Doug Morgan v. Plano Independent School District

REVISED JULY 1, 2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 30, 2010

No. 09-40373 Lyle W. Cayce

Clerk

DOUG MORGAN; ROBIN MORGAN; JIM SHELL; SUNNY SHELL;

SHERRIE VERSHER; CHRISTINE WADE,

Plaintiffs - Appellees,

v.

LYNN SWANSON, In Her Individual Capacity and as Principal of Thomas

Elementary School; JACKIE BOMCHILL, In Her Individual Capacity and as

Principal of Rasor Elementary School,

Defendants - Appellants.

Appeal from the United States District Court

for the Eastern District of Texas, Sherman Division

Before DeMOSS, ELROD, and HAYNES, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

This appeal arises from the district court’s denial of Lynn Swanson and

Jackie Bomchill’s (Appellants) Second Motion to Dismiss based on qualified

immunity. Appellants argue, as they did below, that the First Amendment does

not apply to elementary school students. Because it has been clear for over half

a century that the First Amendment protects elementary school students from

religious-viewpoint discrimination, we AFFIRM.

No. 09-40373

I.

Appellees allege that “[Appellants] have in the past, and continue in the

present, to ban the distribution of religious messages by [Appellees] and other

students while on school property,” thereby resulting in “religious viewpoint

discrimination in violation of clearly established law.” Appellants deny that they

practiced viewpoint discrimination; however, because the motion on appeal is a

Rule 12(b)(6) motion, the court must, for purposes of this review, accept the

allegations contained in Plaintiffs’ Second Amended Original Complaint as true.1

Set forth below are the allegations contained in the Appellees’ 118-page

complaint.

A.

Each elementary school classroom in Plano Independent School District

(Plano ISD)2 hosts a “winter break” party at which students, if they so choose,

may exchange “goodie bags” containing gifts. At the December 2001 winter

break party at Thomas Elementary School, Michaela Wade gave each of her

classmates a goodie bag containing, among other items, a pencil inscribed with

the phrase “Jesus is the Reason for the Season.” Each gift bag was sealed and

had a sticker affixed to it which addressed the bag to a specific student in

Michaela’s class. Before allowing her to distribute the goodie bags containing

the pencils, the school officials searched her gift bags in order to determine

1

In their motion to dismiss, Swanson and Bomchill conceded, as they must, that “the

[c]ourt must accept the allegations contained in Plaintiffs’ Second Amended Original Complaint

that Defendants practiced viewpoint discrimination against Plaintiffs’ religious speech.” In

reviewing a 12(b)(6) motion, this court must accept as true all well-pleaded facts, “viewing the

allegations of the complaint in a light most favorable to the nonmoving party.” Baker v.

Putnal, 75 F.3d 190, 196 (5th Cir. 1996). We note, however, that at oral argument, Appellants

vociferously contested the facts giving rise to this lawsuit.

2

Although Plano ISD was a party in a related appeal before this court, it is not a party

to this appeal. See Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740 (5th Cir. 2009), cert.

denied, 2010 WL 1004558 (2010).

2

No. 09-40373

whether they contained any “religious” material. Upon discovering the pencils,

Plano ISD officials confiscated and banned them from school property.

Swanson, the principal at Thomas Elementary School, called Michaela’s

mother, Christine Wade, to inform her of the school’s action and to explain that

the candy canes that were also in Michaela’s goodie bags were acceptable gifts

but the pencils were unacceptable because they were inscribed with a religious

message. Swanson informed Christine Wade that Plano ISD administrators

specifically instructed her that the school district would not allow Michaela to

pass out pencils with the phrase “Jesus is the Reason for the Season” affixed to

them because of the religious viewpoint of the gift. At the 2001 winter break

party, school officials permitted Michaela to hand out candy canes without a

religious message attached and permitted her classmates to pass out goodie bags

containing gifts inscribed with secular phrases and symbols, such as snowmen

and snowflakes. Neither Michaela nor her younger sister Bailey attempted to

distribute gifts at their respective winter break parties in subsequent years

because they believed that Swanson (and Plano ISD) would continue to prohibit

their distribution of religious materials.3

B.

