: 8 Date Filed: 09/27/2011
No. 09-40373
although district officials offered a viewpoint-neutral explanation, the Morgans
allege that Jonathan was the only student forbidden from distributing his chosen
gift at the 2003 winter-break party.12
B
Plaintiff Stephanie Versher alleges that defendant Jackie Bomchill
violated her First Amendment rights by prohibiting her from distributing
written religious materials at Rasor Elementary School on three separate
occasions. All of these occurred in January of 2004, during Stephanie’s second-
grade year. In the first incident, Stephanie attempted to distribute to her
classmates tickets to a passion play—a “dramatic representation of the scenes
connected with the passion and crucifixion of Jesus”13—to be performed at a local
church. Like the other plaintiffs in this case, it is Stephanie’s sincere religious
belief that she “should share her beliefs with her friends,” apparently including
this representation of the “crucifixion of Jesus Christ.”
The complaint provides little detail regarding Stephanie’s distribution of
the passion-play tickets. It is unclear where she distributed them: we do not
know whether it was in the hallway, the classroom, the restroom, or the
playground. Nor is it clear when she distributed the tickets, beyond the
conclusory label that she distributed them “during non-curriculum times.” We
do not know whether Stephanie distributed the tickets during passing period
12
We note that the complaint fails to make clear the exact nature of Swanson’s
involvement in this speech restriction. The complaint stops short of alleging that Principal
Swanson personally allowed the other students to distribute their nonreligious gifts, even after
her viewpoint-neutral loudspeaker announcement. Thus, it is difficult to discern the Morgans’
precise theory of Swanson’s liability from the face of the complaint: whether they mean to
allege that she personally discriminated against Jonathan’s viewpoint, or whether they allege
some theory of supervisory liability. We need not resolve this problem with the plaintiffs’
pleading, though, because we hold that Swanson would be entitled to immunity even if she had
directly and personally restricted only the religious gifts.
13
MERRIAM-WEBSTER’S DICTIONARY, available at www.m-w.com.
8
Case: 09-40373 Document: 00511615560 Page: 9 Date Filed: 09/27/2011
No. 09-40373
between classes, in the classroom before the bell rang, or in the moments in
between her teacher’s lessons. It is also unclear how many tickets Stephanie
distributed. The complaint alleges that she approached other students to “talk
to [them] about the drama presentation depicting the crucifixion of Jesus Christ”
and “asked them whether or not they would like to attend.” But it fails to allege
how many of them accepted the tickets, nor whether she offered them to all
interested students. We also do not know how she chose which students to
approach, nor whether she approached them at times when they were free to
walk away and not listen to her thoughts on “the crucifixion of Jesus Christ”
before declining the tickets.
When defendant Jackie Bomchill, the principal of Stephanie’s school,
became aware that Stephanie was distributing these tickets, she instructed
Stephanie’s teacher to stop her from distributing them. She also asked
Stephanie’s teacher to collect the tickets from the students that had already
received them.
The second incident between Stephanie and Principal Bomchill occurred
later that same month, in conjunction with Stephanie’s “half-birthday” party.
PISD allows students to celebrate their birthdays or “half birthdays” (for
students born in the summer) at school with their classmates. These parties
occur during the school day, “primarily at the end of the lunch period or during
a snack break between instructional time.” The complaint notes that the school
allows students to bring a snack and a small gift to distribute to their
classmates. It does not indicate whether these parties typically occur in the
classroom, nor whether classmates’ attendance is optional or mandatory.
The day of Stephanie’s “half-birthday” party, her mother Sherrie Versher
brought brownies to share with Stephanie’s classmates, with two pencils
attached. One was inscribed with the word “Moon,” and the other read, “Jesus
loves me this I know for the Bible tells me so.” Sherrie Versher apparently was
9
Case: 09-40373 Document: 00511615560 Page: 10 Date Filed: 09/27/2011
No. 09-40373
concerned that Stephanie would not be allowed to distribute the “Jesus” pencils
because of their religious message, so she proceeded to Principal Bomchill’s
office. At their meeting, Bomchill informed Sherrie Versher that Stephanie
could distribute the brownies and the “Moon” pencil, but that she would not be
allowed to distribute the “Jesus” pencils. Versher then left Bomchill’s office to
call her attorney. It is not clear what advice Versher received, but when she
returned, she sought only to confirm that the reason the “Jesus” pencils were not
allowed was their religious message. Bomchill confirmed this and offered
Versher an alternative to distributing the “Jesus” pencils during the school day:
Stephanie would be allowed to distribute the pencils after school “outside of the
school building.”
During the time Versher was in Bomchill’s office, Versher was presented
with a letter from John Beasley, a campus security official, regarding the earlier
incident with the passion-play tickets. Campus security was apparently under
the mistaken impression that Sherrie Versher herself (rather than her daughter)
had distributed the tickets at Rasor Elementary. The letter informed Sherrie
Versher of the school’s policy forbidding distribution of materials by an outside
person without permission and indicated that “appropriate law enforcement
officials may be called when a person refuses to follow the procedures for
submitting materials and fails to leave the premises when asked.”
After the meeting in Bomchill’s office, the situation escalated into hostility.
As Sherrie Versher left the school offices, she “thought out loud to herself”:
“‘Satan is in the building.’” It is unclear to whom this “Satan” commentary was
directed, but after her “Satan” statement, she alleges that school officials
“stalked” her at various locations throughout the school building. Sherrie
proceeded to the school cafeteria, where her daughter Stephanie was eating
lunch. Sherrie informed her daughter that she would not be allowed to
distribute the “Jesus” pencils during school, but that Bomchill had agreed she
10
Case: 09-40373 Document: 00511615560 Page: 11 Date Filed: 09/27/2011
No. 09-40373
could distribute the pencils after school, “outside of the school building.” Sherrie
gave Stephanie the “Jesus” pencils and instructed her to put them in her
backpack until after school, at which time her friends “could meet her on the
school lawn to get those pencils.”
The third Versher–Bomchill incident occurred later that day, after school.
Stephanie Versher again attempted to distribute her “Jesus” pencils, this time
“outside of the school building on the school sidewalk and lawn.” The complaint
carefully alleges that Stephanie was standing “amongst a small group of her
classmates,” and that she was handing out the “Jesus” pencils only to classmates
that approached her and requested one. When Bomchill saw Stephanie
distributing the pencils after school, she approached her and told her she could
not distribute them “while on PISD school property,” and that if Stephanie tried
to distribute the crucifixion tickets or “Jesus” pencils again “while on school
property at any time, she would be ‘kicked out of the school.’” This touched off
a disagreement between Bomchill and Sherrie Versher, who was standing by
watching her daughter distribute the pencils. “Either Bomchill or Beasley then
accused Sherrie Versher of being ‘purposely defiant’” of earlier instructions that
Stephanie could only distribute her “Jesus” pencils “outside of the building and
‘across the street.’” Versher asserts that this accusation was false and
represents a retreat from Bomchill’s earlier position that Stephanie could
distribute the religious pencils so long as she was outside the school.
II
The action before us is an interlocutory appeal from the district court’s
denial of a motion to dismiss on qualified immunity. “[A]n order denying
qualified immunity, to the extent it turns on an ‘issue of law,’ is immediately
appealable.”14 Our jurisdiction in this context extends to interlocutory appeals
14
Behrens v. Pelletier, 516 U.S. 299, 311 (1996) (quoting Mitchell v. Forsyth, 472 U.S.
511, 530 (1985)).
11
Case: 09-40373 Document: 00511615560 Page: 12 Date Filed: 09/27/2011
No. 09-40373
taken from both denials of motions to dismiss and denials of motions for
summary judgment.15 We review de novo a district court’s refusal to dismiss on
the basis of qualified immunity.16 In so doing, we must accept all well-pleaded
facts as true and draw all reasonable inferences in favor of the nonmoving
party.17 However, we do not presume true a number of categories of statements,
including legal conclusions; mere “labels”; “[t]hreadbare recitals of the elements
of a cause of action”;“conclusory statements”; and “naked assertions devoid of
further factual enhancement.”18
III
The doctrine of qualified immunity protects government officials from civil
damages liability when their actions could reasonably have been believed to be
legal.19 This immunity protects “all but the plainly incompetent or those who
knowingly violate the law,”20 so we do not deny immunity unless “existing
precedent must have placed the statutory or constitutional question beyond
debate.”21 The basic steps of our qualified-immunity inquiry are well-known: a
plaintiff seeking to defeat qualified immunity must show: “(1) that the official
15
Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251 (5th Cir. 2005) (emphasis omitted)
(citing Behrens, 516 U.S. at 307).
16
Id. at 252 (citing Wilkerson v. Stalder, 329 F.3d 431, 434 (5th Cir. 2003)).
17
Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009); see also Woodard v.
Andrus, 419 F.3d 348, 351 (5th Cir. 2005) (“The complaint must be liberally construed, with
all reasonable inferences drawn in the light most favorable to the plaintiff.” (citing Sloan v.
Sharp, 157 F.3d 980, 982 (5th Cir. 1998)).
18
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
19
See id. (noting that qualified immunity’s shield applies “so long as an official’s actions
could reasonably have been thought consistent with the rights they are alleged to have
violated”).
20
Malley v. Briggs, 475 U.S. 335, 341 (1986)
21
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (emphasis added).
12
Case: 09-40373 Document: 00511615560 Page: 13 Date Filed: 09/27/2011
No. 09-40373
violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.”22
Courts have discretion to decide which prong of the qualified-immunity
analysis to address first.23 Here, because our resolution of this appeal turns
principally on our conclusion that the rights asserted by the plaintiffs were not
clearly established, we address step two of the qualified-immunity inquiry first.
IV
We hold today that the principals are entitled to qualified immunity
because clearly established law did not put the constitutionality of their actions
beyond debate. When educators encounter student religious speech in schools,
they must balance broad constitutional imperatives from three areas of First
Amendment jurisprudence: the Supreme Court’s school-speech precedents, the
general prohibition on viewpoint discrimination, and the murky waters of the
Establishment Clause. They must maintain the delicate constitutional balance
between students’ free-speech rights and the Establishment Clause imperative
to avoid endorsing religion. “The many cases and the large body of literature on
this set of issues” demonstrate a “lack of adequate guidance,”24 which is why no
federal court of appeals has ever denied qualified immunity to an educator in
this area. We decline the plaintiffs’ request to become the first.
A
Before discussing the substantive law in this case, we turn to first
principles to guide our determination of what it means for the law to be “clearly
22
Id. at 2080 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
23
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
24
Pounds v. Katy Indep. Sch. Dist., 730 F. Supp. 2d 636, 638 (S.D. Tex. 2010); see also
Nurre v. Whitehead, 580 F.3d 1087, 1090 (9th Cir. 2009) (“There exists a delicate balance
between protecting a student’s right to speak freely and necessary actions taken by school
administrators to avoid collision with the Establishment Clause.”).
13
Case: 09-40373 Document: 00511615560 Page: 14 Date Filed: 09/27/2011
No. 09-40373
established.” When considering a defendant’s entitlement to qualified immunity,
we must ask whether the law so clearly and unambiguously prohibited his
conduct that “every ‘reasonable official would understand that what he is doing
violates [the law].’”25 To answer that question in the affirmative, we must be
able to point to controlling authority—or a “robust ‘consensus of persuasive
authority’”26—that defines the contours of the right in question with a high
degree of particularity.
Where no controlling authority specifically prohibits a defendant’s conduct,
and when the federal circuit courts are split on the issue, the law cannot be said
to be clearly established.27 This is true even when the circuit split developed
after the events in question.28 As the Supreme Court explained, “if judges thus
disagree on a constitutional question, it is unfair to subject [government officials]
to money damages for picking the losing side of the controversy.”29
Further, the Supreme Court has held that generalizations and abstract
propositions are not capable of clearly establishing the law. The Supreme Court
recently—and forcefully—underscored this point in Ashcroft v. al-Kidd, where
it noted, with some exasperation, that it has “repeatedly told courts . . . not to
25
Al-Kidd, 131 S. Ct. at 2083 (emphasis added) (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)).
26
Id. at 2084 (citing Wilson v. Layne, 526 U.S. 603, 617 (1999)). In a situation where
no “directly controlling authority” prohibits the defendants’ conduct, we look to the law of
other jurisdictions “in assessing whether a reasonable [official] would have known . . . that his
conduct was unlawful.” McClendon v. City of Columbia, 305 F.3d 314, 329 (5th Cir. 2002) (en
banc) (discussing Wilson, 526 U.S. at 603).
27
Wilson, 526 U.S. at 617–18.
28
See id. (holding that qualified immunity was appropriate because “[b]etween the time
of the events of this case and today’s decision, a split among the Federal Circuits in fact
developed”).
29
Id. at 618.
14
Case: 09-40373 Document: 00511615560 Page: 15 Date Filed: 09/27/2011
No. 09-40373
define clearly established law at a high level of generality.”30 This rule is
eminently sensible, of course, as the Court has explained:
[T]he right to due process of law is quite clearly established by the
Due Process Clause, and thus there is a sense in which any action
that violates that Clause . . . violates a clearly established right. . . .
But if the test of “clearly established law” were to be applied at this
level of generality, it would bear no relationship to the “objective
legal reasonableness” that is the touchstone of [qualified
immunity].”31
Although the Supreme Court has repeatedly admonished courts not to
define clearly established law at a high level of generality, this does not mean
that “a case directly on point” is required.32 Rather, “existing precedent must
have placed the statutory or constitutional question beyond debate.”33 The sine
qua non of the clearly-established inquiry is “fair warning.”34 Thus, we must ask
“not only whether courts have recognized the existence of a particular
constitutional right, but also . . . whether that right has been defined with
sufficient clarity to enable a reasonable official to assess the lawfulness of his
conduct.”35
30
Id. (citations omitted); see also Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (holding
that the clearly-established inquiry “must be undertaken in light of the specific context of the
case, not as a broad general proposition”).
31
See Anderson, 483 U.S. at 639.
32
Al-Kidd, 131 S. Ct. at 2083.
33
Id. (emphasis added).
34
See Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[T]he salient question that the Court
of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair
warning that their alleged treatment of Hope was unconstitutional.”).
35
McClendon v. City of Columbia, 305 F.3d 314, 331 (5th Cir. 2002) (en banc)
(discussing Wilson, 526 U.S. at 614–15, and Anderson, 483 U.S. at 640).
15
Case: 09-40373 Document: 00511615560 Page: 16 Date Filed: 09/27/2011
No. 09-40373
The Supreme Court’s admonition in Al-Kidd that we should not “define
clearly established law at a high level of generality” sits in tension with its
earlier statement in Hope v. Pelzer that “general statements of the law are not
inherently incapable of giving fair and clear warning,” at least in a certain
category of “obvious” cases.36 In Hope, the Court noted that the general Eighth
Amendment prohibition against the unnecessary and wanton infliction of pain
“arguably” gave the defendants “fair warning” that it was unconstitutional to
strip a prisoner shirtless and chain him to a hitching post (a painful stress
position) for seven hours in the Alabama sun. But the Court’s suggestion that
generalizations can sometimes clearly establish the law was dicta; the Court did
not rest its qualified-immunity decision on such a broad statement. It relied
instead on binding circuit precedent prohibiting extremely similar conduct,
including “handcuffing inmates to the fence and to cells for long periods of
time.”37
The Al-Kidd Court, in admonishing lower courts “not to define clearly
established law at a high level of generality,” did not discuss or even cite Hope,
nor other earlier opinions reflecting a similar concern that a damages remedy be
available for “obvious” or flagrant constitutional violations.38 This silence is
36
Hope, 536 U.S. at 741 (quoting Anderson, 483 U.S. at 640) (emphasis added).
37
Id. at 742 (citing Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974)).
38
See United States v. Lanier, 520 U.S. 259, 268–69 (1997) (quoting Anderson, 483 U.S.
at 640) (rejecting the Sixth Circuit’s stringent specificity requirement for “fair warning”
purposes in a case involving a state-court judge who sexually assaulted several women in his
chambers). The Supreme Court has also favorably cited an oft-quoted Seventh Circuit opinion
reiterating the importance of providing for a remedy in the most obvious of cases:
The easiest cases don’t even arise. There has never been a section 1983
case accusing welfare officials of selling foster children into slavery; it
does not follow that if such a case arose, the officials would be immune
from damages liability because no previous case had found liability in
those circumstances.
K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (cited in Safford Unified Sch.
16
Case: 09-40373 Document: 00511615560 Page: 17 Date Filed: 09/27/2011
No. 09-40373
puzzling given that Al-Kidd reversed a Ninth Circuit decision denying immunity
in reliance on Hope.39 Adding to the perplexity is that, in its next major “clearly
established” opinion after Hope, the Supreme Court granted qualified immunity
because there were no cases that “squarely govern[ed].”40 That said, this case
does not call on us to decide whether the Court’s statements in Hope survive Al-
Kidd: the constitutional issue in this case is far from “beyond debate,” as
evidenced by a large body of oft-conflicting case law and the variety of opinion
among members of this Court. We leave for another day the question of whether
and when a constitutional violation may be so “obvious” that its illegality is clear
from only a generalized statement of law.
B
Because no specific and factually analogous precedent guides our
determination of this case, we look first to the Supreme Court’s general school-
speech precedents. In Tinker v. Des Moines Independent Community School
District, the Court famously held that students do not “shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate.”41 This
decision has been called the “high water mark” of student speech rights.42 But
Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2643 (2009)).
39
See Al-Kidd v. Ashcroft, 580 F.3d 949, 970 (9th Cir. 2009), rev’d, 131 S. Ct. 2074(2011) (quoting Hope, 536 U.S. at 739).
40
Brosseau, 543 U.S. at 201 (emphasis added). A leading treatise on federal jurisdiction
has noted an “obvious tension” between Hope, which “declar[ed] that there need not be a case
on point to overcome qualified immunity,” and Brosseau, which found “qualified immunity
based on the lack of a case on point.” ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 8.6, at
555 (5th ed. 2007).
41
393 U.S. 503, 506 (1969).
42
E.g., Rebecca Aviel, Compulsory Education and Substantive Due Process: Asserting
Student Rights to a Safe and Healthy School Facility, 10 LEWIS & CLARK L. REV. 201, 229
(2006); Kristi L. Bowman, Public School Students’ Religious Speech and Viewpoint
Discrimination, 110 W. VA. L. REV. 187, 201 (2007) (citation omitted).
17
Case: 09-40373 Document: 00511615560 Page: 18 Date Filed: 09/27/2011
No. 09-40373
with every subsequent student-speech decision, the Supreme Court has
“expanded the kinds of speech schools can regulate.”43 Indeed, the rights
announced in Tinker do not extend to several broad categories of student speech:
“lewd, indecent, or offensive” speech;44 school-sponsored speech;45 and speech
“that a reasonable observer would interpret as advocating illegal drug use.”46
This contraction of student speech rights in public schools has continued even
as the Supreme Court has broadened First Amendment rights in other contexts,
including in cases involving minors.47 Indeed, the Court has long recognized that
43
Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 507 (5th Cir.
2009). Indeed, this contraction of Tinker led Justice Thomas to lament that the Court has
failed to adequately explain “when [Tinker] operates and when it does not”:
we continue to distance ourselves from Tinker, but we neither overrule it nor
offer an explanation of when it operates and when it does not. I am afraid that
our jurisprudence now says that students have a right to speak in schools
except when they don’t—a standard continuously developed through litigation
against local schools and their administrators.
Morse v. Frederick, 551 U.S. 393, 418 (2007) (Thomas, J., concurring); see also Erwin
Chemerinsky, Teaching that Speech Matters: A Framework for Analyzing Speech Issues in
Schools, U.C. DAVIS L. REV. 825, 831 (2009) (“Tinker has never been expressly overruled, but
it has been tremendously undermined.”).
44
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).
45
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).
46
Morse v. Frederick, 551 U.S. 393, 422 (2007) (Alito, J., concurring). We have
identified Justice Alito’s concurrence as the controlling opinion in Morse. Ponce v. Socorro
Indep. Sch. Dist., 508 F.3d 765, 768 (5th Cir. 2007).
This Court also applies a different standard to student-speech restrictions that are
content-neutral. See Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 442–43 (2001) (applying
the O’Brien standard, which is “virtually the same” as the traditional time, place, and manner
analysis).
47
For instance, outside the school environment, the Court has recently invalidated a
California state ban on the sale of violent video games to minors. See Brown v. Entm’t Merch.
Ass’n, 131 S. Ct. 2729 (2011). This is just one example of a recent spate of cases articulating
robust First Amendment protections. See, e.g., Snyder v. Phelps, 131 S. Ct. 1207 (2011)
(shielding hateful speech at military funerals); United States v. Stevens, 130 S. Ct. 1577 (2010)
(protecting depictions of animal cruelty); Citizens United v. Fed. Election Comm’n, 130 S. Ct.
876 (2010) (holding that the government may not restrict political speech simply because the
speaker is a corporation).
18
Case: 09-40373 Document: 00511615560 Page: 19 Date Filed: 09/27/2011
No. 09-40373
“the constitutional rights of students in public school are not automatically
coextensive with the rights of adults” (or even children) “in other settings.”48 Put
differently, when minors speak in public schools, the Supreme Court has held
that what is good for the goose is not invariably good for the gander.49
We thus evaluate student speech claims “‘in light of the special
characteristics of the school environment,’”50 beginning by categorizing the
student speech at issue.51 This is not always an easy task. The speech
restrictions in this case are alleged to be viewpoint-specific, but not lewd or drug-
related, so we must decide whether to apply the general rule of Tinker or the
Hazelwood rule that applies to curricular or “school-sponsored” speech.52
Tinker addressed the question of when and “whether the First Amendment
requires a school to tolerate particular student speech” that “happens to occur on
48
Fraser, 478 U.S. at 682 (citing New Jersey v. T.L.O., 469 U.S. 325, 340–42 (1985)).
