Doug Morgan v. Plano Independent School Dist

Case: 13-40433 Document: 00512650331 Page: 1 Date Filed: 06/03/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 13-40433 June 3, 2014

Lyle W. Cayce

DOUG MORGAN, Clerk

Plaintiff-Appellant

v.

LYNN SWANSON, in her individual capacity and as PRINCIPAL OF

THOMAS ELEMENTARY SCHOOL,

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.

PER CURIAM:

The per curiam opinion dated April 2, 2014 is withdrawn and the

following per curiam is substituted in its place. The separate writings of

Judges Benavides and Clement are unchanged and are refiled herewith.

Plaintiff-Appellant Doug Morgan appeals a dismissal in which the

district court granted qualified immunity to an elementary school principal

who did not allow him to distribute religious material to other adults at his

son’s in-class winter party. We affirm.

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I. Background

In December of 2003, Doug Morgan attended an in-class winter party

with his son, Jonathan. As part of the traditional student gift exchange,

Jonathan intended to distribute candy canes bearing a religious message.

Principal Lynn Swanson, however, told the Morgans that religious material

would not be permitted in the third-grade classroom. After confirming this

policy with district administrators, Swanson suggested that they place the

materials on an “information table” where other families could pick up the

material and take it home. She later announced that all materials—religious

or otherwise—were prohibited from the classroom, but the Morgans noticed

that the other students were allowed to exchange gifts. After Jonathan was

excluded from the gift exchange, the Morgans filed suit under 42 U.S.C. § 1983,

alleging a violation of Jonathan’s First Amendment rights. This Court, sitting

en banc, held that Principal Swanson unconstitutionally discriminated on the

basis of viewpoint when she did not allow Jonathan to distribute his gifts. See

Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc). The Court

nevertheless granted Swanson qualified immunity, finding relevant law too

“abstruse” and “complicated” for Swanson to have known how to handle the

situation. Id. at 382.

Doug Morgan now asserts that he, too, experienced viewpoint

discrimination when Principal Swanson told him not to distribute the religious

material to other consenting adults in the classroom. He does not allege that

any other parents were permitted to exchange gifts, nor does he challenge the

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school’s policy, so the factual foundation of his claim is unclear. 1 Rather than

reach the merits of Morgan’s constitutional assertions, the district court

dismissed the claim after finding that Swanson is entitled to qualified

immunity. 2 We review such a decision de novo, taking all well-pleaded facts

as true and in light most favorable to the plaintiff. Whitley v. Hanna, 726 F.3d

631, 637 (5th Cir. 2013). To overcome the qualified immunity defense at the

pleading stage, Morgan must allege that the objectionable conduct violated a

right that was “clearly established at the time.” Pearson v. Callahan, 555 U.S.

223, 227 (2009).

II. Discussion

The sole question before this Court is whether Morgan’s asserted right

to distribute the material was so clearly established that Principal Swanson is

not entitled to qualified immunity. The district court did not address the

actual constitutionality of Swanson’s conduct, and because we find that she is

entitled to immunity, we need not reach that question today. Id. at 236–37.

A school official is entitled to immunity from civil liability arising out of

her discretionary decisions unless her conduct is “clearly established” as

unconstitutional at the time of the disputed action. Safford Unified Sch. Dist.

No. 1 v. Redding, 557 U.S. 364, 377 (2009). Where there are no allegations of

1 Morgan’s claim may not meet the pleading standard, even aside from any failure to

overcome Swanson’s defense. Fed. R. Civ. P. 12(b)(6); see also Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (holding that conclusory allegations do not meet the 12(b)(6) standard); Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 547 (2007) (requiring “enough facts to state a claim to relief

that is plausible on its face”). Because Swanson is entitled to qualified immunity, we do not

make this determination today.

2 Neither the defendant nor the district court indicated whether the dismissal is

pursuant to 12(b)(6) or 12(c). The distinction is of little import, as the two motions are

governed by the same substantive standard, and there is no dispute as to the evidentiary

materials properly before the Court. Gentilello v. Rege, 627 F.3d 540, 543–44 (5th Cir. 2010).

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malice, there exists a “presumption in favor of qualified immunity” for officials

in general, and for educators in particular. Schalk v. Gallemore, 906 F.2d 491,

499 (10th Cir. 1990) (citation omitted); see also Safford, 557 U.S. at 377

(referring to the “high degree of deference that courts must pay to [an]

educator’s professional judgment”). Courts recognize that school officials have

“a difficult job, and a vitally important one.” Morse v. Frederick, 551 U.S. 393,

409 (2007). For this reason, educators are entitled to immunity unless “no

reasonable official” would have deemed the disputed conduct constitutional.

Morgan, 659 F.3d at 371, 417.