Plano ISD, Swanson, and other school officials at Thomas Elementary

School also prevented students from passing out “religious” materials at

December 2003 winter break parties. For his December 2003 winter break

party, third-grader Jonathan Morgan chose 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.

3

Appellees’ Second Amended Original Complaint also alleges that school officials and

Plano ISD banned all references to and symbols of the Christian religion and the celebration

of the Christian religious holiday, Christmas, from Thomas Elementary School. R. 1566. This

ban included red and green Christmas colors. Id. at 1568. Bailey Wade was also instructed

not to write “Merry Christmas” on greeting cards sent to United States soldiers because that

phrase might be offensive. Id.

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No. 09-40373

Each bag was individually addressed to a specific classmate with a tag specifying

that the gift was from Jonathan Morgan.

Several weeks before the winter break party, Jonathan’s parents, Doug

Morgan and Robin Morgan, met with Swanson in order to determine whether

she would permit students to exchange gifts bearing “religious” messages. 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. Swanson affirmed that those

actions of school officials have occurred in the past and will occur in

the future.

Swanson further emphasized that students were forbidden from using the term

“Christmas” in conjunction with any school event or activity (including writing

“Merry Christmas” on greeting cards sent to retirement homes) and affirmed

that the school would permit secular gifts to be distributed between students at

the winter break parties but would prohibit religious-viewpoint messages and

gifts of a religious nature.

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 gift

bags on a public sidewalk off of school property. All of Jonathan’s other

4

No. 09-40373

classmates were allowed to exchange gift bags inside the classroom.4 Swanson

only prohibited students from exchanging materials that contained a “religious”

viewpoint. Swanson allowed students to exchange other materials,5 and, other

than noting the “religious” nature of the materials, Swanson offered no other

justification for her censorship of Jonathan’s speech.

C.

In January 2004, “[w]hile at school, but during non-curriculum times and

with no material and substantial disruption to the operations of the school,”

Stephanie Versher spoke with her friends about a Christian drama and gave free

tickets to those who were interested in attending. After Stephanie had

distributed several tickets, Bomchill, the principal of Rasor Elementary School,

another Plano ISD school, instructed Stephanie’s teacher to stop her from

distributing additional tickets and to confiscate and discard tickets that she had

distributed. Bomchill’s only justification for restricting Stephanie’s distribution

of the tickets was that the tickets expressed a “religious” viewpoint and that

other students might “disagree” with the Christian viewpoint and complain to

school officials.

D.

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. For example, students

have distributed bookmarks with printed messages, key rings with words and

4

Swanson later announced to the entire school that students were not allowed to bring

any outside materials into the classrooms. Swanson, however, had just observed other outside

materials inside of Jonathan’s classroom, but she never required the other students to remove

their gift bags from the classroom and place them in the library.

5

Doug Morgan also asked Swanson if he could distribute the Legend of the Candy

Cane cards to other parents present at the party. Swanson refused his request.

5

No. 09-40373

symbols, bracelets, and pencils with various words and symbols. 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, on January 16, 2004, Stephanie wanted to

give her classmates 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, Sherrie Versher, unsuccessfully

attempted to meet with Principal Bomchill prior to the party to discuss the

snacks and gifts, so on the day of the party, she took the pencils and brownies

to the school’s office and requested to see Bomchill. Upon arriving, Sherrie

Versher 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.6 Bomchill also accused Sherrie Versher of distributing religious-

viewpoint materials to students at school.

Furthermore, Bomchill threatened that, if Stephanie distributed any more

religious-viewpoint material while on school property, the school would call the

police and Stephanie “would be in trouble.” Bomchill allowed Stephanie to

distribute the brownies and the “moon” pencils but not the “Jesus” pencils.

According to Bomchill, such “religious” material (i.e., the tickets and “Jesus”

pencils) can only be distributed “outside of the school building.” Accordingly,

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 give them to her classmates during her half-birthday party in the school

cafeteria during lunch break.

E.

6

The school’s security guard followed Sherrie Versher as she went throughout the

building, and upon leaving the school, Sherrie Versher noticed that two police cars were driving

toward the school. As she was driving away, the police followed her and pulled her over. The

officers let her go without incident.