49
Compare, e.g., Morse, 551 U.S. at 401 (upholding a school’s restriction on a student’s
“BONG HiTS 4 JESUS” poster at a school event and noting that a student “cannot stand in
the midst of his fellow students, during school hours, at a school-sanctioned activity and claim
he is not at school”), with Cohen v. California, 403 U.S. 15, 16 (1971) (holding that defendant
had a First Amendment right to wear a jacket reading “Fuck the Draft” in a municipal
courthouse although there were “women and children present”).
50
Morse, 551 U.S. at 394 (quoting Tinker, 393 U.S. at 506).
51
See Morgan I, 589 F.3d at 745 & n.15 (identifying various categories of student
speech).
52
The plaintiffs also argue that we need not resolve the difficult issue of which
precedent to apply because they carefully pleaded that the speech in question was “non-
curricular” and thus not within Hazelwood’s reach. But whether speech is “school-sponsored”
or “curricular” under Hazelwood is a question of law for the Court, not a fact entitled to the
presumption of truth in a plaintiff’s pleading. See Hazelwood, 484 U.S. at 268 (treating
“school-sponsored” and “curricular” as questions for the court and then answering those
questions based on the specific facts before it); Campbell v. St. Tammany Parish Sch. Bd., 64
F.3d 184, 189–90 (5th Cir. 1995) (same); Peck v. Baldwinsville Cent., 426 F.3d 617 (same);
Walz, 342 F.3d at 279 (same); Bannon, 387 F.3d 1208 (same); Fleming, 298 F.3d at 931
(same); see also Iqbal, 129 S. Ct. at 1949 (detailing a number of categories of statements in a
plaintiff’s complaint that are not entitled to the presumption of truth).
19
Case: 09-40373 Document: 00511615560 Page: 20 Date Filed: 09/27/2011
No. 09-40373
the school premises.”53 School officials may only restrict such private, personal
expression to the extent it would “‘materially and substantially interfere with
the requirements of appropriate discipline in the operation of the school,’”54 or
“impinge upon the rights of other students.”55 Hazelwood, by contrast, addressed
a different question: the scope of “educators’ authority over school-sponsored
publications, theatrical productions, and other expressive activities that students,
parents, and members of the public might reasonably perceive to bear the
imprimatur of the school.”56 This is speech that occurs within the context of
“school-sponsored” activities, or activities that “may fairly be characterized as
part of the school curriculum.”57 “School-sponsored” activities are by no means
limited to the “traditional classroom setting, so long as they are supervised by
faculty members and designed to impart particular knowledge or skills.”58
Educators enjoy far greater latitude to regulate this latter category of expression
and do not offend the First Amendment “so long as their actions are reasonably
related to legitimate pedagogical concerns.”59
This case presents the difficult question of exactly when Hazelwood’s more
deferential standard applies. Neither the Supreme Court nor this Court has
explained whether Tinker or Hazelwood governs students’ dissemination of
written religious materials in public elementary schools, whether at official
parties, after school on the “lawn and sidewalk,” or at unspecified times and in
53
Hazelwood, 484 U.S. at 270–71.
54
Tinker, 393 U.S. at 509 (citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
55
Id.56
Hazelwood, 484 U.S. at 271 (emphasis added).
57
Id.58
Id.59
Id. at 273.
20
Case: 09-40373 Document: 00511615560 Page: 21 Date Filed: 09/27/2011
No. 09-40373
unspecified places during the school day. Nor do the facts of Tinker and
Hazelwood offer much guidance. The “private speech” at issue in Tinker was
the “silent, passive expression of opinion”60 of students who wordlessly wore
black armbands to school to protest the Vietnam War. Hazelwood involved
student-authored articles produced for the school newspaper as part of a class.
The critical inquiry in deciding whether speech is “school-sponsored” under
Hazelwood is whether it could reasonably be understood to bear the school’s
imprimatur, which is synonymous with “sanction,” or “approval.”61 Relevant
considerations include (1) where and when the speech occurred;62 (2) to whom
the speech was directed and whether recipients were a “captive audience”;63 (3)
whether the speech occurred during an event or activity organized by the school,
conducted pursuant to official guidelines, or supervised by school officials;64 and
60
Tinker, 393 U.S. at 508.
61
MERRIAM-WEBSTER’S DICTIONARY, available at www.m-w.com.
62
Fleming v. Jefferson Cnty. Sch. Dist., 298 F.3d 918, 925 (10th Cir. 2002) (“Expressive
activities that do not bear the imprimatur of the school could include a variety of activities
conducted by outside groups that take place on school facilities after-school, such as club
meetings.” (citing Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001)).
63
Id. (noting that imprimatur concerns may be heightened where students are a
“captive audience” (citing DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958,
968 (9th Cir. 1999)).
64
Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 279 (3d Cir. 2003) (holding that
school holiday parties were curricular activities because teachers planned the parties and the
parties were supervised and regulated by school); Bannon v. Sch. Dist. of Palm Beach Cnty.,
387 F.3d 1208, 1214–15 (11th Cir. 2004) (holding that murals made by students were
curricular in part because faculty members supervised the project); Fleming, 298 F.3d at930–31 (holding that tiles created by individual students as part of a school beautification
project bore the school’s imprimatur because the school was “significantly involved in the
creation, funding, supervision, and screening process of the tile project”); Peck v. Baldwinsville
Cent. Sch. Dist., 426 F.3d 617, 628–29 (2d Cir. 2005) (concluding that a student’s poster was
school-sponsored expression because the poster was prepared in response to a school
assignment and the school set parameters for posters in advance).
21
Case: 09-40373 Document: 00511615560 Page: 22 Date Filed: 09/27/2011
No. 09-40373
(4) whether the activities where the speech occurred were designed to impart
some knowledge or skills to the students.65
The plaintiffs urge a far narrower reading of Hazelwood, arguing that it
represents the slightest of exceptions to the broad speech rights articulated in
Tinker. But their view is out of step with a number of our sister circuits, which
have treated Hazelwood as creating a broad category of speech restrictions
entitled to deference from the federal courts.66 These courts have recognized
“how broadly the Supreme Court has defined school curricula for Hazelwood’s
purposes.”67 Most notable for this case are the Third and Seventh Circuit’s
applications of Hazelwood in the elementary-school context. In a case
remarkably similar to this one, the Third Circuit held that Hazelwood governed
holiday parties held in elementary-school classrooms.68 And the Seventh Circuit
held that the Hazelwood standard governed an elementary student’s attempt to
distribute invitations to a meeting at his church, even “during non-instructional
times.”69
Further complicating our inquiry is the fact that Tinker’s application in
the elementary-school context has never been clearly established.70 Tinker did
65
Bannon, 387 F.3d 1214–15 (applying Hazelwood where project was designed to
impart knowledge—specifically the creation and appreciation of artwork)).
66
E.g., id. (applying Hazelwood to a “school beautification project” for which students
did not earn grades or credit, and which occurred on Saturdays and required a separate
participation fee); Fleming, 298 F.3d at 921, 928 (applying Hazelwood to a project at
Columbine High School in which students were given the opportunity to create artwork on
tiles to be displayed in the school, even though the project was not for students alone and was
open to the general community).
67
Bannon, 387 F.3d at 1214–15.
68
Walz, 342 F.3d at 277.
69
Muller ex rel. Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1539 (7th Cir. 1996).
70
Even counsel for one of the plaintiffs’ amici curiae has recognized as much. See Jay
Alan Sekulow et al., Proposed Guidelines for Student Religious Speech and Observance in
22
Case: 09-40373 Document: 00511615560 Page: 23 Date Filed: 09/27/2011
No. 09-40373
not, by its own terms, address the rights of elementary students or involve
elementary-aged plaintiffs. Indeed, the petitioners in that case were two high-
school students (ages 15 and 16, respectively), and an eighth-grader (age 13).71
Neither the Supreme Court nor this Court has expressly extended Tinker-based
speech rights into the elementary-school setting. And at least two of our sister
circuits have expressly doubted whether and to what extent Tinker applies to
protect speech in public elementary schools.72
Public Schools, 46 MERCER L. REV. 1017, 1072 (1995) (“Tinker itself dealt with the speech
rights of high school and junior high school students. The proposed guidelines [from this
article] extend the Tinker standard to elementary schools.”); see also Ann Hassenpflug, The
Limits of Freedom of Speech for Students in Grades PK–8, 198 EDUC. L. REP. 383, 383 (2005)
(“In Tinker[,] the Court . . . . did not address . . . any type of elementary student speech.”); Jon
Perrelle, Note: An Opportunity for Reform: Tennessee Secondary School Athletic Association
v. Brentwood Academy and NCAA Recruiting, 74 BROOK. L. REV. 1213, 1231 n.140 (2009)
(“[N]o decisions of the Courts of Appeals apply Tinker-based speech rights to the elementary
school setting . . . .”).
71
Tinker, 393 U.S. at 504.
72
Both the Third and Seventh Circuits have held that, if elementary students enjoy
Tinker-based speech rights, those rights are far more limited than the rights of older students.
The Third Circuit has gone so far as to note that “at a certain point, a school child is so young
that it might reasonably be presumed the First Amendment does not protect the kind of
speech at issue here.” Walker-Serrano ex rel. Walker v. Leonard, 325 F.3d 412, 418 (3d Cir.
2003).
Similarly, the Seventh Circuit has held that, to the extent elementary students enjoy
First Amendment rights at school, those rights are tightly circumscribed in light of their young
age. See, e.g., Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 738 (7th Cir. 1994),
superseded by statute on an unrelated point as recognized in Lawrence v. Kenosha Cnty., 391
F.3d 837, 844 (7th Cir. 2004) (noting the “dearth of caselaw in the lower federal courts”
discussing “the applicability of the First Amendment to grammar school students,” and
holding that “age is a relevant factor in assessing the extent of a student's free speech rights
in school”). At least one member of the Seventh Circuit has expressly doubted whether Tinker
applies to elementary students at all. Muller, 98 F.3d at 1538–39 (opinion of Manion, J.)
(citation omitted) (“[I]t is unlikely that Tinker and its progeny apply to public elementary (or
preschool) students.”). Several subsequent panels have favorably cited Judge Manion’s opinion
and expressed similar doubts as to the scope and applicability of the First Amendment in
public elementary schools. See Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874,
876 (7th Cir. 2011) (citing Muller, 98 F.3d at 1538–39, for the proposition that “the younger
the children, the more latitude the school authorities have in limiting expression”); Brandt v.
Bd. of Educ. of City of Chicago, 480 F.3d 460, 466 (7th Cir. 2007) (doubting the proposition
that the speech clause extends “at least as far down the maturity ladder as a 10-year-old”
23
Case: 09-40373 Document: 00511615560 Page: 24 Date Filed: 09/27/2011
No. 09-40373
Central to these courts’ speculation that Tinker may not apply in public
elementary schools is the idea that “age is a relevant factor in assessing the
extent of a student’s free speech rights in school.”73 The Supreme Court has long
held that “a school must be able to take into account the emotional maturity of
the intended audience in determining whether to disseminate student speech on
potentially sensitive topics.”74 Further, some courts have found the traditional
justifications for a robust First Amendment lacking in the elementary-school
context. As the Seventh Circuit noted, “[t]he ‘marketplace of ideas,’ an
important theme in the high school student expression cases, is a less
appropriate description of an elementary school, where children are just
beginning to acquire the means of expression.”75
C
Rather than grapple with the complexities of applying Tinker and
Hazelwood in public elementary schools, the plaintiffs urge that the law is
clearly established in light of the general First Amendment rule disfavoring
viewpoint discrimination. Of course, it cannot be gainsaid that “[d]iscrimination
because it stands in tension with Muller, 98 F.3d at 1538-39, and Baxter, 26 F.3d at 736–38);
Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 673 (7th Cir. 2008)
(relying on Muller, 98 F.3d at 1538–39, for the proposition that when a school regulates the
speech of children that are “very young . . . the school has a pretty free hand” (citing also
Baxter, 26 F.3d at 738 (7th Cir. 1994); Blau v. Fort Thomas Public Sch. Dist., 401 F.3d 381,
389 (6th Cir. 2005); Walker-Serrano, 325 F.3d 412, 416–17 (3d Cir. 2003); Lovell by Lovell v.
Poway Unified Sch. Dist., 90 F.3d 367, 373 (9th Cir. 1996)).
73
Baxter, 26 F.3d at 738 (emphasis omitted); see also Zamecnik, 636 F.3d at 876 (“[T]he
younger the children, the more latitude the school authorities have in limiting expression.”);
Nuxoll, 523 F.3d at 673 (noting that when a school regulates the speech of children that are
“very young . . . the school has a pretty free hand” (citations omitted)).
74
Hazelwood, 484 U.S. at 272.
75
Muller, 98 F.3d at 1538; see also Zamecnik, 636 F.3d at 876 ) (“[T]he contribution that
kids can make to the marketplace of ideas and opinions is modest . . . .” (discussing Nuxoll,
523 F.3d at 676–80)).
24
Case: 09-40373 Document: 00511615560 Page: 25 Date Filed: 09/27/2011
No. 09-40373
against speech because of its message is presumed to be unconstitutional.”76 But
this rule is far too general to clearly establish the law in this case, as the
Supreme Court recently reaffirmed in Al-Kidd: “We have repeatedly told
courts . . . not to define clearly established law at a high level of generality.”77
At argument, the plaintiffs contended that the “level-of-generality
discussion is less important here” because the rule against viewpoint
discrimination is absolute. But this is not so. No matter how “axiomatic”78 the
generalized rule against viewpoint discrimination may be, we cannot neglect
that this case arises in the public schools, a special First Amendment context,79
which admits of no categorical prohibition on viewpoint discrimination. The
plaintiffs cite a handful of cases that ostensibly establish such a prohibition. But
none of these cases involve student speech—let alone elementary-student
speech—at school, during the school day.80
76
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828 (1995) (citing
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641–643 (1994)); see also Chiu v. Plano Indep.
Sch. Dist., 260 F.3d 330, 350 (5th Cir. 2001) (holding that the Court did not need to determine
the nature of a forum for adult speech outside of the school day, because of the “well-settled”
prohibition on viewpoint discrimination “in any forum”).
77
Al-Kidd, 131 S. Ct. at 2084 (citations omitted).
78
Rosenberger, 515 U.S. at 828 (citing Police Dep’t of Chicago v. Mosley, 408 U.S. 92,
96 (1972)).
79
Morse, 551 U.S. at 394 (reiterating that student-speech claims must be considered
“‘in light of the special characteristics of the school environment” (quoting Tinker, 393 U.S. at
506).
80
See Good News Club, 533 U.S. at 113 (invalidating school’s restriction on an outside
religious group’s use of a school’s multipurpose facility after school hours); Rosenberger, 515
U.S. at 830 (holding that university could not withhold student activities funds from an
extracurricular student group simply because of the religious nature of its speech); Lamb’s
Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 393 (1993) (invalidating school
district’s restriction on a religious group’s use of school facilities during times they were not
being used for school purposes); Bd. of Educ. of Westside Cmty. Sch. (Dist. 66) v. Mergens, 496
U.S. 226, 250–51 (1990) (same); Widmar v. Vincent, 454 U.S. 263, 273–75 (1981) (holding that
a university that “opened its facilities for use by student groups” could not then discriminate
against a particular group because of its religious purpose).
25
Case: 09-40373 Document: 00511615560 Page: 26 Date Filed: 09/27/2011
No. 09-40373
Not only is there no categorical ban on viewpoint discrimination in public
schools, our sister circuits have divided over the question.81 Indeed, as we have
previously recognized, “[a] split exists among the Circuits on the question of
whether Hazelwood requires viewpoint neutrality” in public schools.82 Some of
the courts to have allowed viewpoint discrimination have done so precisely
because the speech at issue was religious. For instance, in Curry ex rel. Curry
v. Hensiner,83 the Sixth Circuit upheld a school’s restriction on a student seeking
to distribute a candy-cane message, nearly identical to the one in this case, as
part of an organized school activity. The court held that “[t]he school’s desire to
avoid having its curricular event offend other children or their parents, and to
avoid subjecting young children to an unsolicited religious promotional message
that might conflict with what they are taught at home qualifies as a valid
educational purpose.”84
81
The plaintiffs have argued that the defendants waived the argument that the law
was not clearly established in light of this circuit split. We reject this argument because the
plaintiffs briefed cases arising from this Hazelwood-based circuit split at every phase of this
proceeding: at the district court, before the panel, and now before the en banc Court. Even if
they had not, the Supreme Court has held that “When an issue or claim is properly before the
court, the court is not limited to the particular legal theories advanced by the parties, but
rather retains the independent power to identify and apply the proper construction of
governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991).
82
Chiras v. Miller, 432 F.3d 606, 615 (5th Cir. 2005); see also 2 RODNEY A. SMOLLA,
SMOLLA & NIMMER ON FREEDOM OF SPEECH, § 7:14.50 (Westlaw current through March 2011)
(“There is a division among courts as to whether the . . . deferential First Amendment
standard articulated in Hazelwood is nonetheless trumped and displaced by the First
Amendment norm heavily disfavoring viewpoint discrimination.”). Compare, e.g., Fleming,
298 F.3d at 928 (“Hazelwood does not require educators’ restrictions on school-sponsored
speech to be viewpoint neutral.”), and Ward v. Hickey, 996 F.2d 448, 454 (1st Cir.1993) (“[T]he
Court in [Hazelwood] did not require that school regulation of school-sponsored speech to be
viewpoint neutral.”), with Searcey v. Harris, 888 F.2d 1314, 1319 n. 7 (11th Cir.1989) (“[T]here
is no indication that the [Hazelwood] Court intended to drastically rewrite First Amendment
law to allow a school official to discriminate based on a speaker’s views.”).
83
513 F.3d 570 (6th Cir. 2008)
84
Id. at 579 (citing Edwards v. Aguillard, 482 U.S. 578, 584 (1987)).
26
Case: 09-40373 Document: 00511615560 Page: 27 Date Filed: 09/27/2011
No. 09-40373
Another of these cases is practically on all fours with the Jonathan Morgan
incident before us today. In Walz v. Egg Harbor Township Board of Education,85
the Third Circuit upheld an elementary school’s restriction on religious
gifts—including pencils inscribed “Jesus ! the Little Children” and a version of
the same candy-cane message at issue in this case—at seasonal classroom
parties. Other students were allowed to distribute their generic seasonal gifts.
The Third Circuit reasoned that the student’s attempts to distribute the
religious pencils were not an attempt at “personal religious observance,” but
rather an attempt to promote a specific message.86 The court held that the
school’s efforts to prevent “advocacy” in classroom activities—religious, political,
or commercial—was a legitimate educational purpose, given elementary-school
students’ impressionability.87
D
Establishment Clause concerns add still another layer of complexity to our
legal analysis in this case. Despite widespread judicial recognition of the law in
this area as the “the thorniest of constitutional thickets,”88 the plaintiffs insist
that the defendants’ Establishment Clause argument is a “red herring” that
“borders on frivolous.” They argue that school officials’ obligations under the
Establishment Clause are perfectly clear: to be neutral toward religion at all
times. But they neglect that the Supreme Court has explicitly left open
“whether a State’s interest in avoiding an Establishment Clause violation” can
ever justify viewpoint discrimination.89
85
342 F.3d 271 (3d Cir. 2003).
86
Id. at 280.
87
Id. at 277.
88
Peck v. Baldwinsville Cent., 426 F.3d at 620.
89
Good News Club, 533 U.S. at 113 (citing Lamb’s Chapel, 508 U.S. at 394–95).
27
Case: 09-40373 Document: 00511615560 Page: 28 Date Filed: 09/27/2011
No. 09-40373
Further complicating the law in this area is that other courts have held
that the Establishment Clause requires educators to prohibit the distribution of
religious materials in public elementary schools.90 For instance, the Fourth
Circuit, in Peck v. Upshur County Board of Education, considered a school
board’s neutral policy allowing for the distribution of Bibles in public schools
during the school day. The board took great pains to avoid the appearance that
it was endorsing religion. As the court described,
The table displays are set up and stocked entirely by private citizens
who are not affiliated in any way with the schools, and the tables
bear signs informing students only that they should feel free to take
the Bibles or other material offered. Pursuant to district court
injunction, the tables also bear a disclaimer, renouncing any
sponsorship or endorsement by the school. No one is allowed to
enter classrooms to announce the availability of the religious or
political material, or to stand at the tables to encourage or pressure
students to take the material. No school announcement or assembly
is allowed to mark the availability of the Bibles or any other
religious or political material. School principals are charged with
ensuring strict compliance with these guidelines.91
Despite these efforts to avoid endorsement, the Fourth Circuit held the district’s
policy unconstitutional “to the extent that it allows the display of Bibles and
other religious material in the elementary schools of the County.”92 The court
cited concern that “children of these ages may be unable to fully recognize and
appreciate the difference between government and private speech—a difference
that lies at the heart of the neutrality principle—the County’s policy could more
easily be (mis)perceived as endorsement rather than as neutrality.”93
90
Peck v. Upshur Cnty. Bd. of Educ., 155 F.3d 274, 288 n* (4th Cir. 1998).