Our review of existing law reveals that educators are rarely denied

immunity from liability arising out of First-Amendment disputes. Morgan,

659 F.3d at 371. The rare exceptions involve scenarios in which a factually

analogous precedent clearly established the disputed conduct as

unconstitutional. For example, the Eleventh Circuit considered allegations

that a student was punished for silently raising his fist instead of reciting the

pledge with his classmates. Holloman ex rel. Holloman v. Harland, 370 F.3d

1252 (11th Cir. 2004). The facts as pleaded indicated that there was no

disruption of any kind, and that the teacher admitted that she was appalled

and disappointed by the “unpatriotic” behavior. Id. at 1281. After reviewing

the record, the court concluded that the student’s conduct was essentially a

combination of Tinker’s 3 non-verbal expression and the Barnette 4 right to

abstain from the pledge. Id. at 1268–70. Because a student’s right to engage

in this kind of non-disruptive political expression has been so clearly

3 Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503 (1969).

4 W. Va. State Bd. Of Educ. v. Barnette, 319 U.S. 624 (1943).

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established, the court held that the teacher and principal were not entitled to

qualified immunity. Id. at 1270. Similarly, another court identified three

“factually similar” circuit precedents before withholding immunity from a

coach who suspended a football player that had reported an assault by a

teammate. Seamons v. Snow, 206 F.3d 1021 (10th Cir. 2000). The prior cases

had so clearly established the law that the plaintiff was able to overcome the

presumption in favor of qualified immunity. Id. at 1030. In the present case,

however, there is no legal authority that clearly establishes the asserted right

such that Morgan can overcome Swanson’s defense. A plaintiff does not

overcome the qualified immunity defense by alleging the violation of a right

that is only defined “at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S.

----, 131 S. Ct. 2074, 2084 (2011). Instead, there must exist a clearly

established “particular right” such that the official had “fair notice” of that

right and its concomitant legal obligations. Camreta v. Greene, 563 U.S. ----,

131 S. Ct. 2020, 2031 (2011). In other words, “the contours of the right” must

be “sufficiently clear that a reasonable official would understand that what he

is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

In concluding that a particular right is clearly established, courts must rely

only on authority that existed at the time of the disputed conduct; conversely,

courts may consider newer contrary authority as evidence that the asserted

right is not clearly established. See Wilson v. Layne, 526 U.S. 603, 614, 617–

18 (1999).

Morgan argues that his right to distribute religious material is clearly

established because “regardless of forum, viewpoint discrimination regarding

private speech is unconstitutional.” This assertion is generally true. Yet such

a broad generalization is exactly the kind of proposition that will not suffice for

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the purposes of qualified immunity analysis, as it simply does not provide the

official with any sense of what is permissible under a certain set of facts. For

example, the nearly universal prohibition against viewpoint discrimination

does not inform an official as to what, precisely, constitutes viewpoint

discrimination. Nor does it enlighten a teacher as to the permissible extent of

content restriction in a classroom setting. For these reasons, this Court has

already rejected the viewpoint discrimination principle as “far too general” to

have clearly established, at the time of the incident, Swanson’s constitutional

obligations vis-à-vis the holiday party. Morgan, 659 F.3d at 378. And we are

not alone: the Ninth Circuit recently rejected an argument very similar to the

one made here, holding that “sweeping statement[s]” about the First

Amendment are not sufficient to deprive a teacher of qualified immunity. C.F.

ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 987 (9th Cir.

2011); accord Hosty v. Carter, 412 F.3d 731, 738 (7th Cir. 2005).

When asked at oral argument to name a case that clearly establishes

Morgan’s right to distribute the religious gifts, Morgan pointed to Chiu v.

Plano Indep. Sch. Dist., 260 F.3d 330 (5th Cir. 2001). Yet the case is

inapposite. Chiu dealt with after-school meetings whose express purpose was

to allow adults to discuss mathematics instruction. Id. at 336–37. This Court

held that—regardless of whether the meetings were properly classified as

public forum or limited public forum—school officials could not prohibit the

plaintiffs from distributing material related to certain curriculum options. Id.

at 354. It is difficult to imagine how Chiu establishes a specific rule applicable

to this case. The present case does not involve an individual trying to

contribute relevant materials to a public forum dedicated to adult dialogue.

Instead, a parent asked whether he could distribute religious material during

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a school-day activity for children. So while Chiu may indeed be relevant in

discerning the nature and extent of Morgan’s rights in the classroom, the case

does not itself establish those rights, and its radically different factual context

renders Chiu incapable of providing any meaningful guidance to an educator

trying to handle First Amendment concerns arising out of a third-grade party.

III. Conclusion

After carefully considering Morgan’s arguments, we find that he has not

identified any case clearly establishing the constitutional right asserted here.

Nor are we aware of such a case. Where there is no authority recognizing an

asserted right, and where the area of law is as “abstruse” and “complicated” as

First Amendment jurisprudence, that right cannot be clearly established for

the purposes of qualified immunity analysis. Morgan, 659 F.3d at 382.

Accordingly, Morgan’s allegations are not sufficient to overcome Swanson’s

qualified immunity defense. His claim is therefore properly dismissed.