6

No. 09-40373

When Sherrie Versher arrived in the afternoon to pick Stephanie up from

school, she observed her daughter “amongst a small group of her classmates

outside of the school building on the sidewalk and lawn” giving the “Jesus”

pencils to her friends after school. As Stephanie was attempting to give a pencil

to one of her close friends, Bomchill grabbed her by the shoulder, took the pencil

away from Stephanie’s friend, and told Stephanie that “she could not distribute

those Christian pencils—the religious viewpoint ‘Jesus’ pencils—while on [Plano

ISD] school property.” Bomchill then approached Sherrie Versher and informed

her that Stephanie would be “kicked out of school” if she tries to distribute the

Christian tickets or “Jesus” pencils at any time while on school property. When

Sherrie Versher attempted to explain that Bomchill had earlier that day told her

that Stephanie could distribute her materials “outside the building,” Bomchill

stated that Sherrie Versher “apparently had a hearing problem and needed to

have it checked.”

II.

This court has jurisdiction to review the district court’s denial of

Appellants’ 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, 530 (1985). This

court does not have jurisdiction to resolve factual disputes. Roe v. Texas Dep’t

of Protective and Regulatory Servs., 299 F.3d 395, 400 (5th Cir. 2002). Moreover,

this court reviews a district court’s determination of a Rule 12(b)(6) motion de

novo. In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008). For

a complaint to be 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

7

No. 09-40373

relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555, 570 (2007).7

Here, Appellants’ motion to dismiss before the district court is based on a

claim of qualified immunity, which the Supreme Court has held “is an immunity

from suit rather than a mere defense to liability.” Mitchell, 472 U.S. at 526.

Where the defense is raised in a 12(b)(6) motion, “a defendant pleading qualified

immunity is entitled to dismissal before the commencement of discovery,” unless

the plaintiffs sufficiently allege a violation of established law. Id.

III.

Qualified immunity does not provide officials with a license to engage in

lawless conduct. 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.

(footnote omitted). Qualified immunity thus shields 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.” Id. at 818; Thompson v. Upshur

County, 245 F.3d 447, 456 (5th Cir. 2001). The Supreme Court has outlined a

two-prong test for determining whether an official is entitled to qualified

immunity: (1) “The first inquiry must be whether a constitutional right would

have been violated on the facts alleged,” Saucier v. Katz, 533 U.S. 194, 200

7

We will not consider Appellants’ argument, raised for the first time during oral

argument, that the facts asserted in the complaint—particularly that the events at issue were

non-curricular—are implausible and therefore the complaint fails to meet the Twombly

standard. “No authority need be cited for the rule that, generally, we do not consider an issue

first raised at oral argument on appeal.” Arsement v. Spinnaker Exploration Co., LLC, 400

F.3d 238, 247 (5th Cir. 2005). Moreover, even if we did consider the argument, which we do

not, Appellees’ complaint, which sets forth a detailed and thorough 467-point recitation of the

alleged events, meets the Twombly standard. It is certainly plausible, for instance, that winter

break and half-birthday parties could be what they purport to be—non-curricular parties.

8

No. 09-40373

(2001), overruled in part on other grounds by Pearson v. Callahan, 129 S. Ct. 808

(2009); and (2) “if the plaintiff has satisfied this first step, the court must decide

whether the right at issue was ‘clearly established’ at the time of the defendant’s

alleged misconduct,” Pearson v. Callahan, 129 S. Ct. at 816.8

Appellants argued before the district court that (1) “the United States

Constitution does not prohibit viewpoint discrimination against religious speech

in elementary schools” and (2) Appellees’ claims “should be dismissed because

[Appellees] have failed to allege any conduct of these [Appellants] which

constitutes a violation of [Appellees’] clearly established constitutional rights.”