91
Id. at 275–76.
92
Id. at 288 n.* (emphasis added).
93
Id.28
Case: 09-40373 Document: 00511615560 Page: 29 Date Filed: 09/27/2011
No. 09-40373
Other circuits have recognized the risk that elementary students may
misperceive neutrality toward religious speech as endorsement. For instance,
in Walz, the Third Circuit noted that “in an elementary school classroom, the
line between school-endorsed speech and merely allowable speech is blurred.”94
In a high-school classroom, by contrast, “students are mature enough and are
likely to understand that a school does not endorse speech that it merely permits
on a nondiscriminatory basis.”95
The plaintiffs insist that these Establishment Clause concerns are
unfounded in light of the Supreme Court’s decision in Good News Club v. Milford
Central School.96 At argument, they asserted that Peck “does not survive Good
News Club” because the Supreme Court in Good News Club “rejected the idea
that elementary students are different.” They are mistaken. Instead, in Good
News Club, the Supreme Court reiterated previous precedents assigning
“significance . . . in the Establishment Clause context to the suggestion that
elementary school children are more impressionable than adults,”97 at least
when the school can actually be said to be advancing religion. However, the
Court held that cases recognizing the impressionability of the youngest children
do not go so far as to “foreclose private religious conduct during nonschool hours
merely because it takes place on school premises where elementary school
children may be present.”98 In other words, in Good News Club, the Court
declined to consider the students’ impressionability in light of the facts at hand,
94
Walz, 342 F.3d at 277 (citing Edwards, 482 U.S. 578).
95
Id.96
533 U.S. 98, 117–18 (2001).
97
Good News Club, 533 U.S. at 115 (citing Sch. Dist. of Grand Rapids v. Ball, 473 U.S.
373, 390 (1985)).
98
Id.29
Case: 09-40373 Document: 00511615560 Page: 30 Date Filed: 09/27/2011
No. 09-40373
where “individuals who [we]re not schoolteachers [we]re giving lessons after
school to children permitted to attend only with parental consent.”99 This is a
far cry from “rejecting the idea that elementary students are different.”100
E
The principals are entitled to immunity because the general state of the
law in this area is abstruse, complicated, and subject to great debate among
jurists. At the time of the incidents in question, neither a single “controlling
authority” nor a “robust consensus of persuasive authority” had held that the
First Amendment prohibits school principals from restricting the distribution of
written religious materials in public elementary schools.101 Nor had a single
federal court of appeals definitively held that Tinker-based speech rights inhere
in public elementary schools, let alone defined the scope of those rights with a
high degree of particularity. The generalized prohibition against viewpoint
discrimination is far too abstract to clearly establish the law in this case, and the
circuits are divided over its application in public elementary schools. The speech
rights asserted in this case cannot be said to be “clearly established” when
99
Id.100
Neither did the Supreme Court “reject the idea that elementary students are
different” in Mergens. The plaintiffs and their amici have repeatedly quoted Justice
O’Connor’s statement, for the plurality, that “[t]he proposition that schools do not endorse
everything they fail to censor is not complicated.” Mergens, 496 U.S. at 250–51 (plurality).
However, in quoting this language out of context, they ignore that the plurality opinion in
Mergens was plainly limited to high-school students. Indeed, the Supreme Court in Mergens
held only “that secondary school students are mature enough and are likely to understand that
a school does not endorse or support student speech that it merely permits on a
nondiscriminatory basis.” Id. at 250.
101
The plaintiffs highlight a Seventh Circuit case invalidating a restriction on a middle-
school student’s distribution of written religious materials. See Hedges v. Wauconda Cmty.
Unit Sch. Dist. No. 118, 9 F.3d 1295, 1297 (7th Cir. 1993) (invalidating a district policy
forbidding distribution of religious material “[a]t the elementary and junior high school”).
However, even if this case established a right to distribute such materials in elementary
schools, this is far from the “robust consensus of persuasive authority” needed to clearly
establish the law.
30
Case: 09-40373 Document: 00511615560 Page: 31 Date Filed: 09/27/2011
No. 09-40373
balanced against competing Establishment Clause concerns that inhere in public
elementary schools.
(1)
Factually analogous precedent failed to prohibit Principal Swanson’s
conduct (restricting the distribution of religious materials at a classroom party),
as did the general bodies of law discussed above. Her case is unique among our
qualified-immunity cases because, in addition to no law prohibiting her conduct,
one of our sister circuits had explicitly sanctioned almost identical conduct.
Swanson had been advised of this precedent—the Third Circuit’s decision in
Walz—before acting, as even the plaintiffs’ complaint acknowledges.
Walz could hardly be more damaging to the plaintiffs’ case against
immunity, so they make a number of attempts to distinguish it. First, they
argue that the gifts in Walz were not distributed between students, but rather
through the parent-teacher organization (PTO). This is a plain misreading of
the opinion, which indicates that Daniel Walz sought to distribute his gifts
directly to his classmates.102 Second, the plaintiffs argue that Walz was not a
viewpoint-discrimination case. This argument also fails. It is true that the
school policy in Walz prohibited students from distributing messages of a
“commercial, political, or religious” nature. But the fact that the school in Walz
discriminated against several viewpoints is a distinction without a difference.
The plaintiffs’ entire viewpoint-discrimination theory is that it is always
unconstitutional to permit secular or generic seasonal gifts but to prohibit
religious ones. It does not save this theory to point out that the policy in Walz
permitted secular or generic seasonal gifts but prohibited religious, political, and
102
See Walz, 342 F.3d at 273 (“At this particular party, Daniel brought his gifts directly
to class where he distributed [the religious] pencils to his classmates.” (emphasis added)); id.(noting that at the second party, “Daniel sought to distribute candy canes to his classmates.”
(emphasis added)).
31
Case: 09-40373 Document: 00511615560 Page: 32 Date Filed: 09/27/2011
No. 09-40373
commercial ones.103 Our analysis would be no different if PISD had restricted
both religious and political seasonal expressions by restricting Jonathan’s
“Legend of the Candy Cane” pens and another student’s “Stop the war this
winter” pencils.
The plaintiffs’ third attempt to distinguish Walz is that Daniel Walz was
allowed to distribute his candy-cane story in an alternative location: “in the
school hallway after class or at recess.”104 This fact both fails to distinguish Walz
and proves far too much. First, Principal Swanson here repeatedly offered an
alternative location at which Jonathan could distribute “The Legend of the
Candy Cane.” Second, this attempt to distinguish Walz proves too much,
because the Third Circuit held that the offering of an alternative forum for
religious messages was “more than reasonable and perhaps even unnecessary”
for First Amendment purposes.105
103
We take no position on the substantive correctness of the Third Circuit’s holding in
Walz, that it is a constitutionally legitimate goal to prevent “advocacy” in the elementary-
school environment. We highlight Walz instead as a precedent on which Swanson was entitled
to rely, for qualified-immunity purposes.
104
Id. at 280.
105
Id. (emphasis added) (citation omitted).
32
Case: 09-40373 Document: 00511615560 Page: 33 Date Filed: 09/27/2011
No. 09-40373
(2)
Defendant Bomchill is also entitled to immunity. We begin our discussion
of Principal Bomchill’s immunity with the after-school incident. As we discuss
in the next Part, we ultimately conclude that Principal Bomchill violated
Stephanie Versher’s First Amendment rights when she restricted her from
distributing “Jesus” pencils outside of school hours to a small group of students
who specifically requested them. We are sensitive to the outrage and concern
the plaintiffs and various amici feel over this after-school incident, which
involved the distribution of a small number of religious items among willing
friends, outside of school hours. But our qualified-immunity inquiry does not
ask what we think of a defendant’s conduct as a normative matter.106 Rather,
qualified immunity is a dispassionate inquiry that asks us only to identify the
state of the law as a descriptive matter.
Bomchill is entitled to immunity for this after-school incident because no
law gave fair notice that elementary educators may not restrict the distribution
of written religious materials to elementary students on the school lawn, after
school. As we discuss in the next Part, Stephanie’s after-school speech looks far
more like the private speech contemplated in Tinker than the school-sponsored
speech discussed in Hazelwood. But we cannot ignore that Tinker’s applicability
in elementary schools has never been clearly established, and has indeed been
questioned by multiple federal courts of appeals.
Neither can we ignore the Fourth Circuit’s decision in Peck, which forbade
the distribution of religious materials in elementary schools on Establishment
106
Further, we think it fitting to withhold some judgment of Bomchill’s conduct until
a developed record reveals more about the circumstances. Principals like Bomchill often have
to make on-the-spot constitutional determinations in the face of litigious parents already
determined to sue. Amici educators remind us that parents across the nation have thusly
sought to engineer “gotcha” moments for use as fodder for litigation and media campaigns.
Only a more developed fact record will reveal if that was the case here.
33
Case: 09-40373 Document: 00511615560 Page: 34 Date Filed: 09/27/2011
No. 09-40373
Clause grounds. Peck shares many similarities with Stephanie’s after-school
incident. For instance, like the group distributing Bibles in Peck, Stephanie
distributed her “Jesus” pencils only to students who specifically requested them.
And just as the Bible distributors in Peck were prohibited from “encourag[ing]
or pressur[ing] students to take the material,”107 Stephanie alleges that she only
distributed her pencils to students who specifically sought to receive them.
Despite strong evidence that the speech in question was not the school’s, the
Fourth Circuit held that allowing distribution of religious items in public
elementary schools violates the Establishment Clause in all instances. Principal
Bomchill is entitled to immunity in light of this pronouncement.
Principal Bomchill is entitled to immunity for the two remaining
incidents—the half-birthday incident and the passion-play-ticket incident—for
largely the same reasons. The complaint omits important facts necessary to
classify the speech in either incident, as we discuss in the next Part. But even
despite important missing details, we are able to conclude that Bomchill is
entitled to immunity for these incidents because Tinker’s applicability in
elementary schools has never been clearly established, and Establishment
Clause concerns rendered the law in this area unclear.
107
Peck, 155 F.3d at 275–76.
34
Case: 09-40373 Document: 00511615560 Page: 35 Date Filed: 09/27/2011
No. 09-40373
V
At the 12(b)(6) stage, to hold that the defendant violated the law at step
one of the qualified-immunity analysis means is simply to say that the plaintiff
has stated a claim upon which relief may be granted.108 Defendant Bomchill’s
conduct in conjunction with the after-school incident, as pleaded in the
complaint and in the light most favorable to the plaintiffs, violated Stephanie
Versher’s First Amendment rights. The Court should decline for the time being
to pass on the constitutionality of the remaining incidents.
A
Because we have granted immunity to the principals at step two of the
qualified-immunity analysis, it is within our discretion to decline entirely to
address the constitutionality of the defendants’ conduct. This flexibility was not
ever thus. Indeed, until recently the Supreme Court required us in every case
to address the underlying constitutional claim, so as to promote “the law’s
elaboration from case to case.”109 Then, in Pearson v. Callahan, the Court
retreated from this “rigid order of battle,” granting lower courts discretion over
the order of the analysis and making step one optional when immunity is
required at step two.110 However, the Pearson Court cautioned that while “the
108
See Pearson, 129 S. Ct. at 815–16 (describing step one of the qualified-immunity
procedure as deciding “whether the facts that a plaintiff has alleged [under Rule 12(b)(6)] or
shown [under Rule 50 or 56] make out a violation of a constitutional right”). Throughout this
appeal, the defendants have vigorously contested the plaintiffs’ version of the facts. The
district court will likely confront these same issues again when it addresses the plaintiffs’
claims against PISD. We caution the district court that our ruling today does not preclude a
different result on summary judgment or at trial, after the parties have had an opportunity
to develop the record through discovery.
109
Saucier v. Katz, 533 U.S. 194, 201 (2001).
110
Pearson v. Callahan, 129 S. Ct. 808, 817–18 (2009).
35
Case: 09-40373 Document: 00511615560 Page: 36 Date Filed: 09/27/2011
No. 09-40373
Saucier protocol should not be regarded as mandatory in all cases, . . . it is often
beneficial.”111
The Supreme Court in Pearson outlined a number of situations where
federal courts might wish to skip step one of the qualified-immunity analysis.
These include: (1) “cases in which the constitutional question is so factbound
that the decision provides little guidance for future cases”; (2) “when it appears
that the question will soon be decided by a higher court”; (3) “[a] constitutional
decision resting on an uncertain interpretation of state law”; (4) “[w]hen
qualified immunity is asserted at the pleading stage,” and “the precise factual
basis for the plaintiff's claim or claims [is] hard to identify”; and (5)
“circumstances in which the first step of the Saucier procedure may create a risk
of bad decisionmaking.”112
Recent decisions suggest that the Supreme Court continues in its retreat
from the old Saucier two-step analysis. In Camreta v. Greene, using stronger
language than before, the Court clarified that lower courts “should address only
the immunity question” in the circumstances outlined in Pearson.113 The
Camreta Court further cautioned that lower courts should “think hard, and then
think hard again” before unnecessarily deciding the merits of a constitutional
issue, and thus risk “turning small cases into large ones.”114 Then, only days
later, in Ashcroft v. Al-Kidd, the Court cautioned that we should “think carefully
before expending ‘scarce judicial resources’ to resolve difficult and novel
111
Id. at 818.
112
Id. at 819–820.
113
131 S. Ct. 2020, 2032 (2011) (emphasis added).
114
Id.36
Case: 09-40373 Document: 00511615560 Page: 37 Date Filed: 09/27/2011
No. 09-40373
questions of constitutional or statutory interpretation that will ‘have no effect
on the outcome of the case.’”115
We have “thought carefully” about whether to address the merits of
constitutional issues before us today. We conclude that clarifying some of the
law’s uncertainties would be useful to the district court’s conduct of the rest of
this case—which includes official-capacity claims against the defendants and an
as-applied challenge to the school’s speech policy. But we are also mindful that
this appeal arises at the pleading phase. Deciding whether some of the incidents
in question violated the plaintiffs’ rights “depend[s] on a kaleidoscope of facts not
yet fully developed,”116 a situation described in Pearson as warranting avoidance
of qualified immunity step one. Thus, we exercise our discretion to address the
constitutionality of only one of the incidents in question.
B
As a preliminary matter, because it has been unclear, it should be clarified
today that the student-speech rights announced in Tinker inhere in the
elementary-school context. It is difficult to identify a constitutional justification
for cabining the First Amendment protections announced in Tinker to older
students. This view finds support in other areas of First Amendment law. For
instance, the Supreme Court has long recognized elementary students’ freedom
of conscience in the First Amendment context. Indeed, in West Virginia Board
of Education v. Barnette, which involved elementary-aged plaintiffs, the Court
recognized that the government may not compel particular speech from citizens,
school children or otherwise.117 The plaintiffs in Barnette were elementary-
115
Al-Kidd, 131 S. Ct. at 2080 (quoting Pearson, 555 U.S. at 236–37).
116
Pearson, 129 S. Ct. at 819 (citing Dirrane v. Brookline Police Dep’t, 315 F.3d 65,
69–70 (1st Cir. 2002).
117
319 U.S. 624 (1943). The plaintiffs throughout this case argued that Barnette itself
established the affirmative speech rights of public-school students, but the Supreme Court
37
Case: 09-40373 Document: 00511615560 Page: 38 Date Filed: 09/27/2011
No. 09-40373
school students. A recent Supreme Court decision also recognized the First
Amendment rights of the youngest Americans—outside of the school
environment—in invalidating a California ban on the sale of violent video games
to minors.118
In affirming that Tinker-based speech rights apply to elementary students,
we must be mindful of a long-established countervailing principle: in public
schools, the “speech appropriate for eighteen-year-old high school students is not
necessarily acceptable for seven-year-old grammar school students.”119 Indeed,
“common sense” dictates that “a 7–year–old is not a 13–year–old[,] and neither
is an adult.”120 In other words, to extend Tinker’s protections to public
elementary schools is not necessarily to hold that the speech rights of
elementary students are coextensive with those of older students. As the Third
Circuit has recognized, the Tinker framework is a flexible, “case-by-case”
approach that is capable of accommodating the concern “[t]hat elementary
students require a greater degree of control, or a different kind of control.”121
Tinker protects private student expression where there is no “interference,
actual or nascent, with the schools’ work or collision with the rights of other
students to be secure and to be let alone.”122 Courts’ analysis of the “work of the
itself has not subsequently construed Barnette as such. See, e.g., Rumsfeld v. Forum for
Academic and Institutional Rights, Inc., 547 U.S. 47, 61 (2006) (“Some of this Court’s leading
First Amendment precedents have established the principle that freedom of speech prohibits
the government from telling people what they must say.” (citing Barnette, 319 U.S. at 642);
Johanns v. Livestock Marketing Ass’n, 544 U.S. 550, 557 (2005) (“We first invalidated an
outright compulsion of speech in West Virginia Bd. of Ed. v. Barnette.”).
118
Brown, 131 S. Ct. at 2741.
119
Walker-Serrano, 325 F.3d at 416–17.
120
J.D.B. v. North Carolina, 131 S. Ct. 2394, 2407 (2011).
121
Walker-Serrano, 325 F.3d at 417.
122
393 U.S. at 508.
38
Case: 09-40373 Document: 00511615560 Page: 39 Date Filed: 09/27/2011
No. 09-40373
schools” and the “rights of other students” can and may often look different in
the elementary-school context. The Texas Elementary School Principals
Association reminds us that the “work” of public elementary schools is in many
ways broader than that of public high schools. High school students obviously
already have a grasp on the most basic social and behavioral tasks, like “going
to the restroom alone.” By contrast, these amici remind us, the youngest
elementary students “cannot easily discern fact from fiction, nor can they easily
process serious political, religious, and social issues on their own.” It follows,
then, that some speech might be “materially and substantially disruptive” to the
work of a public elementary school, but not to a public high school.
Further, an analysis of whether student speech infringes on the rights of
others, including “the right to be let alone,” may also look different in the
elementary-school context.123 Elementary students are more susceptible to
coercion and peer pressure, while older students are better equipped emotionally
and intellectually to filter the potentially hurtful words of their classmates or
walk away from speech that bothers or offends them. But there is no reason that
the Tinker framework cannot accommodate this concern.
It is also true that the exceptions to Tinker’s general rule, as announced
in Hazelwood, Fraser, and Morse, might also look different in an elementary-
school context. For example, Hazelwood applies to speech that “students . . .
123
As the Seventh Circuit has recognized,
[i]n a public forum, the Christian can tell the Jew he is going to hell, or the Jew
can tell the Christian he is not one of God’s chosen, no matter how that may
hurt. But it makes no sense to say that the overly zealous Christian or Jewish
child in an elementary school can say the same thing to his classmate, no
matter the impact. Racist and other hateful views can be expressed in a public
forum. But an elementary school under its custodial responsibilities may
restrict such speech that could crush child’s sense of self-worth.
Muller, 98 F.3d at 1539–40.
39
Case: 09-40373 Document: 00511615560 Page: 40 Date Filed: 09/27/2011
No. 09-40373
might reasonably perceive to bear the imprimatur of the school.”124 This
“imprimatur of the school” inquiry may vary based on the age of the students
involved, just as it does in the Establishment Clause context. Indeed, courts
have recognized that, “in an elementary school classroom, the line between
school-endorsed speech and merely allowable speech is blurred.”125 Similarly,
the threshold for what constitutes suggestive or lewd speech, as discussed in
Fraser, might be lower in an elementary-school setting. The case before us today
does not call on us to resolve these questions. They are noted here simply as a
potential way of accommodating the well-established concern that the
boundaries of appropriate speech may look markedly different in elementary
schools than in middle or high schools.
C
Having determined that Tinker applies in elementary schools, we must
also conclude that Principal Bomchill violated Stephanie Versher’s First
Amendment rights in connection with the after-school incident. On the facts
alleged in the complaint, this incident involves private speech governed by
Tinker, not school-sponsored speech under Hazelwood. A reasonable person
would not have believed that Stephanie Vesher’s act of handing pencils to a
select few recipients after school bore the imprimatur of the school. Indeed, the
complaint alleges that Stephanie distributed her pencils only to a “small group
of her classmates,” and, even then, she distributed them only to students who
specifically asked her for one. The speech occurred after school hours, “on the
lawn and sidewalk.” There is no indication that students were engaged in any
sort of structured activity at the time of the distribution, nor that the students
were under the supervision of teachers, either of which might lend an
124
484 U.S. at 271.
125
Walz, 342 F.3d at 277 (citing Edwards, 482 U.S. 578).
40
Case: 09-40373 Document: 00511615560 Page: 41 Date Filed: 09/27/2011
No. 09-40373
appearance of imprimatur. Nor is there any indication that Stephanie
distributed her materials to a captive audience of students who were not free to
reject her speech.
Given that Tinker governs this after-school incident, Principal Bomchill’s
actions, as pleaded in the complaint, were unconstitutional. There is no
indication that Stephanie’s distribution of a few pencils to her good friends
interfered with the “work of the school” or infringed on the rights of other
students. For instance, there is no indication that Stephanie interfered with the
conduct of the carpool or bus lines, nor that the “Jesus loves me” message on her
pencils caused a spillover disruption into other parts of the school. The
defendants do not argue that Stephanie’s pencils were age-inappropriate, nor do
they suggest that her distributing them infringed on the rights of other students.
To the contrary, Stephanie was careful to allege that she distributed pencils only
to students who wanted them.
Important to the conclusion that Principal Bomchill acted
unconstitutionally is the fact that she allegedly restricted Stephanie’s “Jesus”
pencils solely because of their message. From this pleaded fact, it can only be
inferred that Stephanie would have been allowed to distribute her pencils if they
had born a secular message. Tinker, when it applies, cannot countenance such
a restriction on private student speech. In other words, a school cannot allow
one student to distribute “Jesus” pencils on the school bus but forbid another
from distributing “Mohammed” pencils; nor could it allow one student to
distribute copies of the Democratic party platform but forbid his classmate from
disseminating its Republican analog. That said, it must be clarified that we do
not hold that public elementary schools must always allow students to
disseminate written materials, so long as the distribution occurs outside of a
“school-sponsored” activity. For example, this opinion does not reach a
hypothetical rule forbidding students from sharing gifts or invitations with only
41
Case: 09-40373 Document: 00511615560 Page: 42 Date Filed: 09/27/2011
No. 09-40373
a select few students, so as to avoid unfairness or hurt feelings. Rather, it holds
simply that, where Tinker applies in public elementary schools, a school may not
allow some speech on a given topic but not others, based solely on the content of
its message.
D
We decline, for now, to pass on the constitutionality of the remaining
incidents. The Supreme Court recently cautioned that, at the pleading stage,
where “the precise factual basis for the plaintiff’s claim or claims [is] hard to
identify,” we “should address only the immunity question.”126 We think the
remaining three incidents in this case—the passion-play-ticket incident, the
half-birthday party, and the winter-break party—fall squarely within this
admonition.
The two remaining allegations against Principal Bomchill are that she
restricted Stephanie Versher from distributing passion-play tickets while at
school and restricted her from distributing “Jesus” pencils at her half-birthday
party. Whether these actions violated Stephanie’s rights “depend[s] on a
kaleidoscope of facts not yet fully developed.” Specifically, the complaint omits
a number of facts that are essential to the determination of whether Tinker or
Hazelwood governs. With respect to the passion-play tickets, we cannot
determine whether the speech could reasonably have been understood to bear
the school’s imprimatur because we do not know when, where, or how widely
Stephanie distributed them; nor whether she distributed them during events
conducted pursuant to official guidelines; nor whether she distributed them
under the supervision of faculty; nor whether she “approached” other students
to discuss the crucifixion while they were a captive audience.127 Likewise, it is
126
Camreta, 131 S. Ct. at 2032.
127
These are the factors courts consider when determining whether to apply
Hazelwood. See supra nn.56–60 and accompanying text. The Vershers attempt to plead away
42
Case: 09-40373 Document: 00511615560 Page: 43 Date Filed: 09/27/2011
No. 09-40373
difficult to determine whether Stephanie’s half-birthday party was “school-
sponsored” event under Hazelwood because we do not know whether the party
occurred pursuant to specific guidelines; nor whether it was designed to impart
specific knowledge or skills; nor how many students attended; nor whether
teachers were present and supervising. Given the complaint’s reticence as to the
specific details of these events, we decline to “resolve the difficult and novel
questions of constitutional . . . interpretation” they present.128
The remaining allegation is that Principal Swanson restricted Jonathan
Morgan from distributing “The Legend of the Candy Cane” at a 2003 winter-
break party. We decline, for the time being, to pass on the issue, which depends
on a number of undeveloped facts. As a preliminary matter, we are able to
conclude fairly easily that the deferential Hazelwood standard governs this
incident. As the district’s attorneys advised the Morgans, the winter-break
parties have a “clearly defined curricular purpose to teach social skills and
respect for others in a festive setting,” and the parties are “highly structured,
supervised, and regulated.” Indeed, the parties are conducted in accordance
with specific written guidelines that stress uniformity across the grade level.
Thus, we have little trouble concluding that the winter-break parties were
“school-sponsored” activities and that Hazelwood is the proper governing
standard.
Having concluded that Hazelwood applies, our next task is to consider
whether the school’s restriction of Jonathan’s speech was “reasonably related to
legitimate pedagogical concerns.” Resolution of this question would benefit
greatly from a more developed factual record, and we need not decide it now; this
Hazelwood by alleging that Stephanie distributed her tickets only “during non-curriculum
times,” but this conclusory allegation is not entitled to the presumption of truth. See supra
n.47.
128
Al-Kidd, 131 S. Ct. at 2080 (quoting Pearson, 555 U.S. at 236–37).
43
Case: 09-40373 Document: 00511615560 Page: 44 Date Filed: 09/27/2011
No. 09-40373
issue will arise again when the district court addresses the plaintiffs’ claims
against the school district. Consideration of this question would benefit greatly
from the testimony of school officials and argument from the district. If they
wish, the plaintiffs at that time may present testimony from their own experts,
argue that the school’s pedagogical concerns were not “legitimate,” or to argue
that the restrictions involved were not “reasonably related” to those goals. Given
that Swanson is entitled to immunity, we think it best to leave this inquiry,
which involves questions of both fact and law, for summary judgment.
CONCLUSION
The defendants in this case are entitled to qualified immunity because
existing precedent failed to place the constitutionality of their conduct “beyond
debate.” Like other educators to have contended with religious speech in public
schools, Swanson and Bomchill had to make on-the-ground decisions balancing
constitutional imperatives from three areas of First Amendment jurisprudence:
the Supreme Court’s school-speech precedents, the general prohibition on
viewpoint discrimination, and the murky waters of the Establishment Clause.
The law tasked them with maintaining the most delicate of constitutional
balances: between students’ free-speech rights and the Establishment Clause
imperative to avoid endorsing religion. But it failed to provide any real, specific
guidance on how to do so. Moreover, almost all of the federal courts of appeals
to have to considered speech restrictions in this area have found no
constitutional violation in the first instance, including one case with facts nearly
identical to those now before us. And no federal court of appeals has ever denied
qualified immunity to an educator in this area. We decline the plaintiffs’ request
to become the first.
In short, for the reasons stated in Part IV of this opinion, we REVERSE
the judgment of the district court and REMAND with an instruction to dismiss
the plaintiffs’ claims as to Swanson and Bomchill in their individual capacities.
44
Case: 09-40373 Document: 00511615560 Page: 45 Date Filed: 09/27/2011
No. 09-40373
EDITH H. JONES, Chief Judge, together with Judges JOLLY and
SOUTHWICK specially concurring:
I fully agree with Judge Elrod’s passionate defense of the centrality of free
speech for school children and the axiomatic prohibition of viewpoint
discrimination. But I lament that, as Judge Benavides’s opinion shows, many
other courts have simply not seen the issues that way in somewhat analogous
cases to the one before us.1 I regretfully vote to reverse the denial of qualified
immunity to these principals.
Doing so, however, makes no sense unless the en banc court attempts to
state the law correctly and prevent school officials in the future from censoring
private speech by students simply because it is religious. I vote to adopt
Parts III A, C and D of Judge Elrod’s analysis showing that the actions of these
principals violated the students’ freedom to communicate with their peers in
each of the four instances before us. These instances do not fall within
Hazlewood, as Judge Elrod demonstrates. Our firm statement of the principles
supporting the children’s free speech in these instances is important to clarify
the law of the Fifth Circuit.
1
It must be emphasized that Judge Benavides’s opinion thoroughly describes the case
law creating uncertainty that supports the principals’ immunity, but this is not an
endorsement of any of those cases. In particular, I cannot understand the contention that
viewpoint discrimination may be uniquely permissible in public schools against student
religious speech, nor are expressed Establishment Clause concerns even plausible here. Citing
Hazlewood to justify the censorship of religious candy canes at winter break parties is plainly
hostile not only to the students’ religious beliefs but to the Judeo-Christian tradition that is
the only reason we ever had winter break parties to begin with. I disagree with other courts
that have expanded these theories without any basis.
45
Case: 09-40373 Document: 00511615560 Page: 46 Date Filed: 09/27/2011
No. 09-40373
KING, Circuit Judge, with whom DAVIS, Circuit Judge, joins, specially
concurring:
I concur in Judge Benavides’s opinion granting qualified immunity to
Principals Bomchill and Swanson. I do not join Part V A-C of that opinion. Nor
have I joined the opinions of Judge Elrod and others deciding that the complaint
states a claim for the violation by Principals Bomchill and Swanson of the First
Amendment rights of the students involved here. The latter question need not
have been decided now, and I think the ultimate resolution of that question
would have benefitted from further factual development. The opinions of Judge
Elrod and others, together with various briefs, have characterized the speech
involved here as private, non-disruptive, student-to-student speech, analogizing
it to a spontaneous student expression of a religious belief. I am not entirely
comfortable that is all that is involved here. The pleadings suggest to me
considerable parent involvement in the events at issue, a possibility that is
reinforced by the detailed opinion of Judge Elrod. Some degree of parent
involvement in those events may be inevitable by reason of the young age of the
children. But it may also be caused in part by the faith of the parents.
Evangelizing is an important obligation in some faiths, and parents who are
adherents to such a faith might well want not only to evangelize appropriately
but also to inculcate that obligation in their children and to teach them how it
is done. An elementary school principal, dealing (at least in part) with parents
who may reasonably be perceived as using the school venue to proselytize,1
might well be concerned about the response of other parents. Perhaps that is not
an issue here, but if it is, it might have better informed the question decided by
the opinions of Judge Elrod and others.
1
Webster defines “proselytize” as “to recruit members for an institution, team, or group
[especially] by the offer of special inducements.” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1821 (1993).
46
Case: 09-40373 Document: 00511615560 Page: 47 Date Filed: 09/27/2011
No. 09-40373
EMILIO M. GARZA, Circuit Judge, specially concurring:
I completely agree with the first paragraph of Chief Judge Jones’s special
concurrence, which concludes that the principals are entitled to qualified
immunity because clearly established law did not put the constitutionality of
their actions beyond debate. Accordingly, I join the first part of her opinion.
However, because we are ruling on a motion to dismiss, I am reluctant to
proceed further and declare as a matter of law, based only on the pleadings, that
these incidents constituted First Amendment violations. As the Supreme Court
has articulated, “[w]hen qualified immunity is asserted at the pleading stage,
the precise factual basis for the plaintiff's claim or claims may be hard to
identify,” and deciding whether a violation has occurred “is an uncomfortable
exercise where . . . the answer [to] whether there was a violation may depend on
a kaleidoscope of facts not yet fully developed.” Pearson v. Callahan, 555 U.S.
223, 238-39 (2009) (internal citations and quotation marks omitted).
Case: 09-40373 Document: 00511615560 Page: 48 Date Filed: 09/27/2011
No. 09-40373
DENNIS, Circuit Judge, specially concurring in Parts I to IV and V.D, but not
joining Part V.A to C or reaching the issue addressed therein:
I concur in Judge Benavides’ opinion, but I do not join Part V.A to C
because I respectfully do not agree that we should reach the issue addressed
therein, and, accordingly, I concur in the judgment only insofar as it grants
defendant-appellants qualified immunity.
I also do not join fully in Part IV.A of Judge Benavides’ opinion because
I disagree with one of its premises in discussing clearly established law.
Specifically, I disagree with the blanket statement that “generalizations and
abstract propositions are not capable of establishing the law.” Judge
Benavides’ Op. 14. In Anderson v. Creighton, 483 U.S. 635, 639 (1987), the
Supreme Court “appear[ed] to require a relatively high degree of specificity
before a rule can be called ‘clearly established.’” Schneyder v. Smith,
— F.3d —, 2011 WL 3211504, at *11 (3d Cir. July 29, 2011) (citing Anderson,
483 U.S. at 640). However, the Court was also “at pains to emphasize that
‘[t]his is not to say that an official action is protected by qualified immunity
unless the very action in question has previously been held unlawful, but it is
to say that in the light of preexisting law the unlawfulness must be
apparent.’” Id. at *11 (quoting Anderson, 483 U.S. at 640) (citation omitted).
“The Court further expounded this principle in a line of cases beginning
with United States v. Lanier, 520 U.S. 259 (1997).” Schneyder 2011 WL
3211504, at *11. In Lanier, the Supreme Court “held that the defendant was
entitled to ‘fair warning’ that his conduct deprived his victim of a
constitutional right . . . .” Hope v. Pelzer, 536 U.S. 730, 739-40 (2002). In so
doing, the Lanier Court “expressly rejected the requirement that previous
cases be ‘fundamentally similar’” in order to give fair warning. Hope, 536
U.S. at 741. The Court explained:
48
Case: 09-40373 Document: 00511615560 Page: 49 Date Filed: 09/27/2011
No. 09-40373
[G]eneral statements of the law are not inherently incapable of
giving fair and clear warning, and . . . a general constitutional
rule already identified in the decisional law may apply with
obvious clarity to the specific conduct in question, even though
“the very action in question has [not] previously been held
unlawful.”
Lanier, 520 U.S. at 271 (quoting Anderson, 533 U.S. at 640). Although Lanier
dealt with another statute, 18 U.S.C. § 242,1 the Supreme Court explained
“that the standard for determining the adequacy of that warning was the
same as the standard for determining whether a constitutional right was
‘clearly established’ in civil litigation under [42 U.S.C.] § 1983.” Hope, 536
U.S. at 739-40.
In Hope v. Pelzer, the Supreme Court “granted certiorari to determine
whether the Court of Appeals’ qualified immunity holding comport[ed] with
[its] decision in [Lanier].” Hope, 536 U.S. at 733. The court of appeals in
Hope had “stated that ‘the federal law by which the government official’s
conduct should be evaluated must be preexisting, obvious and mandatory,’
and established, not by ‘abstractions,’ but by cases that are ‘materially
similar’ to the facts in the case in front of us.” Id. at 736 (quoting Hope v.
Pelzer, 240 F.3d 975, 981 (11th Cir. 2001)) (internal quotation marks
omitted). The Supreme Court applied the same reasoning as in Lanier to
reject the court of appeals’ requirement that cases must be “materially
similar” in order to clearly establish a constitutional right:
Although earlier cases involving “fundamentally similar” facts
can provide especially strong support for a conclusion that the
law is clearly established, they are not necessary to such a
finding. The same is true of cases with “materially similar” facts.
Accordingly, pursuant to Lanier, the salient question that the
Court of Appeals ought to have asked is whether the state of the
1
“ Section 242 makes it a crime for a state official to act ‘willfully’ and under color of
law to deprive a person of rights protected by the Constitution.” Hope, 526 U.S. at 739.
49
Case: 09-40373 Document: 00511615560 Page: 50 Date Filed: 09/27/2011
No. 09-40373
law in 1995 gave respondents fair warning that their alleged
treatment of Hope was unconstitutional.
Id. Thus, Hope makes plain that the correct standard to apply in a clearly
established inquiry is whether the state actor had fair and clear warning that
his actions were unconstitutional.
I do not agree with Judge Benavides’ opinion’s characterization of this
language as merely dicta. Judge Benavides reasons that the Supreme Court
ultimately relied on prior circuit precedent to conclude that the defendants
had violated the plaintiff’s clearly established constitutional rights. Judge
Benavides’ Op. 15. However, the Hope Court reversed the court of appeals
not only because it reached the wrong result on qualified immunity based on
prior circuit precedent, but also because it had wrongly applied the
“materially similar” standard in reaching that result. Indeed, the Court first
held that the fair warning standard from Lanier should be used to evaluate
whether the defendants were entitled to qualified immunity, and then applied
that standard to conclude that they were. See Hope, 536 U.S. at 746 (“The
‘fair and clear warning,’ [Lanier, 520 U.S. at 271,] that these [prior circuit]
cases provided was sufficient to preclude the defense of qualified immunity at
the summary judgment stage.”). Therefore, the Court’s pronouncements on
the fair and clear warning standard were an essential part of its holding in
Hope.
Moreover, in the years since Hope, the Supreme Court has reaffirmed
this principle. For example, the Court recently stated:
To be established clearly . . . there is no need that “the very action
in question [have] previously been held unlawful.” . . . The
unconstitutionality of outrageous conduct obviously will be
unconstitutional, this being the reason, as Judge Posner has said,
that “[t]he easiest cases don’t even arise.” But even as to action
less than an outrage, “officials can still be on notice that their
50
Case: 09-40373 Document: 00511615560 Page: 51 Date Filed: 09/27/2011
No. 09-40373
conduct violates established law . . . in novel factual
circumstances.”
Safford Unified Sch. Dist. # 1 v. Redding, 557 U.S. –––, 129 S. Ct. 2633, 2643
(2009) (fourth and fifth alterations in original) (quoting Wilson v. Layne, 526
U.S. 603, 615 (1999); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th
Cir. 1990); Hope, 536 U.S. at 741); see also Brosseau v. Haugen, 543 U.S. 194,
199 (2004) (per curiam) (“Graham [v. Connor, 490 U.S. 386 (1989),] and
[Tennessee v. Garner, 471 U.S. 1 (1985)], following the lead of the Fourth
Amendment’s text, are cast at a high level of generality. Of course, in an
obvious case, these standards can ‘clearly establish’ the answer, even without
a body of relevant case law.” (citations omitted) (citing Hope, 536 U.S. at
738)). The Supreme Court’s recent decisions in Camreta v. Greene, 131 S.
Ct. 2020 (2011), and Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), do not
overrule Hope, Lanier, or any case in that line. In fact, the majority in
neither al-Kidd nor Camreta mentions them, and Justice Kennedy’s
concurrence in al-Kidd cites Lanier affirmatively as supporting the “fair and
clear warning” rule. 131 S. Ct. at 2086-87 (Kennedy, J., concurring).
Further, Justice Kennedy’s dissenting opinion in Camreta recognizes the
continuing vitality of Hope: “Our cases make clear, moreover, that ‘officials
can still be on notice that their conduct violates established law even in novel
factual circumstances.’ [Hope, 536 U.S. at 741]. That rule permits clearly
established violations to be found when extreme though unheard-of actions
violate the Constitution. See, e.g., [id.].” 131 S. Ct. at 2044 (Kennedy, J.,
dissenting).
In sum, pursuant to the line of cases described above, I believe that
certain official conduct may so obviously fall within the prohibition of a
general or abstract rule of the Constitution that any reasonable official would
have “fair warning” that his actions are unconstitutional, even absent a prior
51
Case: 09-40373 Document: 00511615560 Page: 52 Date Filed: 09/27/2011
No. 09-40373
court decision to that effect. However, I agree with Judge Benavides that this
case does not present a situation where the defendants had fair warning that
their actions were unconstitutional, for substantially the reasons given by
Judge Benavides in his opinion. Public school authorities, as state actors,
must abide by the First Amendment. Consequently, they may not adopt any
law or regulation “respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech” insofar as
schoolchildren are concerned. U.S. Const. amend. I. In our pluralistic
society, the First Amendment requires that public school officials take care
not to infringe upon the rights of parents to shape and nurture the religious
beliefs and practices of their very young children and, correspondingly, not to
adopt school regulations or policies that tend to establish a religion. At the
same time, public school officials must also respect the rights of
schoolchildren to the free exercise of religion, and to the freedom of speech.
Because the challenged state actions in this case do not appear to conflict
with any of these First Amendment commands at its core, but to fall in areas
where the commands reasonably appear to be in conflict and thus are in need
of further definition, I agree that the principals and teachers are entitled to
qualified immunity in this case.
52
Case: 09-40373 Document: 00511615560 Page: 53 Date Filed: 09/27/2011
No. 09-40373
EDWARD C. PRADO, Circuit Judge, partially concurring:
I agree that Tinker and its progeny clearly establish that elementary-
school students enjoy some degree of First Amendment rights at school. This
includes a general, but not unrestricted, right to express personal, religious
views and to be free from viewpoint discrimination. See Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). The Supreme Court was
sweeping in its pronouncement that “First Amendment rights, applied in
light of the special characteristics of the school environment, are available to
teachers and students. It can hardly be argued that either students or
teachers shed their constitutional rights to freedom of speech or expression at
the schoolhouse gate.” Id. at 506. Based on the nature of the restriction in
Tinker, a school policy forbidding students to wear armbands to protest the
Vietnam War, id. at 504, and the Court’s broad language, this declaration
surely encompasses a general prohibition on viewpoint discrimination that
extends to all students. Thus, I join Section III-A of Judge Elrod’s opinion.
Context matters significantly, however, in the intersection of the First
Amendment, elementary education, and qualified immunity. In Hazelwood,
the Supreme Court reaffirmed that the First Amendment “must be ‘applied in
light of the special characteristics of the school environment.’” Hazelwood
Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (quoting Tinker, 393 U.S. at 506).
Particularly, the Court held that schools may exercise greater control over
“activities [that] may fairly be characterized as part of the school curriculum,”
in part because of a concern that “the views of the individual speaker [might
be] erroneously attributed to the school.” Id. at 272. While the Hazelwood
case dealt with a high-school newspaper, the Third Circuit has presciently
noted that when applying the Hazelwood test “[i]n the elementary school
setting, age and context are key.” Walz v. Egg Harbor Twp. Bd. of Educ., 342
F.3d 271, 275 (3d Cir. 2003). The ability of high-school students to express
53
Case: 09-40373 Document: 00511615560 Page: 54 Date Filed: 09/27/2011
No. 09-40373
opinions about political and social issues, and to distinguish between the
speech of other students and the school, must be considered in contrast to the
abilities of much younger students. Young students may easily confuse
student advocacy in the classroom or during other school-organized activities
for school-endorsed speech. See id. at 277 (noting that “in an elementary
school classroom, the line between school-endorsed speech and merely
allowable speech is blurred, . . . for [ ] young, impressionable students”).