The district court adopted the magistrate judge’s report denying Appellants’

Motion to Dismiss, which correctly found that “a child’s right to freedom of

expression is not forfeited simply because of her age,” and that this right is

clearly established in light of “the specific context of the case.” Appellants allege

that the district court erred in denying the motion to dismiss based on qualified

immunity because “[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.”9 In the alternative, Appellants allege that the law

8

In Pearson, the Supreme Court relaxed Saucier’s rigid requirement that a

determination of “whether ‘the facts alleged show the officer’s conduct violated a constitutional

right . . . must be the initial inquiry’ in every qualified immunity case.” Pearson, 129 S. Ct. at

816 (quoting Saucier, 533 U.S. at 201). Appellants thus argue that it is necessary only for this

court to determine whether Appellees’ alleged constitutional right was clearly established and

that this court need not determine whether Appellees have actually asserted a violation of a

constitutional right. In order to deny a claim of qualified immunity, however, this court, under

Harlow, must determine whether Appellants’ alleged conduct actually violated Appellees’

constitutional rights. Pearson, therefore, did not abolish the first prong of the qualified-

immunity test but rather created a short-cut for courts to grant qualified immunity without

undertaking the often more difficult task of determining whether a plaintiff’s alleged conduct

resulted in a constitutional violation. Harlow, 457 U.S. at 818-19. Accordingly, we will

analyze both prongs in turn.

9

This court has previously recognized this broad characterization of Appellants’

argument in a related case. Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 744 (5th Cir.

2009) (“Defendants Lynn Swanson and Jackie Bomchill, Principals at Thomas Elementary

9

No. 09-40373

did not clearly establish that the First Amendment Free Speech Clause is

implicated under the alleged circumstances of this case because neither “this

[c]ourt nor the Supreme Court has ever upheld a First Amendment free speech

claim by an elementary school student.”

IV.

The issues before this court are straightforward and limited. This court

is not tasked with determining whether Appellants’ conduct actually violated

Appellees’ constitutional rights, because at this juncture, we must accept

Appellees’ allegations that Appellants discriminated against religious

viewpoints. Nor is this court tasked with drawing the line at which student

speech may be properly censored because of its potential to disrupt the

classroom, see Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969),

or because of its potential to subvert the school’s educational mission, see

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). Because Appellants

asserted qualified immunity in a motion to dismiss, this court must accept as

true Appellees’ allegation that their actions “did not cause substantial and

material disruption of school operations.” Furthermore, the facts alleged, viewed

in a light most favorable to Appellees, provide no indication that the events at

issue were curricular or that the speech was inconsistent with the school’s “basic

educational mission.” Hazelwood, 484 U.S. at 266 (internal quotations and

citation omitted). In fact, some of the alleged speech at issue occurred after

school hours. Therefore, we need only determine, under the facts pleaded here,

whether it was clearly established at the time of the alleged misconduct that

School and Rasor Elementary School, urge that the First Amendment does not apply to

elementary school students.”), cert. denied, 2010 WL 1004558 (2010).

10

No. 09-40373

elementary school students have a First Amendment right to be free from

religious-viewpoint discrimination while at school.10

A.

Appellants contend that “neither the Supreme Court nor this Court has

ever extended First Amendment ‘freedom of speech’ protection to the distribution

of non-curricular materials in public elementary schools.” They are wrong. The

Supreme Court has long recognized that public school students do not “shed

their constitutional rights to freedom of speech or expression at the schoolhouse

gate.” Tinker, 393 U.S. at 506. Furthermore, for 67 years, the Supreme Court

has recognized that school officials are subject to the Constitution, and the Free

Speech Clause of the First Amendment is no exception. “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 . . . .” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642

(1943). Over six decades ago, Barnette made it clear that the First Amendment

applies to 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. These have, of course, important,

delicate, and highly discretionary functions, but none that they may

not perform within the limits of the Bill of Rights. 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.

10

Appellants do not argue in their motion to dismiss or in their initial brief before this

court (1) that they are entitled to qualified immunity with respect to their restriction of parent-

to-parent speech on school grounds or (2) that Appellees have failed to plead (or have waived

the argument) that Appellants engaged in unconstitutional viewpoint discrimination with

respect to parent-to-parent speech. Accordingly, this court does not consider such arguments,

which were raised for the first time in Appellants’ reply brief on appeal. “An appellant

abandons all issues not raised and argued in its initial brief on appeal.” Cinel v. Connick, 15

F.3d 1338, 1345 (5th Cir. 1994) (citations omitted).

11

No. 09-40373

Barnette, 319 U.S. at 637.