Lacking clearer guidance from the Supreme Court on the application of
Tinker and Hazelwood in the elementary-school context, we should tread
carefully in exposing school officials charged with making sensitive, context-
specific decisions to personal liability.
Nonetheless, the incidents described in the complaint involving
Principal Bomchill’s attempts to restrict Versher’s distribution of (1) religious
materials on the school lawn after school and (2) play tickets outside of class
to students who expressed interest do not reasonably fall into this gray area
where students might have confused Versher’s speech for that of the school,
see Hazelwood, 484 U.S. at 272, or where Versher’s actions might have
interfered with the school’s ability to preserve order or facilitate learning. See
Tinker, 393 U.S. at 514. At this stage of the proceedings, I would therefore
affirm the denial of qualified immunity on these two incidents.1
The other two incidents—involving distribution of religious materials
(1) at a “winter break party” inside the classroom and (2) at a half-birthday
party facilitated by the school—are not so clear-cut. Given the risk of young
students imputing religious speech to the school, and the similarities between
the facts in the latter incident and Walz, Bomchill’s and Swanson’s actions
1
The district court may later find that qualified immunity is warranted on one or both
of these incidents after further factual development in this case.
54
Case: 09-40373 Document: 00511615560 Page: 55 Date Filed: 09/27/2011
No. 09-40373
were not objectively unreasonable in light of clearly-established law. I would
therefore grant qualified immunity with respect to those incidents.
55
Case: 09-40373 Document: 00511615560 Page: 56 Date Filed: 09/27/2011
No. 09-40373
PRISCILLA R. OWEN, Circuit Judge, specially concurring:
I join the specially concurring opinion of Chief Judge Jones, except to
the extent that it adopts all of Part III of Judge Elrod’s dissenting opinion. I
cannot agree that the law is well-settled regarding the First Amendment
rights of elementary school children, for the reasons set forth in Judge
Benavides’ opinion. Nor do I agree with the conclusion in Part III(B) of Judge
Elrod’s opinion that the principals have waived the arguments discussed in
that section. However, I agree with much of Part III(A) of Judge Elrod’s
opinion, though I do not join that section of her opinion. I do join Parts III(C)
and III(D) of Judge Elrod’s opinion. I read Part III(D) as addressing the
following question: "Taken in the light most favorable to the party asserting
the injury, do the facts alleged show the officer's conduct violated a
constitutional right?"1
I also join in Parts II, III, and IV of Judge Benavides’ opinion.
1
Saucier v. Katz, 533 U.S. 194, 201 (2001).
56
Case: 09-40373 Document: 00511615560 Page: 57 Date Filed: 09/27/2011
No. 09-40373
JENNIFER WALKER ELROD, Circuit Judge, writing for the majority with
respect to Sections III.A, III.C, and III.D, and dissenting in remaining part:**
“The vigilant protection of constitutional freedoms is nowhere more vital
than in the community of American schools.” Keyishian v. Bd. of Regents of
Univ. of State of N.Y., 385 U.S. 589, 603 (1967) (quoting Shelton v. Tucker, 364
U.S. 479, 487 (1960)). That schools are “educating the young for citizenship is
reason for scrupulous protection of Constitutional freedoms of the individual, if
we are not to strangle the free mind at its source and teach youth to discount
important principles of our government as mere platitudes.” W. Va. State Bd.
of Educ. v. Barnette, 319 U.S. 624, 637 (1943).
This appeal may only involve two students and two principals in a
suburban school district in Texas, but it concerns conduct that “strikes at the
very heart of the First Amendment”—discrimination against student speech
solely on the basis of religious viewpoint. See Morse v. Frederick, 551 U.S. 393,
423 (2007) (Alito, J., concurring).1 Viewpoint discrimination is a “blatant”
violation of our First Amendment right to free speech, for it censors “particular
views taken by speakers on a subject.” See Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 829 (1995). At the core of the First Amendment’s
right to free speech is the right of one student to express a religious viewpoint
to another student without fear. We hold that this right—to engage in private,
non-disruptive, student speech—is protected from viewpoint discrimination
under the First Amendment, and that the right extends to elementary-school
**
Judges Smith, DeMoss, Clement, and Haynes join this opinion in full. Chief Judge
Jones and Judges Jolly and Southwick join in Sections III.A, III.C, and III.D. Judge Prado
joins in Sections III.A, III.C, IV.B, and IV.C. Judge Owen joins in Sections III.C and III.D.
1
See also Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 768 (5th Cir. 2007) (deeming
Justice Alito’s opinion controlling).
57
Case: 09-40373 Document: 00511615560 Page: 58 Date Filed: 09/27/2011
No. 09-40373
students. I would also hold that this right is clearly established under existing
law. Therefore, I would affirm the district court’s denial of the motion to dismiss
because the facts alleged in the complaint do not entitle Principals Bomchill and
Swanson to qualified immunity.
I.
On this interlocutory appeal of a motion to dismiss, we must accept as true
the facts as pleaded in the complaint, view them in the light most favorable to
the students, and draw all reasonable inferences in favor of the students. See
Brown v. Nationsbank Corp., 188 F.3d 579, 585-86 (5th Cir. 1999).
A.
This case involves two principals, Lynn Swanson and Jackie Bomchill,
two students, Stephanie Versher and Jonathan Morgan, and four separate
incidents involving the principals’ censorship of student speech.2 Three of the
incidents involved fifth-grader Stephanie and Principal Bomchill. The fourth
incident involved third-grader Jonathan and Principal Swanson. As to each of
these incidents, the complaint alleges that the principals acted not only
pursuant to a written policy, but also pursuant to unwritten “customs” and
“practices,” which treated religious viewpoints differently from all other
viewpoints, when they discriminated against religious viewpoints in favor of
non-religious ones.
Incident One
At all relevant times, Stephanie was enrolled in the fifth grade at Rasor
Elementary School, part of the Plano Independent School District (Plano ISD)
2
The complaint also alleges that the principals censored parent speech, but those
claims were not subject to the motion to dismiss and remain pending before the district court.
In addition, the complaint asserts claims against Plano ISD. A number of these claims,
including an as applied challenge to the 2004 Policy (the relevant policy in this case),
violations of the U.S. Constitution, the Texas Constitution, and the Texas Religious Freedom
Restoration Act (TRFRA), remain pending before the district court.
58
Case: 09-40373 Document: 00511615560 Page: 59 Date Filed: 09/27/2011
No. 09-40373
in Texas. In January 2004, “while at school but during non-curriculum times
and with no material and substantial disruption to the operations of the school,”
Stephanie talked to her friends and classmates about a drama being put on at
a local church. If a student expressed a desire to attend, Stephanie would give
that student a free ticket. After she had given out several tickets, Principal
Bomchill learned of her actions and instructed school officials to prevent
Stephanie from giving out any more tickets and to confiscate any tickets that she
had already given to her classmates. School officials collected and discarded
those tickets. Bomchill notified Stephanie’s mother that the tickets were not
allowed because they expressed a religious viewpoint and later told her that if
Stephanie attempted to share the tickets again on school property, Stephanie
would be “kicked out of school.” No other reason was given.
Incident Two
In the same month, on January 16, 2004, Stephanie wanted to share
brownies and two pencils with her friends in the cafeteria during her half-
birthday party. Plano ISD permits students to celebrate their birthdays with
parties at school. Students with summer birthdays may celebrate their half-
birthdays during the school year with their classmates while at school.
Celebrants often distribute snacks and small gifts to their classmates. In the
past, school officials have permitted students to share a Chinese bookmark with
a printed message on it, a Lion King ring with words and symbols, a bracelet,
and pencils with various words and symbols, including the commercial
statement “Where’s Hippo?” The parties are celebrated during “non-curriculum
times” at school—“primarily at the end of the lunch period or during a snack
break between instructional time.” For her half-birthday party, Stephanie had
brought brownies, along with two pencils, one inscribed with the word “moon”
and another inscribed with the phrase “Jesus loves me this I know for the Bible
tells me so.” Stephanie’s mother unsuccessfully attempted to meet with
59
Case: 09-40373 Document: 00511615560 Page: 60 Date Filed: 09/27/2011
No. 09-40373
Principal Bomchill prior to the party to discuss the snacks and gifts, so on the
day of the party, Stephanie’s mother took the pencils and brownies to the
school’s office and requested to see Bomchill. As she entered the school’s office,
Stephanie’s mother received a letter accusing her of distributing material to
students on school property and threatening that “law enforcement officials”
would be called to arrest her.3
Bomchill also threatened that, if Stephanie shared any more materials
that expressed a religious viewpoint while on school property, the school would
call the police and Stephanie “would be in trouble.” Bomchill forbade Stephanie
from giving her friends the “Jesus” pencils, but gave her permission to share the
brownies and the “moon” pencils. According to Bomchill, such “religious”
material (i.e., the tickets and “Jesus” pencils) could only be distributed “outside
of the school building.” Stephanie’s mother removed the “Jesus” pencils from the
tie wrapping the brownies and brought the brownies and “moon” pencils to
Stephanie so that she could share them with her friends during her half-
birthday party in the school cafeteria during lunch break. Stephanie asked her
mother what happened to the “Jesus” pencils. Her mother replied that Principal
Bomchill would not allow her to give those pencils to her friends at the party,
and that she could only share those pencils with her friends after school outside
of the building. Her mother gave her the “Jesus” pencils she had removed from
the brownies and instructed her to keep them in her backpack until school was
over.
Incident Three
3
The school’s security guard followed Stephanie’s mother as she was leaving the
school building. As she exited the building, she noticed that two police cars were driving
toward the school. When she drove away, the police followed her and pulled her over. The
officers let her go without incident.
60
Case: 09-40373 Document: 00511615560 Page: 61 Date Filed: 09/27/2011
No. 09-40373
Later that day, after school hours, outside of the school on the sidewalk
and lawn, Stephanie was talking to some of her friends. As she reached over to
one of her best friends to share one of the “Jesus” pencils, Bomchill saw
Stephanie and grabbed her shoulder. Bomchill confiscated the pencil and
scolded Stephanie. Despite Bomchill’s earlier statement that Stephanie could
share the pencils after school outside of the school building, she told Stephanie
that she could not give out the pencil on school property at all because it
expressed a religious viewpoint. Bomchill then told Stephanie’s mother that if
Stephanie tried to give out these pencils again, she would be “kicked out of
school.”
Incident Four
The remaining incident involved Principal Swanson of Thomas
Elementary School—also in Plano ISD—and one student, third-grader Jonathan
Morgan. Each elementary school classroom in Plano ISD hosts a “winter break”
party at which students, if they so choose, may exchange “goodie bags”
containing gifts. For his upcoming December 2003 “winter break” party,
Jonathan wanted to give his classmates goodie bags containing candy-cane
shaped pens along with a laminated card entitled the “Legend of the Candy
Cane” that explained the Christian origin of candy canes. Each bag would be
individually addressed to a specific classmate with a tag specifying that the gift
was from Jonathan.
Jonathan’s parents, Doug and Robin Morgan, were aware that in the past,
Plano ISD, Swanson, and other school officials at Thomas Elementary School
had prevented students from including “religious” materials in their goodie bags
for the “winter break” parties. For example, Michaela Wade, another student
at Thomas, wanted to include a pencil inscribed with the phrase “Jesus is the
Reason for the Season” in her goodie bags at a 2001 “winter break” party. School
officials would not allow her to include the pencils in her goodie bags because of
61
Case: 09-40373 Document: 00511615560 Page: 62 Date Filed: 09/27/2011
No. 09-40373
their religious message, but did permit her classmates to pass out goodie bags
containing gifts inscribed with secular phrases and symbols,4 such as snowmen
and snowflakes.
Given this history, Doug and Robin Morgan decided to meet with Swanson
several weeks before the “winter break” party, in order to determine whether she
would allow Jonathan to share his candy canes in his goodie bag. According to
the complaint, the Morgans discussed with Swanson how
students and parents are being interrogated by school officials at
the “winter break” parties as to whether or not the contents of their
gift or “goodie” bags—which they have brought to school to
distribute to their classmates during the “winter break”
party—contain any religious viewpoint, religious references or
religious message and if the students or their parents acknowledged
that the gift bags do contain religious messages or religious
viewpoint materials, the bags are then confiscated by school officials
and are banned from the classroom and prohibited from being
distributed by the students while they are on school property.
The Morgans also complained to Swanson that students and parents were not
being allowed to bring red and green materials to the “winter break” party, and
that students were not allowed to write “Merry Christmas” on greeting cards to
U.S. soldiers fighting abroad and to retirement homes. Swanson said she would
investigate these claims. Swanson also confirmed that in the past, school
officials had confiscated items deemed “religious” but had permitted “secular”
items and school officials would continue to do so in the future. When asked
about Jonathan’s intended gift, Swanson indicated that he could share the candy
4
Although in modern usage the term “secular” is often used as an antonym for “sacred”
or “religious,” scholars have observed that, originally, the term secular was actually a religious
concept. See generally Steven D. Smith, Constitutional Divide: The Transformative
Significance of the School Prayer Decisions, 38 Pepperdine L. Rev. 945, 973 (2011). Classically,
“secular” was the term used by lay people and ecclesiastics alike “to refer to the here and now
of this world, understood as a specialized area of God’s domain.” Id. (internal quotation marks
omitted). Understood in that way, even medieval governments were secular—that is, they
concerned themselves with the government of this world, and not the next.
62
Case: 09-40373 Document: 00511615560 Page: 63 Date Filed: 09/27/2011
No. 09-40373
canes with his classmates only if he removed the laminated cards containing the
religious message. Doug Morgan also asked Swanson if he could share the
Legend of the Candy Cane cards with other interested parents present at the
party. Swanson refused his request.
On the day of the party, Jonathan and his father unsuccessfully attempted
to meet with Swanson and then proceeded to Jonathan’s classroom. Jonathan’s
teacher met them at the door and prevented Jonathan from bringing his goodie
bags into the classroom to exchange with his classmates because they contained
“religious” messages. Once Swanson arrived at Jonathan’s classroom and was
apprised of the situation, she immediately informed the Morgans that Jonathan
could place his goodie bags in the school library or he could distribute his goodie
bags on a public sidewalk off of school property. Swanson later announced to
the entire school that students were not allowed to bring any outside materials
into the classrooms. Despite having just observed other outside materials in
Jonathan’s classroom, however, she never required the other students to remove
their gift bags from the classroom and place them in the library. All of
Jonathan’s other classmates were allowed to exchange gift bags inside the
classroom. Swanson only prohibited students from exchanging materials that
contained a “religious” viewpoint. Swanson allowed students to exchange other
materials, and, other than noting the “religious” nature of the materials,
Swanson offered no justification for her censorship of Jonathan’s speech.
B.
This case is before us on an interlocutory appeal of a denial of a motion to
dismiss. The students filed a complaint alleging violations of the First and
Fourteenth Amendments, as well as of Article 1, § 8 of the Texas Constitution.5
5
Specifically, the complaint alleges four federal causes of action under 42 U.S.C.
§ 1983—violations of the First Amendment’s Free Speech, Free Exercise, and Establishment
Clauses, as well as violations of the Fourteenth Amendment’s Equal Protection Clause—and
63
Case: 09-40373 Document: 00511615560 Page: 64 Date Filed: 09/27/2011
No. 09-40373
The principals filed a motion to dismiss before the district court on qualified
immunity grounds. Recognizing that “for the purposes of this motion to dismiss,
the Court must accept the allegations contained in the [complaint] that
Defendants practiced viewpoint discrimination against Plaintiffs’ religious
speech,” they argued that elementary school students do not have First
Amendment rights. The principals “contend[ed] that the First Amendment free
speech protections do not apply to elementary schools or, alternatively, that, as
a matter of law, elementary schools are permitted to practice viewpoint
discrimination so as to exclude religious messages from elementary schools.”
The magistrate judge rejected the principals’ assertion, noting that it was a
“novel and specious argument that elementary school students have no
constitutional rights in the area of free speech” and recommended that the
district court deny their motion to dismiss—a recommendation that the district
court adopted in full.
After the magistrate judge and the district court dismissed their argument
that “First Amendment free speech protections do not apply to elementary
schools,” the principals appealed to this court. On appeal, the principals urged
the panel to reverse the district court on qualified immunity because, as stated
in their issue presented, “[t]he First Amendment is not implicated by
restrictions on student-to-student distribution of non-curricular materials by
elementary school students to their classmates.” In addition, the principals
asserted that they are entitled to qualified immunity because neither “this
[c]ourt nor the Supreme Court has ever upheld a First Amendment free speech
claim by an elementary school student.” A unanimous panel of this court, like
the district court and the magistrate judge, rejected their argument, holding that
two state causes of action—violations of Title V of the Texas Civil Practice and Remedies Code
and Article 1, § 8 of the Texas Constitution.
64
Case: 09-40373 Document: 00511615560 Page: 65 Date Filed: 09/27/2011
No. 09-40373
“it has been clear for over half a century that the First Amendment protects
elementary school students from religious-viewpoint discrimination.”
The principals petitioned for rehearing en banc, arguing that it was not
clearly established that elementary school students had a First Amendment
right to be free from viewpoint discrimination, and that the prohibition on
viewpoint discrimination did not apply to religious speech. This court granted
rehearing en banc.
II.
This court has jurisdiction to review the district court’s denial of the
principals’ motion to dismiss based on qualified immunity under 28 U.S.C.
§ 1291 and the collateral-order doctrine, but only to the extent that the appeal
turns on questions of law. Mitchell v. Forsyth, 472 U.S. 511, 528-30 (1985). We
review a district court’s determination of a motion to dismiss de novo. In re S.
Scrap Material Co., 541 F.3d 584, 587 (5th Cir. 2008). For a complaint to avoid
being dismissed for failure to state a claim, the “[f]actual allegations must be
enough to raise a right to relief above the speculative level, . . . on the
assumption that all the allegations in the complaint are true (even if doubtful
in fact)” and the non-moving party must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007).
Here, the principals’ motion to dismiss before the district court was based
on a claim of qualified immunity, which “is an immunity from suit rather than
a mere defense to liability.” Mitchell, 472 U.S. at 526. Qualified immunity does
not provide officials with a license to engage in lawless conduct, however.
Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). Rather, “[w]here an official
could be expected to know that certain conduct would violate statutory or
constitutional rights, he should be made to hesitate; and a person who suffers
injury caused by such conduct may have a cause of action.” Id. “Qualified
65
Case: 09-40373 Document: 00511615560 Page: 66 Date Filed: 09/27/2011
No. 09-40373
immunity shields federal and state officials from money damages unless a
plaintiff pleads facts showing (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.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011).
Therefore, qualified immunity protects government officials performing
discretionary functions from individual liability for civil damages, but only
“insofar as their conduct does not violate clearly established . . . rights of which
a reasonable person would have known.” Harlow, 457 U.S. at 818; see also
Thompson v. Upshur Cnty., 245 F.3d 447, 456-57 (5th Cir. 2001).
At this early pleading stage, our factual universe is bounded by the four
corners of the complaint. See Brown, 188 F.3d at 585-86. In other words, we
must determine whether the principals are entitled to qualified immunity based
on the facts alleged in the complaint, which we must accept as true, drawing all
reasonable inferences in favor of the students. Id. We lack jurisdiction to
resolve disputed factual issues or consider whether such disputes might entitle
the principals to qualified immunity. See Roe v. Tex. Dep’t of Protective and
Regulatory Servs., 299 F.3d 395, 400 (5th Cir. 2002).
III.
The first prong of qualified immunity asks whether the principals’ alleged
conduct violated a statutory or constitutional right. See al-Kidd,131 S. Ct. at
2080. Under Pearson v. Callahan, courts have discretion to decide which of the
two prongs of qualified immunity to tackle first. 555 U.S. 223, 236 (2009).
Although courts should “think hard” before exercising this discretion, “it
remains true that following the two-step sequence—defining constitutional
rights and only then conferring immunity—is sometimes beneficial to clarify the
legal standards governing public officials.” Camreta v. Greene, 131 S. Ct. 2020,
66
Case: 09-40373 Document: 00511615560 Page: 67 Date Filed: 09/27/2011
No. 09-40373
2032 (2011).6 Here, the students argue that the principals violated their First
Amendment rights by discriminating against their speech because of its
religious viewpoint. Based on the facts alleged, we agree.
A.
The First Amendment protects an individual’s right to speak freely, a right
whose value lies in the fact that it defends equally all viewpoints, even
disfavored ones. Thus, viewpoint discrimination “strikes at the very heart of the
First Amendment.” Morse, 551 U.S. at 423 (Alito, J., concurring). “When the
government targets not subject matter, but particular views taken by speakers
on a subject, the violation of the First Amendment is all the more blatant.”
Rosenberger, 515 U.S. at 829. This prohibition is so well-established as to be
“axiomatic.” Id. at 828. “If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of opinion . . . .”
Barnette, 319 U.S. at 642.
The right to be free from viewpoint discrimination is no less important in
our public schools. Our public school officials “influence the attitudes of students
toward government, the political process, and a citizen’s social responsibilities.”
Ambach v. Norwick, 441 U.S. 68, 79 (1979). Our schools are tasked with
“inculcat[ing] the habits and manners of civility.” Bethel Sch. Dist. No. 403 v.
Fraser, 478 U.S. 675, 681 (1986). The habits and manners of a free people
include tolerance and consideration of a range of political and religious views.
For these reasons, the Supreme Court held over forty years ago that the
First Amendment prohibits viewpoint discrimination against all students in
public schools, absent material and substantial disruption. See Tinker v. Des
Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969). Students do not “shed their
6
At oral argument, the principals indicated that guidance in this area from our court
would be helpful to public officials.
67
Case: 09-40373 Document: 00511615560 Page: 68 Date Filed: 09/27/2011
No. 09-40373
constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Id. at 506. In Tinker, the principals of the Des Moines schools became aware of
a plan by students to wear armbands protesting the Vietnam War. Id. at 504.
They adopted a policy that any student wearing such an armband would be
asked to remove it or face suspension. Id. Seven students decided to defy the
policy, including eight-year-old Paul Tinker, eleven-year-old Hope Tinker, and
thirteen-year-old Mary Beth Tinker. Id. at 516 (Black, J., dissenting).
The Supreme Court upheld the rights of those students against the
school’s efforts to prohibit the students from speaking their minds, holding that
“[i]n the absence of a specific showing of constitutionally valid reasons to
regulate their speech, students are entitled to freedom of expression of their
views.” Id. at 511. The Court even characterized this holding as “obvious”:
If a regulation were adopted by school officials forbidding discussion
of the Vietnam conflict, or the expression by any student of
opposition to it anywhere on school property except as part of a
prescribed classroom exercise, it would be obvious that the
regulation would violate the constitutional rights of students, at
least if it could not be justified by a showing that the students’
activities would materially and substantially disrupt the work and
discipline of the school.
Id. at 513.
Thus, under Tinker, school officials may not restrict student speech on
school property solely on the basis of viewpoint, unless there is a showing of
material and substantial disruption. See id. This holding was not revolutionary,
even in 1969.7 Indeed, almost thirty years before Tinker, the Supreme Court
7
Even before Tinker was decided, this court warned: “[S]chool officials cannot ignore
expressions of feelings with which they do not wish to contend. They cannot infringe on their
students’ right to free and unrestricted expression as guaranteed to them under the First
Amendment to the Constitution, where the exercise of such rights in the school buildings and
school rooms do not materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school.” Burnside v. Byars, 363 F.2d 744, 749
68
Case: 09-40373 Document: 00511615560 Page: 69 Date Filed: 09/27/2011
No. 09-40373
recognized that school officials are subject to the Constitution, and that the Free
Speech Clause of the First Amendment is no exception. See Barnette, 319 U.S.
at 642. Barnette involved two sisters who were in elementary school. They
challenged a West Virginia statute that required every child within the State’s
public school system to salute the American flag. As practicing Jehovah’s
witnesses, the Barnett8 sisters believed that pledging allegiance to the flag was
a prohibited form of idol worship. Id. at 629. After they declined to participate
in the ceremony, the school expelled them. Id. at 630. The Supreme Court
struck down the West Virginia statute and established the bedrock principle
that the First Amendment applies to all public school students: “The Fourteenth
Amendment, as now applied to the States, protects the citizen against the State
itself and all of its creatures—Boards of Education not excepted. . . . That they
are educating the young for citizenship is reason for scrupulous protection of
Constitutional freedoms of the individual, if we are not to strangle the free mind
at its source and teach youth to discount important principles of our
government as mere platitudes.”9 Id. at 637.
Since Tinker and Barnette, the Supreme Court has consistently reinforced
the notion that First Amendment rights are of paramount importance in school
facilities. See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112
(2001) (holding that a school violated the First Amendment when it prohibited
(5th Cir. 1966).
8
We use the correct spelling of the Barnett surname, which does not match the case
caption because courts misspelled the surname as “Barnette” during the litigation.
9
Although Barnette involves compelled speech and this case involves compelled silence,
the Supreme Court has explicitly stated that any distinction between “compelled speech” and
“compelled silence” is “without constitutional significance.” See Riley v. Nat’l Fed’n of the
Blind of N.C., Inc., 487 U.S. 781, 796 (1988).
69
Case: 09-40373 Document: 00511615560 Page: 70 Date Filed: 09/27/2011
No. 09-40373
a private Christian organization for children aged six to twelve from holding
meetings at the school for the purpose of singing Christian songs, hearing Bible
lessons, and memorizing scripture); Lamb’s Chapel v. Ctr. Moriches Union Free
Sch. Dist., 508 U.S. 384, 393-94 (1993) (holding that the prohibition of Christian
perspective speech in a school facility constituted unconstitutional viewpoint
discrimination); Widmar v. Vincent, 454 U.S. 263, 265, 267 (1981) (holding that
a public university could not “close its facilities to a registered student group
desiring to use the facilities for religious worship and religious discussion”).
In its most recent school speech case, Morse v. Frederick, the Supreme
Court reaffirmed Tinker’s maxim that students do not “shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate.” Morse, 551
U.S. at 422 (Alito, J., concurring). Justice Alito’s controlling opinion observed
that giving “public school authorities a license to suppress speech . . . based on
disagreement with the viewpoint expressed” would “strike[] at the very heart of
the First Amendment.” Id. at 423. Thus, “[w]hen the government targets . . .
particular views taken by speakers on a subject, the violation of the First
Amendment is . . . blatant.” Rosenberger, 515 U.S. at 829; see also id.(“Viewpoint discrimination is . . . an egregious form of content
discrimination.”).10
10
Indeed, the Supreme Court in recent Terms has made it clear that the First
Amendment has a broad reach, limited only by narrow, traditional carve-outs from its
protection. Most recently, the Court held that California’s statute prohibiting the sale of
violent video games to minors was a content-based restriction that violated the minors’ First
Amendment rights. See Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2736, 2741-42 (2011)
(the State possesses no “free-floating power to restrict the ideas to which children may be
exposed.”). The Court concluded that laws imposing unjustified restrictions on children’s
speech and religious freedom are manifestly unconstitutional. See id. at 2736 n.3 (“In the
absence of any precedent for state control, uninvited by the parents, over a child’s speech and
religion (Justice Thomas cites none), and in the absence of any justification for such control
that would satisfy strict scrutiny, those laws must be unconstitutional.”). The Court also held
last Term that the First Amendment shields hateful protestors from tort liability for picketing
70
Case: 09-40373 Document: 00511615560 Page: 71 Date Filed: 09/27/2011
No. 09-40373
Even in the face of Barnette, Tinker, and Morse, the principals contend
that the First Amendment does not protect elementary school students from
viewpoint discrimination—an assertion belied by the facts of the cases
themselves. The Barnett sisters were in elementary school and are described
in the opinion as “little children.” Barnette, 319 U.S. at 644. And in Tinker, two
of the defying students in Tinker were eight-year-old Paul Tinker, and his sister,
eleven-year-old Hope Tinker. 393 U.S. at 516 (Black, J., dissenting). Although
they were not named plaintiffs in the litigation, the school regulation and policy
at issue in Tinker that the Court struck down applied to them, as well as to all
other students. See id. In fact, the petition for certiorari in Tinker, “urg[ed]
that the First and Fourteenth Amendments protect the right of school pupils to
express their political views all the way ‘from kindergarten through high
school.’” Id.11
Like the Supreme Court, this court has never limited the First
Amendment rights of students due to age. Most recently, in a related case, this
court applied the O’Brien “time, place, and manner” test to Plano ISD’s policy
regulating student-to-student distribution of non-curricular materials in
elementary schools—a test that would have been inappropriate had the court
funerals of service members, confirming our commitment “to protect even hurtful speech on
public issues to ensure that we do not stifle public debate.” Snyder v. Phelps, 131 S. Ct. 1207,
1220 (2011). Two Terms ago, the Court protected portrayals of animal cruelty, United States
v. Stevens, 130 S. Ct. 1577, 1592 (2010), firmly rejecting the government’s invitation to analyze
free speech on cost-benefit terms, see id. at 1585-86, and held that the government may not
suppress political speech on the basis of the speaker’s corporate identity. Citizens United v.
Fed. Election Comm’n, 130 S. Ct. 876, 913 (2010).
11
Justice Black’s dissent further illustrates that the Court’s decision in Tinker applied
to elementary school students: “[I]f the time has come when pupils of state-supported schools,
kindergartens, grammar schools, or high schools, can defy and flout orders of school officials
to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of
permissiveness in this country fostered by the judiciary.” Id. at 518 (Black, J., dissenting).
71
Case: 09-40373 Document: 00511615560 Page: 72 Date Filed: 09/27/2011
No. 09-40373
concluded that elementary school students are not protected by the First
Amendment. See Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 745 (5th Cir.
2009); see also Pounds v. Katy Indep. Sch. Dist., 730 F. Supp. 2d 636, 639 (S.D.
Tex. 2010) (rejecting a school’s effort to remove a religious Christmas card option
from the choices available to elementary school students creating cards for their
friends); cf. A.A. v. Needville Indep. Sch. Dist., 611 F.3d 248, 272-73 (5th Cir.
2010) (applying the Texas Religious Freedom Restoration Act to the claims of a
kindergarten student to vindicate the child’s rights to wear his hair long in
school). In addition to the Supreme Court and this court, numerous other
circuits have also rejected claims that the First Amendment does not apply to
elementary school students.12
12
See, e.g., Frazier v. Winn, 535 F.3d 1279, 1281-83 (11th Cir. 2008) (finding that all
Florida public school students “at all grade levels from kindergarten to twelfth grade” have
the First Amendment right not to stand during the Pledge of Allegiance); Curry v. Hensiner,
513 F.3d 570, 576-77 (6th Cir. 2008) (applying Hazelwood’s First Amendment framework in
the elementary school setting); Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 625-29,
633 (2d Cir. 2005) (applying the Hazelwood framework in the kindergarten setting to conclude
that certain speech was “school-sponsored” but nevertheless holding that “a manifestly
viewpoint discriminatory restriction on school-sponsored speech is, prima facie,
unconstitutional, even if reasonably related to legitimate pedagogical interests”); Hosty v.
Carter, 412 F.3d 731, 735 (7th Cir. 2005) (en banc) (“The Supreme Court itself has established
that age does not control the public-forum question. . . . [N]o public school, of any
level—primary, secondary, or post-secondary—may discriminate against religious speech in
a public forum (including classrooms made available to extracurricular activities) . . . .
Hazelwood’s framework applies to . . . elementary and secondary schools.” (citations omitted));
Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 280 (3d Cir. 2003) (“[E]lementary school
students retain certain First Amendment rights of expression.”); Walker-Serrano v. Leonard,
325 F.3d 412, 417 (3d Cir. 2003) (concluding that although age is a factor, “this calculus does
not [necessarily] mean that third graders do not have First Amendment rights under Tinker”);
Brown v. Gilmore, 258 F.3d 265, 278 (4th Cir. 2001) (“Despite language in Supreme Court
precedent recognizing the impressionability of elementary school children . . . nothing the
Court has said ‘suggest[s] that, when the school was not actually advancing religion, the
impressionability of students would be relevant to the Establishment Clause issue.’” (quoting
Good News Club, 533 U.S. at 116); Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1538
(7th Cir. 1996) (recognizing that “religious speech cannot be suppressed solely because it is
religious . . . , a principle that makes sense in the elementary school environment”); Hedges
v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1298 (7th Cir. 1993) (“[N]othing in
72
Case: 09-40373 Document: 00511615560 Page: 73 Date Filed: 09/27/2011
No. 09-40373
B.
The principals have raised a number of new arguments before the en banc
court; all of them are waived. Our well-established rule is that “arguments not
raised before the district court are waived and will not be considered on appeal.”
Celanese Corp. v. Martin K. Eby Const. Co., 620 F.3d 529, 531 (5th Cir. 2010); see
also French v. Allstate Indem. Co., 637 F.3d 571, 582-83 (5th Cir. 2011). That
principle is especially relevant when a case reaches en banc consideration. See
Franks Inv. Co. LLC v. Union Pacific R. Co., 593 F.3d 404 (5th Cir. 2010) (en
banc) (observing that “[t]oday is too late” to consider a theory raised for the first
time en banc) (citing United States v. Brace, 145 F.3d 247, 250 (5th Cir. 1998)
(en banc); see also United States v. Lucas, 499 F.3d 769, 792 (8th Cir. 2007)
(Beam, J., dissenting) (“[C]onsideration of these new issues for the first time by
the en banc court will have the effect of making the district court trial and the
three-judge panel’s consideration of the issues asserted in the first appeal merely
a ‘tryout on the road,’ leaving open the option of presenting a newly created
script when the en banc court becomes the intended audience.”).
The sole question properly before this court is the only one the principals
raised before the panel: Is it clearly established that elementary school students
have First Amendment rights? Throughout this litigation, the principals have
insisted that the answer to that question is “no.” Thus, according to the
principals, because “First Amendment free speech protections do not apply to
elementary schools,” their decision to discriminate solely on the basis of religious
viewpoint was permissible.
This broad dismissal of the elementary school students’ free speech
rights—that, simply put, they have none—has been at the core of the principals’
the [F]irst [A]mendment postpones the right of religious speech until high school.”).
73
Case: 09-40373 Document: 00511615560 Page: 74 Date Filed: 09/27/2011
No. 09-40373
defense from the very beginning of this case. They pursued that same argument
in their motion to dismiss,13 in their reply to plaintiffs’ response to the motion to
dismiss,14 in their supplement to their motion to dismiss,15 in their reply to
plaintiffs’ response to defendant’s supplement,16 in their objections to the
magistrate’s report,17 in their reply to plaintiffs’ response to their objections,18
in their brief on appeal,19 and in their reply brief on appeal.20 When asked at
oral argument whether their argument was that “elementary school kids do not
13
“[N]either the United States Supreme Court nor the Fifth Circuit has ever held that
the First Amendment free speech protections apply to elementary schools such that it is
unconstitutional for public officials to practice viewpoint discrimination against religious
speech in elementary schools.” Mot. to Dismiss at 2.
14
“The most obvious and important ‘special characteristic’ of elementary schools is the
tender age of the students.” Reply to Pls. Resp. to Mot. to Dismiss at 2.
15
“Neither the Supreme Court nor the Fifth Circuit has ever upheld a First
Amendment free speech claim by an elementary school student.” Supp. to Mot. to
Dismiss at 1.
16
“[E]lementary school students do not have a First Amendment free speech right to
distribute non-curricular materials to their classmates during the school day . . . .” Defs. Reply
to Pls. Response to Supp. Mot. to Dismiss at 5.
17
“[N]either the Supreme Court nor the Fifth Circuit has ever extended the First
Amendment ‘freedom of speech’ to the distribution of non-curricular materials in public
elementary schools . . . .” Defs. Obj. to Magistrate’s Rep. at 2.
18
“[P]ublic elementary school children do not have a constitutionally protected right
to distribute non-curricular materials to other students at school . . . .” Defs. Reply to Pls.
Resp. To Obj. to Magistrate’s Rep. at 1.
19
“[T]here have been no decisions from this Court holding that First Amendment free
speech protections apply in public elementary schools.” Appellants’ Br. at 28. In addition, the
issue statement from their opening brief on appeal reads: “[T]he First Amendment free speech
clause is not implicated by restrictions on elementary school student-to-student distribution
of non-curricular materials.”
20
“The tender age of elementary schoolchildren and the unique role their schools play
in nurturing them counsels strongly against such an extension of the First Amendment.”
Appellants’ Reply Br. at 1.
74
Case: 09-40373 Document: 00511615560 Page: 75 Date Filed: 09/27/2011
No. 09-40373
have a First Amendment right,” their counsel responded, “Yes.” Thus, at every
stage before en banc, the principals have advanced the same qualified-immunity
argument. Adopting the maxim that the simplest explanation is likely to be the
correct one, that bold strategy was probably not the result of inartful briefing.
After all, they made the same argument before a different panel of this court.
See Morgan, 589 F.3d at 744 (“Defendants Lynn Swanson and Jackie Bomchill,
Principals at Thomas Elementary School and Rasor Elementary School, urge
that the First Amendment does not apply to elementary school students.”), cert.
denied, 130 S. Ct. 3503 (2010). Besides, had they not pursued this strategy,
they would have been stuck defending blatant viewpoint discrimination.
Whatever the reason, we should hold the principals to the position they
took before every court that has decided this case to date. Limited to the
question properly before this court, the answer is clear: elementary school
students do have First Amendment rights under clearly established law. See
supra Section III.A. The magistrate judge, the district court, and a unanimous
panel of this court, at this 12(b)6) stage, agreed. Every member of this court also
agrees, and no circuit has ever held otherwise.21 On this basis alone, I would
affirm the district court’s denial of the motion to dismiss.
C.
Nevertheless, because a majority of this court would not find waiver, we
must consider the principals’ other en banc arguments. The principals contend
that one of the limited exceptions that the Supreme Court has carved out to
students’ First Amendment speech rights arguably applies here, and therefore
21
At oral argument before the panel, counsel for the principals could not identify any
case holding that elementary students have no First Amendment rights. Even where other
circuits have placed restrictions on student speech, they have acknowledged that elementary
school students have First Amendments rights. See supra n.11.
75
Case: 09-40373 Document: 00511615560 Page: 76 Date Filed: 09/27/2011
No. 09-40373
their decision to restrict speech was permissible. The Court has delineated five
narrow exceptions for when school officials may restrict specific student speech:
School regulation of student speech can be justified on five . . .
grounds. If the speech is disruptive (Tinker), lewd (Fraser), school-
sponsored (Hazelwood), or promoting drug use (Morse), schools may
in some instances restrict specific student speech. Student speech
can also be regulated so long as the regulation is viewpoint- and
content-neutral (Canady).
Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 509 (5th Cir. 2009).
However, of these five grounds, the Court has only expressly held that one
permits school officials to engage in viewpoint discrimination—where the
student speech is substantially and materially disruptive. See Tinker, 393 U.S.
at 513.22 The principals here do not contend that the speech at issue in the four
incidents was substantially and materially disruptive, lewd, or promoted drug
use. More importantly, there are no factual allegations in the complaint to
support such a contention. Instead, the principals assert that the speech is
“arguably” school-sponsored, or in the alternative, that the school officials
discriminated based on viewpoint in order to avoid an Establishment Clause
violation. The Supreme Court has not determined whether school officials may
engage in viewpoint discrimination in cases where the speech is school-
sponsored23 and in Good News Club, the Court expressly left open that same
22
In Morse, the Court allowed school officials to restrict speech that promoted “illegal
drug use.” 551 U.S. at 403. The Court made clear that this was “not a case about political
debate over the criminalization of drug use or possession,” nor did the speech convey “any sort
of political or religious message.” Id. at 402-403. Indeed, Justice Alito observed that the
“special characteristic that is relevant in this case is the threat to the physical safety of
students.” Id. at 424.
23
Although some of our sister circuits have intimated that viewpoint discrimination
may be constitutionally permissible in the context of school-sponsored speech, neither our
circuit nor the Supreme Court has ever held as much. Indeed, given the Supreme Court’s
harsh criticisms of viewpoint discrimination—which it has labeled a “blatant” violation of the
Free Speech Clause—we have serious doubts about the constitutionality of the practice, even
76
Case: 09-40373 Document: 00511615560 Page: 77 Date Filed: 09/27/2011
No. 09-40373
question as to avoiding Establishment Clause violations. See 533 U.S. at 113(noting that “it is not clear whether a State’s interest in avoiding an
Establishment Clause violation would justify viewpoint discrimination.”).
Regardless, the speech at issue here is neither actually nor “arguably” school-
sponsored, nor does it implicate the Establishment Clause.
Hazelwood School District v. Kuhlmeier sets out the parameters for what
constitutes school-sponsored speech. See 484 U.S. 260 (1988). In Hazelwood, the
school principal censored two articles in the school newspaper: one concerning
students’ experiences with pregnancy, and the other regarding the impact of
divorce on students at the school. Id. at 263. The school newspaper was funded
by the school, and the school’s journalism teacher “selected the editors of the
newspaper, scheduled publication dates . . . edited [the] stories, selected and
edited the letters to the editor, and dealt with the printing company,” and had
“final authority with respect to almost every aspect of the production and
publication of [the paper], including its content.” Id. at 268 (quoting Kuhlmeier
v.Hazelwood Sch. Dist., 607 F. Supp. 1450, 1453 (E.D. Mo. 1985)). School policy
expressly provided that the publication was “developed within the adopted
in the Hazelwood context. See Rosenberger, 515 U.S. at 828-29. “Schools cannot
constitutionally interpret their basic educational mission as requiring the suppression of
religious speech.” Douglas Laycock, High-Value Speech and the Basic Educational Mission
of a Public School: Some Preliminary Thoughts, 12 Lew. & Clark L. Rev. 111, 124 (2008).
Allowing schools to suppress particular viewpoints would teach students a distorted and
dangerous lesson about the relationship between citizen and government. See Ambach, 441
U.S. at 79 (school officials “influence the attitudes of students toward government, the political
process, and a citizen’s social responsibilities”). Students would learn that the government
favors certain viewpoints over others and that religious viewpoints are the most disfavored of
all. See Lubbock Civil Liberties Union v. Lubbock Indep. Sch. Dist., 680 F.2d 424, 426 (5th Cir.
1982) (reh’g en banc denied) (Reavley, J., dissenting) (“We should not forget, however, that the
young student may also be given the impression that our government and the courts and the
schools are hostile to all religious belief and practice.”). Nevertheless, we need not resolve the
question to decide this case, as the speech here is private, non-disruptive, non-curricular
student-to-student speech, rather than school-sponsored speech.