Appellants argue that reliance on Barnette is misplaced because “(1) there

is nothing in the Supreme Court’s decision in Barnette, nor in the lower court’s

decision, that indicates that the plaintiffs in Barnette were elementary school

students nor that the decision generally applies the free speech clause in the

elementary school context, (2) the Supreme Court was not presented with the

question of whether it should differentiate between elementary school and high

school students, and (3) Barnette involved compelled speech, not a restriction on

the distribution of non-curricular materials.” These arguments are meritless.

With respect to the age of the Barnett11 Sisters, although the Supreme Court

opinion does not specifically use the term “elementary school,” it is evident on

the face of the decision itself that the plaintiffs were elementary school students.

Id. at 630, 633, 644(describing the plaintiffs as “children” and “little children”).

Furthermore, the fact that the Supreme Court did not analyze whether it

should differentiate between elementary and high school students is

inconsequential and does nothing to subvert the clarity of the opinion. The issue

here is whether elementary school students have any First Amendment rights,

not whether their rights are coextensive with high school students. In addition,

Barnette overruled Minersville School District v. Gobitis, 310 U.S. 586 (1940),

which involved a ten-year-old child. Id. at 591; see also Bowen v. Roy, 476 U.S.

693, 705 (1986) (stating that Barnette involved “young children at elementary

and secondary schools” (citation omitted) (Brennan, J., concurring)).

As to Appellants’ third contention, the state school board’s policy, which

required every student to pledge allegiance to the United States flag regardless

of religious beliefs, effectively prevented the Barnett Sisters from privately

expressing their religious viewpoint—albeit through silence—at school. The Bill

11

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.

12

No. 09-40373

of Rights, “which guards the individual’s right to speak his own mind, [does not

leave] it open to public authorities to compel him to utter what is not in his

mind.” Barnette, 319 U.S. at 634; see also Wallace v. Jaffree, 472 U.S. 38, 51

(1985) (citing Barnette, 319 U.S. at 633-34, for the proposition that “freedom of

thought protected by the First Amendment against state action includes both the

right to speak freely and the right to refrain from speaking at all”).

Twenty-six years after Barnette, the Supreme Court reiterated that the

First Amendment Free Speech Clause applied to all students while in school:

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. This has been the unmistakable

holding of this Court for almost 50 years. . . . Students in school . .

. are ‘persons’ under our Constitution. . . . They may not be confined

to the expression of those sentiments that are officially approved.

In the absence of a specific showing of constitutionally valid reasons

to regulate their speech, students are entitled to freedom of

expression of their views.

Tinker, 393 U.S. at 506, 511. In Tinker, the “problem [involved] direct, primary

First Amendment rights akin to ‘pure speech’” and, similarly to the allegations

in this case, did “not concern speech or action that intrudes upon the work of the

schools or the rights of other students.” Id. at 508. In that case, there was no

evidence that the students’ expressive conduct materially and substantially

disrupted the work and discipline of the school. Id. at 508, 514.

Appellants “contend that the First Amendment, and therefore Tinker, does

not apply to student-to-student distribution of non-curricular materials by

students in elementary schools” and cite Tinker, attempting to show that the

“United States Supreme Court has never clearly addressed the question of

whether any First Amendment free speech protections apply in public

elementary schools.” Once again, Appellants are mistaken. It does not follow

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No. 09-40373

that, because the majority opinion in Tinker did not use the precise term

“elementary school,” the Court’s holding that “First Amendment rights . . . are

available to teachers and students” somehow specifically excludes elementary

school students. Id. at 506. On the contrary, 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. at 516 (Black, J., dissenting). 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).

B.

Appellants nevertheless contend that they are entitled to qualified

immunity because the law does not clearly establish that the Constitution

prohibits viewpoint discrimination against religious speech in elementary

schools. Appellants are again mistaken.12

12

Appellees contend that the clearly established inquiry “must be undertaken in light

of the specific context of the case, not as a broad general proposition.” The Supreme Court,

however, has held that “general 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.” Hope v. Pelzer, 536 U.S. 730, 741

(2002) (internal quotation marks and citations omitted). The Supreme Court’s general and

broad prohibitions are sufficient to provide “fair warning” that the general rule prohibiting

viewpoint discrimination applies to elementary school students. Furthermore, when pressed

to do so at oral argument, Appellants had great difficulty providing a single case in all of

American history holding that religious-viewpoint discrimination against elementary school

children is appropriate. “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.’” Safford Unified Sch. Dist. No. 1 v. Redding, ---- U.S. ----, 129 S. Ct. 2633, 2643

(2009) (citing K.H. ex rel. Murphy v. Morgan, 914F.2d 846, 851 (7th Cir. 1990)).

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In addition to Tinker and Barnette, the Supreme Court, the Fifth Circuit,

the United States government, and even Plano ISD notified Appellants that

elementary school students have First Amendment rights. See, e.g., Good News

Club v. Milford Cent. Sch., 533 U.S. 98, 103 (2001) (applying the First

Amendment Free Speech Clause to students “ages 6 to 12”); Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995) (“It is axiomatic that

the government may not regulate speech based on its substantive content or the

message it conveys. . . . Discrimination against speech because of its message is

presumed to be unconstitutional.” (citations omitted)); Lamb’s Chapel v. Ctr.

Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (holding, without

distinguishing on the basis of age, that “the First Amendment forbids the

government to regulate speech in ways that favor some viewpoints or ideas at

the expense of others” (citation omitted)); Planned Parenthood of Cent. Mo. v.

Danforth, 428 U.S. 52, 74 (1976) (citing Tinker for the holding that

“[c]onstitutional rights do not mature and come into being magically only when

one attains the state-defined age of majority” and that “[m]inors, as well as

adults, are protected by the Constitution and possess constitutional rights”

(citations omitted)); Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273, 280 (5th Cir.

2003) (holding in the middle school context, without distinguishing on the basis

of age, that “[i]t is axiomatic that the government may not regulate speech based

on its substantive content or the message it conveys” and that “government

actors violate a clearly established right if they discriminate on the basis of the

views espoused by the speaker” (internal quotation marks and citations

omitted)); United States Department of Education, Guidance on Constitutionally

Protected Prayer in Public Elementary and Secondary Schools (February 7,

2 0 0 3 ) , a v a i l a b l e a t

http://www2.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html

(stating that the First Amendment “protects privately initiated religious

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expression and activities from government interference and discrimination”);

Plano ISD, Student Expression: Distribution of Nonschool Literature, R. 3812-13

(showing that Plano ISD did not distinguish the legal right of a student to

distribute non-school literature on the basis of age).13 In addition, this court has

already observed in a related case that elementary school students are entitled

to First Amendment rights. Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740,

745 (5th Cir. 2009) (applying 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 concluded that elementary school students are not covered protected

by First Amendment), cert. denied, 2010 WL 1004558 (2010).

Moreover, Appellants’ reliance on Pearson v. Callahan, ---- U.S. ----, 129

S. Ct. 808 (2009), to urge us to look to courts in other circuits to support their

novel proposition—that there is no clearly established right of elementary school

students to distribute non-curricular materials to their classmates—is both

misplaced and unhelpful. Pearson does not stand for the proposition that courts

are always required to consider decisions in other circuits when evaluating

whether a right is clearly established. Rather, Pearson gives state officials the

liberty to rely on clearly established law in other circuits in situations where the

Supreme Court and their own circuit have not yet acted. Id. at 822-23.

Conversely, even prior to Pearson, we have observed that other precedent may

be used in some circumstances to demonstrate the presence of a clearly

13

Appellants’ reliance on Morse v. Frederick, 551 U.S. 393 (2007), to suggest that the

law is not clearly established is misplaced. First, Morse was decided several years after the

alleged conduct at issue, and therefore, Appellants could not have relied on it at the time of the

alleged conduct to assess whether their actions were constitutionally permissible. Second,

assuming arguendo that Appellants could consider Morse, the appeal in that case arose out of

a summary-judgment motion, not a 12(b)(6) motion as in the instant case. Morse did not

unsettle Tinker’s application to elementary schools. Rather, Morse analyzed a specific type of

conduct—promotion of illegal drug use—that can be restricted under Tinker given the “special

characteristics of the school environment.” Morse, 551 U.S. at 397.