77
Case: 09-40373 Document: 00511615560 Page: 78 Date Filed: 09/27/2011
No. 09-40373
curriculum and its educational implications in regular classroom activities.” Id.(internal quotation marks ommitted).
The Supreme Court observed that the question at issue in Hazelwood was
not about an “educators’ ability to silence a student’s personal expression that
happens to occur on school premises,” expression which is protected under
Tinker, but about “whether the First Amendment requires a school affirmatively
to promote particular student speech.” Id. at 270-71. The Court held that
educators may exercise greater control over “these activities [that] may fairly be
characterized as part of the curriculum,” which are “supervised by faculty
members,” and designed to impart particular knowledge or skills so “that the
views of the individual speaker may not be erroneously attributed to the school,”
such as in a school newspaper or a school play. Id. at 271. The Court set out
this exception to the First Amendment’s protection of student speech: “[W]e hold
that educators do not offend the First Amendment by exercising editorial control
over the style and content of student speech in school-sponsored expressive
activities so long as their actions are reasonably related to legitimate
pedagogical concerns”—activities such as a “school-sponsored publication” or a
“theatrical production.” Id. at 273.
Like all exceptions to the First Amendment’s protections, the Hazelwood
exception should be construed narrowly.24 It applies only where the speech is
24
Indeed, the Supreme Court in recent years has made it clear that the First
Amendment has a broad reach, limited only by narrow, traditional carve-outs from its
protection. This year, the Court held that California’s statute prohibiting the sale of violent
video games to minors was a content-based restriction that violated the minors’ First
Amendment rights. See Brown v. Entm’t Merchs. Ass’n,131 S. Ct. 2729, 2736, 2741-42 (the
State possesses no “free-floating power to restrict the ideas to which children may be
exposed”). The Court concluded that laws imposing unjustified restrictions on children’s
speech and religious freedom are manifestly unconstitutional. See id. at 2736 n.3 (“In the
absence of any precedent for state control, uninvited by the parents, over a child’s speech and
religion (Justice Thomas cites none), and in the absence of any justification for such control
that would satisfy strict scrutiny, those laws must be unconstitutional.”). The Court also held
78
Case: 09-40373 Document: 00511615560 Page: 79 Date Filed: 09/27/2011
No. 09-40373
school-sponsored, a determination that turns on whether “the views of the
individual speaker [might be] erroneously attributed to the school.” Id. at 271.
Thus, Hazelwood “allows a school to regulate what is in essence the school’s own
speech, that is, articles that appear in a publication that is an official school
organ.” Morse, 551 U.S. at 423 (Alito, J., concurring). Similarly, the Court’s
Establishment Clause jurisprudence draws a sharp distinction “between
government speech endorsing religion, which the Establishment Clause forbids,
and private speech endorsing religion, which the Free Speech and Free Exercise
Clauses protect.” See Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990). “The
proposition that schools do not endorse everything that they fail to censor is not
complicated.” Id.In short, whatever latitude school officials may have with respect to
school-sponsored speech under Hazelwood, or with government-endorsed speech
under the Establishment Clause—that is, speech that could be erroneously
attributed to the school—outside of that narrow context, viewpoint
discrimination against private, student-to-student, non-disruptive speech is
forbidden by the First Amendment.
D.
We now consider the allegations in the complaint under this framework.
Under Hazelwood and Morse, the four incidents at issue in this case, based on
that the First Amendment shields hateful protestors from tort liability for picketing funerals
of service members, confirming our commitment “to protect even hurtful speech on public
issues to ensure that we do not stifle public debate.” Snyder v. Phelps, 131 S. Ct. 1207, 1220
(2011). Last year, the Court protected portrayals of animal cruelty, United States v. Stevens,
130 S. Ct. 1577, 1592 (2010), firmly rejecting the government’s invitation to analyze free
speech on cost-benefit terms, see id. at 1585-86, and held that the government may not
suppress political speech on the basis of the speaker’s corporate identity. Citizens United v.
Fed. Election Comm’n, 130 S. Ct. 876, 913 (2010).
79
Case: 09-40373 Document: 00511615560 Page: 80 Date Filed: 09/27/2011
No. 09-40373
the facts alleged in the complaint, do not involve “school-sponsored” speech.
Accordingly, the principals were not permitted to discriminate on the basis of
viewpoint; yet, in each incident the principals allegedly censored speech solely
because it expressed a religious message.25
The first incident—Stephanie’s sharing pencils with her friends after
school on the sidewalk—is a far cry from the concerns the Hazelwood Court had
about the “First Amendment [requiring] a school affirmatively to promote
particular student speech.” Principal Bomchill’s decision to grab Stephanie and
confiscate the pencils after school and threaten her with expulsion is exactly the
kind of action prohibited by Tinker—a school official’s “silenc[ing] a student’s
personal expression that happens to occur on school premises.” Stephanie’s
sharing of pencils with friends after school could in no way be construed as
25
Since the district court’s opinion denying qualified immunity, the district court had
upheld the relevant written policy at issue here—the Plano ISD 2004 policy—against a facial
constitutional challenge. The principals now contend that, because the complaint alleges that
the principals acted in conformity with the written policy, their actions must have been
constitutional. However, this disregards the fact that the complaint also alleges that the
principals acted pursuant to unwritten customs, and practices. Indeed, the complaint alleges
that the unwritten policy, custom, and practice was to apply the written policy only to religious
matters, thereby applying a facially neutral policy in a discriminatory fashion. No court has
addressed whether the school officials’ unwritten customs and practices unlawfully
discriminated against religious viewpoints, much less whether the principals applied the
policy illegally. As the district court found when it adopted the magistrate judge’s
recommendation, “Plaintiffs’ motion does not seek summary judgment on the application of
the 2004 Policy to Plaintiffs. Similarly, Plano ISD’s cross-motion only addresses the facial
constitutionality of the 2004 Policy. Thus, the only matter the Court will consider is whether
the 2004 policy was facially constitutional.” As for any such contention that the principals
were relying on school attorneys, there is nothing in the complaint to support such a
contention, and at this 12(b)(6) stage, we cannot consider facts outside the complaint.
In addition, this court has upheld as facially valid the time, place, and manner
restrictions in a revised 2005 policy, which does not apply to the allegations in this case. See
Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 745 (5th Cir. 2009), cert. denied, 131 S. Ct.
3503(2010). It is well-settled that reasonable time, place, and manner restrictions, which are
content and viewpoint neutral, are permitted under the First Amendment. See Canady, 240
F.3d at 442-43.
80
Case: 09-40373 Document: 00511615560 Page: 81 Date Filed: 09/27/2011
No. 09-40373
speech that could be erroneously attributed to the school and therefore, under
Hazelwood, is not school-sponsored speech. Moreover, Bomchill told Stephanie
and her mother that her “Jesus” pencils were not permitted because they
expressed a religious viewpoint.
Of the remaining three incidents, two of them also involved
Stephanie—one involving sharing pencils at lunch, and one involving talking to
her friends about a local church play and handing out tickets at school, but at
non-curricular times. The facts alleged do not indicate that Stephanie’s personal
expression could be erroneously attributed to the school by Stephanie’s friends.
In addition, the only reason provided by school officials for restricting the speech
at issue is that students may not express a religious viewpoint on school
property. For example, Bomchill allowed Stephanie to share a “moon” pencil at
lunch break but not a “Jesus” pencil. Moreover, in the past, at half-birthday
parties, school officials have permitted pencils with snowmen and snowflakes,
commercial speech, such as a Lion King ring with words and pencils with the
statement “Where’s Hippo?,” but here they discriminated against Stephanie’s
“Jesus” pencil.
As for the incident involving a “winter break” party, school officials
prevented Jonathan Morgan from giving some of his friends candy-cane shaped
pens with a card explaining the Christian origin of candy canes. Jonathan’s
sharing of candy-cane shaped pens could not be erroneously attributed to the
school by his friends and classmates. These were his gifts. They were
individually marked with his name and the recipient’s name. In addition,
Jonathan Morgan would have been allowed to share his candy-cane pen in his
goodie bag only if he removed the attached card containing a religious message.
The only reason Swanson gave Jonathan for restricting his speech is that
students may not express a religious viewpoint on school property.
81
Case: 09-40373 Document: 00511615560 Page: 82 Date Filed: 09/27/2011
No. 09-40373
None of the speech at issue could be fairly characterized as “in essence the
school’s own speech” or “government speech endorsing religion.” Therefore, none
of Hazelwood’s concerns are implicated here, and at this stage of the
proceedings, the district court and the panel opinion correctly held that the
school-sponsored exception does not apply.
For the same reasons, the students’ speech could not have presented
Establishment Clause concerns.26 If “no one would reasonably believe that [the
speech at issue] bore the school’s imprimatur,” Morse, 551 U.S. at 405, one would
be hard pressed to claim that the speech could be perceived as the government’s
endorsing religion. See Mergens, 496 U.S. at 250. Indeed, a child’s private
conversation and decision to share a pencil, a ticket, or a candy-cane shaped pen
with another child are in no way similar to students’ reading prayers “over the
public address system at home football games.” See Doe v. Santa Fe Indep. Sch.
Dist., 168 F.3d 806, 810 (5th Cir. 1999), aff’d, 530 U.S. 290 (2000).
In Santa Fe, this court held that prayers over the public address system at
football games implicated the Establishment Clause, where the school district
held an election to determine which student would deliver the prayer,
“maintained complete control over the programs and facilities during the reading
of the prayers, including the ability to mute the microphone or remove the
speaker,” and screened the text of the speech for “content prior to the ceremony.”
Id. None of the speech at issue here was completely controlled by the school, or
delivered in such a way as to “bear the imprimatur of the school” such that one
would reasonably perceive the student speech as the government’s conveying a
26
The principals contend that elementary school students are more impressionable and
therefore this case involves heightened Establishment Clause concerns. This is without merit.
The Supreme Court has held that the Establishment Clause is not “a modified heckler’s veto,
in which a group’s religious activity can be proscribed on the basis of what the youngest
members of the audience might misperceive.” Good News Club, 533 U.S. at 119.
82
Case: 09-40373 Document: 00511615560 Page: 83 Date Filed: 09/27/2011
No. 09-40373
“message that religion or religious belief is favored or preferred.” See Cnty. of
Allegheny v. ACLU, 492 U.S. 573, 593 (1989) (quoting Wallace v. Jafree, 472 U.S.
38, 70 (1985) (O’Connor, J., concurring). Moreover, this is not a case where a
government employee is selecting the religious message, see Engel v. Vitale, 370
U.S. 421, 422-23 (1962), delivering the religious message, see Sch. Dist. of
Abington Twp. v. Schempp, 374 U.S. 203, 207-08 (1963), endorsing the religious
message, Wallace v. Jaffree, 472 U.S. 38, 56-59 (1985), or giving an otherwise
private speaker preferential access to a forum, see Stone v. Graham, 449 U.S. 39,
42 (1980) (per curiam). In short, this is not a case about the government’s
endorsing religion. Accordingly, there is no Establishment Clause concern at
issue in this case.27
In short, what one child says to another child is within the protection of
the First Amendment unless one of the narrow exceptions discussed above
applies, and none does in this case. Accordingly, we hold that the First
Amendment protects all students from viewpoint discrimination against private,
non-disruptive, student-to-student speech. Therefore, the principals’ alleged
27
The First Amendment “mandates governmental neutrality” not only among different
religions, but also “between religion and non-religion.” McCreary Cnty. v. ACLU, 545 U.S. 844,
860 (2005). Accordingly, school officials need not fear an Establishment Clause violation from
allowing schoolchildren with religious views to speak under the same reasonable, viewpoint-
neutral terms as other students. See Hedges, 9 F.3d at 1299 (“[p]ermitting individual students
to pass out literature with religious messages, at times and places they could pass out
literature with political or artistic themes, does not entail a . . . preference” and instead
reflects “neutrality toward religion.”). In contrast, a school’s efforts to expunge all religious
discourse from students’ private interactions represents a school-sponsored message of
hostility toward all religions. See McCollum v. Bd. of Educ., 333 U.S. 203, 211-12 (1948)
(“hostility to religion [and] religious teachings” is “at war with our national tradition as
embodied in the First Amendment’s guaranty of the free exercise of religion”); cf. Michael W.
McConnell, Religion and Its Relation to Limited Government, 33 Harv. J. L. & Pub. Pol’y 943,
952 (2008) (“For the Framers, disestablishment and free exercise were no more intended to
depress religion or to secularize society than free enterprise was intended to depress the
economy.”).
83
Case: 09-40373 Document: 00511615560 Page: 84 Date Filed: 09/27/2011
No. 09-40373
conduct—discriminating against student speech solely on the basis of religious
viewpoint—is unconstitutional under the First Amendment.28
IV.
Because we have concluded that the principals’ alleged conduct violated
the students’ First Amendment rights, we must proceed to the second prong of
qualified immunity, which asks whether those rights were clearly established
at the time of the incidents. See al-Kidd,131 S. Ct. at 2080.
A.
“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. See id.; see also
Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2643 (2009) (“To be
established clearly, however, there is no need that the ‘very action in question
[have] previously been held unlawful.’”) (quoting Wilson v. Layne, 526 U.S. 603,
615 (1999))). Rather, “[t]he central concept is that of ‘fair warning’: The law can
be clearly established despite notable factual distinctions between the
precedents relied on and the cases then before the Court, so long as the prior
28
To the extent that the principals characterize the speech as “proselytizing,” such a
characterization does not affect our holding that religious viewpoint discrimination is not
permissible against private student speech, absent substantial and material disruption.
There is no such thing as “good religious speech” and “bad religious speech.” As Justice Scalia
observed in Good News Club, regardless of whether the speech is “aimed principally at
proselytizing or inculcating belief in a particular religious faith,” Rosenberger’s ban on
viewpoint discrimination applies with equal force. See Good News Club, 533 U.S. at 126(Scalia, J., concurring) (quoting Good News Club, 533 U.S. at 130 (Stevens, J., dissenting)
(observing that Rosenberger also involved proselytizing speech). Indeed, for some evangelical
Christians, proselytizing speech may be a necessary and important part of their religious
beliefs, and a complete ban of proselytizing speech may implicate their Free Exercise rights
as well.
84
Case: 09-40373 Document: 00511615560 Page: 85 Date Filed: 09/27/2011
No. 09-40373
decisions gave reasonable warning that the conduct then at issue violated
constitutional rights.” Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en
banc) (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)). In determining whether
the principals had “fair warning,” we first look to the Supreme Court and our
circuit’s precedent. See Pearson, 555 U.S. at 244. We need only consider other
circuits “in the absence of directly controlling authority.” McClendon v. City of
Columbia, 305 F.3d 314, 329 (5th Cir. 2002) (en banc); cf. Pearson, 555 U.S. at
244 (deeming it proper to consult out-of-circuit precedent where the Supreme
Court and the officials’ “own Federal Circuit had not yet ruled on the issue”).
As discussed in Part III, it is well-settled law that elementary school
students have First Amendment rights, private religious speech is fully
protected, and viewpoint discrimination is prohibited in any forum. The
Supreme Court’s decision in Tinker clearly established that viewpoint
discrimination against non-disruptive student speech on school property violates
the First Amendment rights of students. See Tinker, 393 U.S. at 513; see also
Barnette, 319 U.S. at 642. Our own circuit has already told the same Plano ISD
that “viewpoint discrimination is a clearly established violation of the First
Amendment in any forum.” Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 350
(5th Cir. 2001) (Chiu I); Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273, 280 (5th
Cir. 2003) (Chiu II). In short, the idea that students have the right to be free
from viewpoint discrimination at school is not subject to reasonable debate, and
has not been for more than four decades. A “‘reasonably competent public
official should know the law governing his conduct.’” Kinney, 367 F.3d at 349 (en
banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)). Thus, the
principals had fair, unmistakable warning that private, non-disruptive student
speech is protected from viewpoint discrimination, and that any attempts to
censor student speech should be undertaken only on the firmest of grounds.
85
Case: 09-40373 Document: 00511615560 Page: 86 Date Filed: 09/27/2011
No. 09-40373
Even if the Supreme Court’s unbroken line of decisions were somehow not
enough to give school districts fair warning that the First Amendment prohibits
viewpoint discrimination against non-disruptive, private student speech,
moreover, the Department of Education (DOE) has made clear to schools that
viewpoint discrimination against religious speech in schools is prohibited. Cf.
Hope v. Pelzer, 536 U.S. 730, 741-42 (2002) (noting that Alabama Department
of Corrections regulations and a DOJ report were capable of providing fair
warning). As DOE guidelines explained as early as 1995, settled law protected
students’ “right to distribute religious literature to their schoolmates, subject to
those reasonable time, place, and manner or other constitutionally acceptable
restrictions imposed on the distribution of all non-school literature.”29 Indeed,
Plano ISD’s own written policy in effect at the time only permits restrictions
where the speech causes material and substantial disruption, echoing the
holding in Tinker. Further, the policy does not mention religion or anything
concerning religious viewpoints.
In sum, the Supreme Court, the Fifth Circuit, and the United States
government all provided fair warning to the principals that elementary school
students have a right to be free from viewpoint discrimination. That school
29
Since 1995, the constitutional prohibition on viewpoint discrimination against
religious speech in schools has been well publicized by DOE, which has issued substantively
identical guidelines during the Bush and Clinton Administrations. The Bush Administration
in 2003 issued Guidance on Constitutionally Protected Prayer in Public Elementary and
Secondary Schools, 68 Fed. Reg. 9645 (Feb. 28, 2003). As discussed above, the Clinton
Administration issued similar guidelines in 1995, 1998, and 1999, and sent the guidelines to
every school district in the country. Both of these guidelines contain multiple explanations
and admonitions that private student religious speech at school is protected and may not be
singled out for discriminatory prohibition, in either curricular or non-curricular situations.
For example, the Clinton DOE guidelines state that school officials “may not structure or
administer such rules to discriminate against religious activity or speech,” “schools . . . may
not single out religious literature for special regulation,” and “religious messages may not be
singled out for suppression.” See http://www2.ed.gov/Speeches/08-1995/religion.html (last
visited July 11, 2011).
86
Case: 09-40373 Document: 00511615560 Page: 87 Date Filed: 09/27/2011
No. 09-40373
officials nonetheless discriminated based on viewpoint under the facts alleged
is not a failure of our precedent or that of the Supreme Court, but rather of the
officials themselves.30
As a last ditch effort, in the face of clearly established law, the principals
fall back on the argument that religious speech in the schools is a very confusing
area and that courts’ interpretations of Hazelwood have varied widely. That is,
relying on cases outside our circuit (which they characterize as broadening the
scope of Hazelwood), the principals thought that the speech at issue in the four
incidents was arguably school-sponsored. The principals argue that, because
the question of whether the First Amendment prohibits viewpoint discrimination
in the context of school-sponsored speech remains open, their alleged conduct did
not violate clearly established law.
The principals contend that because some of these cases involved “Jesus”
pencils, candy-canes, holiday parties, and religious speech, they were confused.
For example, Curry v. Hensiner, 513 F.3d 570 (6th Cir. 2008) involved candy-
cane shaped ornaments, Walz v. Egg Harbor Board of Education, 342 F.3d 271(3d Cir. 2003) involved candy canes, “Jesus” pencils, and holiday parties, Bannon
v. School District of Palm Beach County, 387 F.3d 1208, 1214 (11th Cir. 2004),
Fleming v. Jefferson Cnty. Sch. Dist., 298 F.3d 918, 930-31 (10th Cir. 2002), and
30
“[G]eneral statements of the law are . . . []capable of giving fair and clear warning,
and . . . a general constitutional rule . . . may apply with obvious clarity to the specific conduct
in question, even though the very action in question has [not] previously been held unlawful.”
Hope, 536 U.S. at 741 (quoting Anderson, 483 U.S. at 640). As such, “officials can still be on
notice that their conduct violates established law even in novel factual circumstances.” Id.Reducing the “clearly established” inquiry to asking whether “‘the very action in question has
previously been held unlawful’” places an impermissibly “rigid gloss on the qualified immunity
standard,” an approach “not consistent with [Supreme Court precedent].” Id. at 739 (quoting
Anderson, 483 U.S. at 640).
87
Case: 09-40373 Document: 00511615560 Page: 88 Date Filed: 09/27/2011
No. 09-40373
Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 628-29 (2d Cir. 2005) all
involved religious speech.
Curry, a summary judgment decision from the Sixth Circuit, involved
Christmas tree ornaments shaped like candy canes. See 513 F.3d at 574.31 In
Curry, “[a]s part of the fifth grade curriculum, students participated in an
exercise called ‘Classroom City.’” Id. “The event was designed to provide
students a variety of learning experiences including exposure to literature,
marketing, government, civics, economics, and mathematics.” Id. “The exercise
culminated in a three-day event held in the school gymnasium during which
students, using [fake money], sold goods they had produced specifically for the
event.” Id. Plaintiff’s social studies teacher managed the exercise, graded the
students, and provided them with a written assignment for “Classroom
City”—they were supposed to create, market, and sell a product. Id. Plaintiff
decided to sell Christmas tree ornaments in the shape of candy canes, which
included cards that discussed the Christian significance of the candy cane. Id.School officials prevented plaintiff from distributing the cards with the religious
message. Id. at 573. Given that the speech in Curry took place within the
ambit of the curriculum, was a graded assignment, was managed by faculty, was
designed to impart knowledge and skills, and could be “perceived as bearing the
imprimatur of the school,” the Sixth Circuit held that it was school-sponsored
speech under Hazelwood. See Curry, 513 F.3d at 577.