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No. 09-40373

established right in situations where the Supreme Court and this circuit have

not yet addressed the issue. McClendon v. City of Columbia, 305 F.3d 314, 329

(5th Cir. 2002) (en banc) (“[I]n the absence of directly controlling authority, a

consensus of cases of persuasive authority might, under some circumstances, be

sufficient to compel the conclusion that no reasonable officer could have believed

that his or her actions were lawful.” (internal quotation marks and citations

omitted)).

Even assuming arguendo that it were necessary to consider the law of

other circuits, Appellants would not be entitled to qualified immunity. See, e.g.,

Peck v. Baldwinsville Central 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”); 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”); 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.” (citation omitted)); 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 v. Milford Cent. Sch., 533 U.S. 98, 116 (2001));

Curry v. Hensiner, 513 F.3d 570 (6th Cir. 2008) (applying Hazelwood’s First

Amendment framework in the elementary school setting); Hosty v. Carter, 412

F.3d 731, 735 (7th Cir. 2005) (“The Supreme Court itself has established that

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No. 09-40373

age does not control the public-forum question. . . . No 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)); 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 the [F]irst [A]mendment

postpones the right of religious speech until high school.”); 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 to not stand during the pledge of allegiance).14

In light of the overwhelming precedent and persuasive authority to the

contrary, it is unsurprising that Appellants can point to no case stating that

elementary school students are without protection under the First Amendment

from religious-viewpoint discrimination, absent evidence of disruption to the

14

Appellants contend that the law is not clearly established and argue that the Third

and the Sixth Circuits have upheld viewpoint discrimination against religious speech in

elementary schools. See Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 278-79 (3d Cir.

2003) (holding that the school could prohibit gifts with “commercial, political, religious, or other

undertones that promoted a specific message” in an organized curricular activity); Curry v.

Hensiner, 513 F.3d 570 (6th Cir. 2008) (holding that the school could prohibit religious

messages on goods sold during a simulated marketplace that was part of the formal

curriculum). Initially, we note that the speech restriction in Walz was not limited to a religious

viewpoint. More importantly, these cases fail to support Appellants’ novel proposition that

school officials may discriminate against religious viewpoints because of the age of the speaker.

Rather, both cases apply the principle that a school may restrict student speech when it occurs

during “school-sponsored” activities that “the public might reasonably perceive to bear the

imprimatur of the school” and the restriction is “reasonably related to legitimate pedagogical

concerns.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271, 273 (1988). Here, the

alleged events fall outside the Hazelwood context because Appellees’ complaint, which we must

accept as true, indicates that Appellants restricted the students’ speech solely because of its

religious character, not for a pedagogical reason or because of a concern that the public might

misperceive the speech as bearing the imprimatur of the school.

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No. 09-40373

classroom or subversion of educational mission. Appellants thus had fair

warning that the suppression of student-to-student distribution of literature on

the basis of religious viewpoint is unlawful under the First Amendment with

respect to elementary school students. Therefore, Appellants are not entitled to

qualified immunity. “If the law was clearly established, the immunity defense

ordinarily should fail, since a reasonably competent public official should know

the law governing his conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818-19

(1982). Furthermore, this case does not present extraordinary circumstances,

and Appellants have set forth no argument that they “neither knew nor should

have known of the relevant legal standard.” Id. at 819. Appellants’ conduct, as

alleged, violated the elementary school students’ clearly established First

Amendment rights.15

V.

Appellees’ have alleged a violation of clearly established law; therefore,

Appellants are not entitled to qualified immunity. The district court’s denial of

Appellants’ Motion to Dismiss is AFFIRMED.

15

Appellants contend that, even if the law is clearly established that the First

Amendment prohibits religious viewpoint discrimination at the elementary school level,

qualified immunity nevertheless applies because of current confusion with respect to

Establishment Clause jurisprudence. This argument borders on the frivolous and is a red

herring. Appellees’ complaint provides no indication, whatsoever, that the student speech was

anything other than non-disruptive, non-curricular student-to-student speech, and no facts

pleaded suggest that the speech bears the imprimatur of the public schools or that any

students were confused as to the source of the speech. “[T]here is a crucial difference between

government speech endorsing religion, which the Establishment Clause forbids, and private

speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Bd. of

Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990).

19