Walz, a summary-judgment case out of the Third Circuit, involved pencils
with a religious message at a Parent-Teacher Organization (PTO) party. In
Walz, the school district of Egg Harbor Township held seasonal, in-class parties
several times a year, which were organized by the teachers and parents. 342
31
This is an example of a case the principals could not have relied upon. The Sixth
Circuit decided Curry in 2008, a full four years after the last incident at issue in this case.
88
Case: 09-40373 Document: 00511615560 Page: 89 Date Filed: 09/27/2011
No. 09-40373
F.3d at 273. Just prior to Easter, the school held a party in a kindergarten class
where the children’s parents were encouraged to donate gifts to the PTO. Id.
The gifts were not distributed by students, but through the PTO. Id. The PTO
collected all the gifts and distributed them to the students at a school-planned,
highly structured, highly supervised, and regulated holiday party. Id.
Moreover, the school did not permit the distribution of “items with
political, commercial, or religious references” in “class during school hours,” such
as a pencil that stated “Home Depot” or “Support the [New Jersey Education
Association].” Id. at 173. The school officials in Walz were concerned that the
PTO’s distribution of gifts would be perceived as the school’s endorsing a
particular message. Dr. Kelpsh, the superintendent of the Board of Education
(BOE), stated that the intent behind the limited gift distribution policy “was to
ensure that no confusion about the origin of any distributed gifts with corporate,
political, or religious messages, and also that the BOE did not want anyone to
mistakenly believe that the school was endorsing any particular message.”
Walz, 187 F. Supp. 2d at 235-36 (citing Kelpsh Dep., Tr. 74-77; Walz Dep., Tr.
60:5-17.). Thus, in Walz, students were not permitted to distribute any gifts
with any particular message or viewpoint. The conduct in Walz was viewpoint
neutral. Walz held that school officials did not run afoul of student
constitutional rights when they imposed subject-matter—not viewpoint-
based—restrictions on student speech in the context of a “clearly defined,”
“organized,” and “pedagogically-based” classroom activity. See Walz, 342 F.3d
at 277-80 (citing Hazelwood, 484 U.S. at 273); see also Canady, 240 F.3d at 442-
43.
At the party, kindergartner Daniel Walz “skirted the structure of this
organized activity by bringing gifts that promoted a specific religious message,”
specifically, pencils that said “Jesus [Loves] The Little Children.” Id. at 279.
89
Case: 09-40373 Document: 00511615560 Page: 90 Date Filed: 09/27/2011
No. 09-40373
Daniel gave them out himself rather than going through the PTO system.
Daniel’s teacher confiscated the pencils and the superintendent determined that
the pencils could not be distributed because the children and parents “might
perceive the message as being endorsed by the school.” Id. The Third Circuit
agreed, holding that the school officials were permitted to restrict the speech at
issue because this was not a situation where one student “turned to his
classmates during snack time and stated, ‘Jesus loves the little children,’” a
situation where the student speaks as an individual. Id. Rather, this was a case
where a student “controvert[ed] the rules of a structured classroom activity with
the intention of promoting an unsolicited message.” Id. at 280.
The Third Circuit in Walz based its decision on extensive summary
judgment evidence, and held that the speech at issue was school-sponsored
because “[t]he District Court found ‘abundant evidence that the school seasonal
parties for these young children were meant to have an educational component,
and also that they were highly structured, supervised, and regulated.’” Walz, 342
F.3d at 279; see also id. at 280 (“The seasonal holiday parties were instructional
activities, as much a part of the curriculum as ‘show and tell’ or art class.”). As
the Walz court observed, “several factors combined to demonstrate school
control: the teacher’s role in planning the holiday parties, the PTO’s control over
the gift distribution, and the directive of generic gifts.” Id. at 279.
Our sister circuits’ decisions in Bannon, Fleming, and Peck all upheld
some restrictions on religious speech in the school-sponsored context, either at
summary judgment or after a full trial on the merits. For example, in Bannon,
the court held that school murals painted by students appearing in “prominent
locations in the school,” including next to the school’s main office, and in a main
hallway, were considered to be school-sponsored because they were “allowed to
become a part of the school itself, which in this case, [they] did.” See Bannon,
90
Case: 09-40373 Document: 00511615560 Page: 91 Date Filed: 09/27/2011
No. 09-40373
387 F.3d at 1214; see also Fleming, 298 F.3d at 930-31 (same with respect to
school tiles). Likewise, in Peck, the court found the speech to be school-
sponsored where kindergarten students created posters as an assignment for
class, the school had guidelines about what the posters were supposed to be, and
the posters were exhibited prominently at a school assembly, not unlike the
school-regulated, edited, and featured school newspaper in Hazelwood.32
While these cases involved religious speech, just as our case does, they
have no legal effect on the outcome of this case. Under McClendon, we need not
consider any of them because the contours of the Hazelwood exception were
clearly established by the Supreme Court sixteen years ago in Hazelwood itself.
305 F.3d at 329. Under Hazelwood’s well-established rule, none of the speech
at issue here is even arguably school-sponsored. Even assuming we should
consider these cases, none of them change the fact that the student speech
alleged here was quintessentially private speech.33 Unless we accept the
simplistic proposition that anything involving religion is confusing, and that the
words “candy cane” or “holiday party” are talismanic, these cases do not vitiate
the fair warning provided by the Supreme Court, this court and the U.S.
government. None of the reasoning in these cases, all applying Hazelwood (some
32
See 426 F.3d at 621-22; see also Busch v. Marple Newtown Sch. Dist., 567 F.3d 89,
92, 95-98, 100 (3rd Cir. 2009), cert. denied, 130 S. Ct. 1137 (2010) (upholding an elementary
school’s restrictions on a mother’s efforts to read aloud from Bible scripture to students in her
son’s kindergarten classroom during a “curricular” activity); Bell v. Little Axe Indep. Sch. Dist.
No. 70, 766 F.2d 1391, 1397, 1404-05 (10th Cir. 1985) (forbidding school from holding teacher-
supervised meetings on school premises during school hours where meetings included prayer,
songs, and speakers who, appearing “usually at the behest of teachers,” discussed “how God
and Christianity had benefitted the speaker in his or her daily life”).
33
Many of these cases were decided after the relevant actions were taken and thus,
could not have been relied upon by school administrators at the time. See Al-Kidd,131 S. Ct.
at 2083 (determining clearly established law by examining law “at the time of the challenged
conduct”).
91
Case: 09-40373 Document: 00511615560 Page: 92 Date Filed: 09/27/2011
No. 09-40373
more broadly than others), affects the speech at issue here.34 In each of the four
incidents, the allegations, which must be taken as true, show that the speech
was private, student-to-student speech and was impermissibly censored solely
on the basis of religious viewpoint.
B.
Principal Bomchill had fair warning that preventing Stephanie from
sharing a pencil with one of her friends after school hours, outside of school on
the sidewalk and lawn solely on the basis of religious viewpoint is prohibited by
the First Amendment. See Tinker, 393 U.S. at 513. A reasonable official in
Bomchill’s position would not have been confused about the nature of the speech
at issue here: neither is it school-sponsored nor does it implicate the
Establishment Clause. This was a situation where a single student was sharing
a pencil with another student; the school was simply not involved. See
Hazelwood, 484 U.S. at 270-71 (The First Amendment protects “a student’s
personal expression that happens to occur on school premises”). None of the
Hazelwood factors apply here: given that the speech took place outside of the
school building after school hours, the speech was not controlled by the school,
part of the school curriculum, highly supervised by faculty members, or
reasonably related to legitimate pedagogical concerns. Most importantly, unlike
the school murals in Bannon, which had become “part of the school itself,” or the
school newspaper in Hazelwood, there was no reasonable concern that
Stephanie’s speech “might be erroneously attributed to the school.” See id. at
288. Therefore, based on the facts alleged, I would affirm the motion to dismiss
34
Our discussion of our sister circuits’ interpretation of Hazelwood does not in any way
suggest our approval of their application of the school-sponsored exception, only that even a
broad application of this exception is not relevant to the facts alleged here. Moreover, we need
not comment on the correctness of these cases because, as discussed above, under McClendon,
we have no reason to consider them.
92
Case: 09-40373 Document: 00511615560 Page: 93 Date Filed: 09/27/2011
No. 09-40373
denying qualified immunity to Bomchill as to this incident because a reasonable
official would have known that restricting Stephanie’s private, non-disruptive,
non-curricular, student-to-student speech after school, outside of school on the
sidewalk, is not permitted under the First Amendment.
C.
Similarly, Bomchill had fair warning that preventing Stephanie from
sharing tickets with friends to a drama at a local church and directing
Stephanie’s teacher to demand the return of tickets already given out to other
students, “while at school but during non-curriculum times” is not permitted
under the First Amendment. See Tinker, 393 U.S. at 506; Barnette, 319 U.S. at
637; Burnside, 363 F.2d at 749. Although we do not know where exactly
Stephanie’s actions took place, or how many tickets she shared, the complaint
alleges that the action did not take place during a curricular time, and at this
stage, we accept factual allegations in the complaint as true, drawing all
inferences in favor of Stephanie, the non-movant. See Brown, 188 F.3d at 586.
As with the “Jesus” pencils, a reasonable official would not have been
confused about the speech at issue in this case. No reasonable official would
think that Stephanie’s conversation with her friends and decision to share free
tickets to a drama put on by a local church were school-sponsored speech. The
school was not required to “affirmatively . . . promote” the drama; Stephanie was
sharing the tickets as an individual, on her own time at school. This was not in
“essence, the school’s own speech”: Stephanie’s conversation with her friends was
not controlled by the school or highly supervised by faculty members. Unlike the
speech in Curry, which was expressly part of the school curriculum, her decision
to share tickets with friends who expressed an interest in attending a local play
had nothing to do with the school curriculum. The speech took place “during
non-curriculum times” and was not reasonably related to legitimate pedagogical
93
Case: 09-40373 Document: 00511615560 Page: 94 Date Filed: 09/27/2011
No. 09-40373
concerns. See Hazelwood, 484 U.S. at 270-71. Therefore, based on the facts
alleged, I would affirm the denial of qualified immunity to Bomchill as to this
incident because a reasonable official would have known that restricting
Stephanie’s private, non-disruptive, non-curricular, student-to-student speech
while at school but during non-curriculum times is not permitted by the First
Amendment.
D.
Finally, Bomchill had fair warning that preventing Stephanie from
sharing a “Jesus” pencil with her friends at her half-birthday party in the
cafeteria during lunch, while allowing a “moon” pencil to be shared, was
impermissible viewpoint discrimination under the First Amendment. See
Rosenberger, 515 U.S. at 828-29) (restrictions on speech violate the First
Amendment where the “specific motivating ideology or the opinion of perspective
of the speaker is the rationale for the restriction”). As with the prior two
incidents, Bomchill’s contention that this egregious viewpoint discrimination
was permissible because she was confused about whether the speech was school-
sponsored speech is not plausible. According to the complaint, Stephanie’s half-
birthday party was not expressly part of the curriculum, her decision to share
a pencil with a friend was not a graded assignment. See Curry, 513 F.3d at 574.
We do not know whether the lunch-time party was highly-regulated, or highly-
supervised, but the complaint does not allege as such, and at this stage, we must
accept all factual allegations as true, drawing all inferences in favor of
Stephanie, the non-movant. See Brown, 188 F.3d at 586. Most importantly,
there was no reasonable concern that Stephanie’s speech would be considered to
be the school speaking. See Hazelwood, 484 U.S. at 273. Unlike the religious
school tiles that the students painted in Fleming, which became a permanent
fixture of the school itself, here, Stephanie, as an individual, would have directly
94
Case: 09-40373 Document: 00511615560 Page: 95 Date Filed: 09/27/2011
No. 09-40373
handed a pencil to a friend. Therefore, based on the facts alleged, I would affirm
the denial of qualified immunity to Bomchill as to this incident because a
reasonable official would have known that restricting Stephanie’s private, non-
disruptive, non-curricular, student-to-student speech in the cafeteria during
lunch break was not permitted under the First Amendment.
E.
We now turn to Principal Swanson. Swanson had fair warning that
preventing Jonathan from sharing individually-addressed goodie bags that
contained candy-cane shaped pens with a “Legend of the Candy Cane” story,
constituted impermissible viewpoint discrimination. See Tinker, 393 U.S. at
506; Barnette, 319 U.S. at 637; Burnside, 363 F.2d at 749. No reasonable official
would think that Jonathan’s sharing of candy-cane shaped pens with a religious
message with his friends at the party was school-sponsored speech. This was
private speech from one student to another, with each goodie bag marked with
Jonathan’s name and with the name of the friend he was sharing the bag with.
His friend would understand that the gift was from Jonathan, not from the
school. This speech was not part of the school curriculum, did not take place
during an actual class, and was not reasonably related to legitimate pedagogical
concerns. Because the speech is private and voluntary, it does not matter that
it took place in the school building. See Santa Fe, 530 U.S. at 313 (“[N]othing in
the Constitution interpreted by the Court prohibits any public school student
from voluntarily praying at any time before, during, or after the school day.”).
In Hazelwood, the school funded the newspaper, “selected [the] editors,
scheduled the publication dates,” “edited [the] stories, . . . dealt with the printing
company,” and had “final authority with respect to almost every aspect of the
production and publication of the [paper], including its content.” Hazelwood, 484
U.S. at 268. Here, Jonathan selected the gift, Jonathan chose the message,
95
Case: 09-40373 Document: 00511615560 Page: 96 Date Filed: 09/27/2011
No. 09-40373
Jonathan paid for the gift, Jonathan put together the goodie bags, Jonathan
hand-addressed them to his classmates, and Jonathan had “final authority with
respect to almost every aspect” of his intended gift, “including its content.” See
id. It was Jonathan’s gift and Jonathan’s speech. There was no reasonable
concern that Jonathan’s speech “might be erroneously attributed to the school”
or was somehow “in essence the school’s own speech.”
Walz also involved seasonal parties and candy canes, but the similarities
end there. In contrast to Walz, here we do not have extensive summary
judgment evidence such as deposition testimony. We have only the complaint.
The complaint alleges that the “winter break” party has never been a part of the
PISD “curriculum,” noting that no written curriculum exists for the party, that
Jonathan and the other students were not graded for their participation in the
party, and that PISD has never given grades for such parties. This was not the
case in Walz, where the court concluded based on the summary judgment
evidence that the party was expressly part of the curriculum. Walz, 342 F.3d
at 279. Unlike in Walz, where the PTO organized the party, collected all the
gifts, and distributed them to the students, here students were permitted to
bring in their own gifts to distribute themselves. Id. at 278. In other words, the
speech at issue here was like the student’s speaking to his classmates at snack
time—as an individual—which is protected speech. See Walz, 342 F.3d at 279(observing that the court did not confront a situation where a student “turned
to his classmates during snack time and stated, ‘Jesus loves the little children,’”
a situation where the student speaks as an individual and the speech is
protected). In addition, there is no evidence at this stage that the “winter break”
parties were “highly structured, highly supervised, and regulated” like the party
in Walz. Id. Further, in Walz, school officials were concerned about the school’s
promoting a particular message and therefore did not permit the PTO to
96
Case: 09-40373 Document: 00511615560 Page: 97 Date Filed: 09/27/2011
No. 09-40373
distribute gifts containing a commercial, political or religious message at the
holiday party. Here the complaint does not allege that Swanson or Plano ISD
had any such concerns. Id. Rather, they singled out and silenced only messages
that expressed a religious viewpoint. Id.35 Indeed, although Swanson told
Jonathan that he had to remove his gifts from the classroom and place his goodie
bags in the school library or distribute his gift bags on a public sidewalk off of
school property, Jonathan’s other classmates were allowed to exchange gift bags
inside the classroom, and were never required to place their gift bags in the
library.
Any argument that the winter break party in our case must have been
curricular because the party in Walz was curricular impermissibly disregards
the allegations in the complaint, which we must accept as true, and draws
inferences against the students about the nature of the party. At this stage, we
cannot resolve disputed facts and we must draw all inferences in favor of the
students, not against them. See Roe, 299 F.3d at 400; Brown, 188 F.3d at 586.36
35
The fact that school administrators may restrict speech that interferes with
classroom instructions (and could reasonably be viewed as bearing the school’s imprimatur)
does not mean that they may single out religious speech for special censure or condemnation.
Certainly nothing in Walz purports to disregard decades of controlling Supreme Court
precedent prohibiting viewpoint discrimination.
36
The principals contend that the “winter break” party had a clearly defined curricular
purpose, was highly structured, supervised and regulated. Principals base these contentions
on exhibit 7 to the students’ First Amendment Complaint, a letter drafted by principals’
counsel to the students. The students attached this exhibit in order to show that the
principals’ claims in the letter were inaccurate and false. Specifically, the complaint alleges
that the letter’s “explanation that students are not permitted to distribute any materials is
simply inaccurate in practice, and has not historically occurred at Thomas.” Also, Swanson
never “mentioned anything about ‘curriculum’ in any of [her] communications about the
distribution of religious viewpoint material by students to other students.” Further, “the
‘winter break’ party was never . . . a part of the PISD ‘curriculum’ as [the attached] letter
posits.” The complaint also alleges that “PISD has never produced a copy of the curriculum
for the ‘winter break’ party. No written curriculum exists.” To the extent that there is a
conflict between the factual allegations in the complaint and the principals’ arguments based
on the letter, we must accept the complaint’s version as true and draw all reasonable
97
Case: 09-40373 Document: 00511615560 Page: 98 Date Filed: 09/27/2011
No. 09-40373
Crucially, nothing about a student’s sharing an individually addressed goodie
bag with a candy-cane shaped pen with another student conveys the message of
the school speaking, or is somehow in “essence the school’s own speech, that is,
articles that appear in a publication that is an official school organ.” Morse, 551
U.S. at 423 (Alito, J., concurring). Of course, summary judgment evidence may
ultimately demonstrate otherwise—that the party here was curricular, that the
activity was “highly structured, highly supervised, and regulated,” and that
Jonathan’s speech could be “erroneously attributed to the school.” But at this
motion to dismiss stage, the facts allege viewpoint discrimination against private
student speech, which is a violation of clearly established law. Therefore, based
on the facts alleged, I would affirm the denial of qualified immunity to Swanson
as to this incident because a reasonable official would have known that
restricting Jonathan’s private, non-disruptive, non-curricular, student-to-
student speech while at school but at non-curricular times was not permitted
under the First Amendment. See Walz, 342 F.3d at 279.
F.
We are not unsympathetic to school administrators who have to make
numerous difficult decisions about when to place restrictions on speech in our
public schools. Certainly, there could be some gray area where the
administrator should get the benefit of the doubt in such situations. However,
the four incidents in this case are nowhere near the gray area. If we accept the
principals’ argument in this case, where the speech is so far from the realm of
school-sponsored speech, then it is difficult to imagine a case where the law will
be sufficiently clear to overcome immunity. The result would be that in every
inferences in favor of the students. See Gonzalez v. Kay, 577 F.3d 600,603 (5th Cir. 2009)
(citing Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)). On a motion to
dismiss, we do not have the power to resolve factual disputes. See Roe, 299 F.3d at 400.
98
Case: 09-40373 Document: 00511615560 Page: 99 Date Filed: 09/27/2011
No. 09-40373
case involving religious discourse, schools officials could merely throw their
hands up in bewilderment, claim ignorance or confusion, and freely censor
private religious speech without consequence. The principals’ position in this
litigation is extreme: at oral argument, when asked what rights students clearly
have regarding religious speech, counsel for the principals replied that he did not
know. This is not only unacceptable, it is unreasonable. A reasonable school
official is presumed to know the law. It is clearly established law that viewpoint
discrimination is verboten. See Rosenberger, 515 U.S. at 828-29. As discussed
in Part III, the speech at issue in this case could neither be perceived as the
school’s speaking or the government’s endorsing religion. Any mistake on this
score was an unreasonable one—in other words, a mistake that a reasonable
principal would not have made.
V.
Imagine the United States of America where the First Amendment
protects a minor’s right to play violent video games,37 a person’s right to
hatefully protest the funerals of our heroic men and women in the miliary,38 and
the right to possess portrayals depicting animal cruelty, such as videos of people
crushing kittens with their shoes,39 but does not protect a child’s right to share
a pencil with another child at school merely because the pencil says the word
“Jesus.”
Our nation was built on the foundation of religious liberty and free
speech.40 This principle has been enshrined in our Constitution: “Congress shall
37
See Entertainment Merchants Ass’n, 2011 WL 2518809, at *10.
38
Snyder, 131 S. Ct. at 1220.
39
Stevens, 130 S. Ct. at 1592.
40
Thomas Jefferson introduced the Virginia Statute of Religious Freedom in 1779, a
statute that formed the basis of our First Amendment. It began with the words “An Act for
99
Case: 09-40373 Document: 00511615560 Page: 100 Date Filed: 09/27/2011
No. 09-40373
make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech . . . .” U.S. Const. amend.
I. We must ensure that the First Amendment “means what it says” when it
comes to protecting all viewpoints, including religious viewpoints . See Tinker,
393 U.S. at 513. “Indeed, in Anglo-American history, at least, government
suppression of speech has so commonly been directed precisely at religious
speech that a free-speech clause without religion would be Hamlet without the
prince.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760
(1995).
establishing religious Freedom. Whereas, Almighty God hath created the mind free.” Virginia
Statute of Religious Freedom (1786).
100