AFFIRMED.

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FORTUNATO P. BENAVIDES, Circuit Judge, specially concurring:

I concur in the decision and write separately only to further elaborate on

the complex and unsettled aspects of this area of the law. The First

Amendment circumscribes a school’s authority to restrict the speech of non-

student visitors to campus. The constitutional extent of that authority varies

with the use of the facility. First, where a school facility is opened as a general

public forum, any regulation is subject to strict scrutiny, and only narrowly

tailored time, place, and manner restrictions are permissible. Perry Educ.

Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). Second, a school

serving only as a limited public forum need not “allow persons to engage in

every type of speech,” and officials may restrict use to “certain groups or [to]

the discussion of certain topics” provided that restrictions are viewpoint-

neutral. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001)

(citation omitted). And finally, where a school is not opened as a public forum

at all, but is simply operating as a school, officials enjoy the “inherent”

authority to limit an outsider’s access and expression to that which is

“compatible with the intended purpose of the property.” Perry, 460 U.S. at 49.

Complicating this seemingly straightforward framework are the

requirements of the Establishment Clause. A government entity must remain

neutral toward religion. Good News, 533 U.S. at 114. Any restriction on

religious expression must have a “secular . . . purpose,” and should not inhibit

religious practice or “foster an excessive government entanglement with

religion.” Lemon v. Kurtzman, 403 U.S. 602, 613 (1971) (citation and internal

quotation marks omitted). Accordingly, public school officials must

“accommodate the free exercise of religion” without appearing to “endorse one

religion over another, or to endorse religion in general.” Lee v. Weisman, 505

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U.S. 577, 585, 587 (1992) (citation omitted). At the same time, any regulation

intended to prevent apparent endorsement must not be so onerous that the

school seems hostile toward religion or religious individuals. Lynch v.

Donnelly, 465 U.S. 668, 673 (1984).

Because the extent of a school’s authority to restrict speech is a function

of so many complex variables, any countervailing right is rarely considered

“clearly established” for the purposes of qualified immunity analysis. See

Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc). Morgan

argues that his right to distribute religious material is clearly established

because “regardless of forum, viewpoint discrimination regarding private

speech is unconstitutional.” This observation is generally true, but is too broad

to provide an official with fair notice of any particular right at risk of being

violated. See Camreta v. Greene, 563 U.S. ----, 131 S. Ct. 2020, 2031 (2011).

And even assuming that some kind of universal prohibition against viewpoint

discrimination could serve as a rule for the purposes of qualified immunity,

that broad proposition is not clearly established in the context of the public

schools. In fact, the Supreme Court endorsed a policy akin to viewpoint

discrimination when it allowed a school district to forbid certain teachers’

unions from accessing teacher mailboxes. Perry, 460 U.S. at 50. Although the

majority declined to label this differential treatment as viewpoint

discrimination per se, it acknowledged a school’s inherent “right to make

distinctions in access on the basis of subject matter and speaker identity.” Id.

at 49. While “these distinctions may be impermissible in a public forum,” they

are “inherent and inescapable in the process of limiting a nonpublic forum to

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activities compatible with the intended purpose of the property.” 1 Here, it is

unclear whether any sort of differential or discriminatory treatment occurred.

Assuming so, and to the extent that it did, school officials may have simply

concluded that in-class religious canvassing among adults is not compatible

with a third-grade classroom activity.

Moreover, some courts have affirmatively held that the Constitution

permits a certain degree of viewpoint discrimination in the schools. The First

and Tenth Circuits have held that viewpoint discrimination may be

permissible in the context of school-sponsored speech. 2 Another court

expressly endorsed restrictions on the use of religious materials in the

classroom. 3 And the Supreme Court itself has acknowledged that “it is not

clear” whether the need to “avoid[] an Establishment Clause violation would

justify viewpoint discrimination.” Good News, 533 U.S. at 113. We need not

determine today how these precedents might inform or influence the resolution

of the constitutional issues raised by Morgan. However, the fact that the

nation’s highest Court has conceded the lack of clarity renders suspect any

claims that the law is clearly established.

Morgan relies on two cases, Chiu and Good News, as evidence of his right

to distribute religious material to other adults. See generally id.; Chiu v. Plano

Indep. Sch. Dist., 260 F.3d 330 (5th Cir. 2001). For the reasons stated in our

1 Id; see also Greer v. Spock, 424 U.S. 828, 839–40 (1976) (upholding regulation

banning the distribution of literature on military base without prior consent of commander,

as such a restriction helps maintain the “politically neutral” nature of the establishment).

2 See Fleming v. Jefferson Cnty. Sch. Dist. R-1, 298 F.3d 918, 928 (10th Cir. 2002)

(holding that the Constitution “does not require educators’ restrictions on school-sponsored

speech to be viewpoint neutral”); accord Ward v. Hickey, 996 F.2d 448, 454 (1st Cir. 1993).

3 Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 97 (3d Cir. 2009).

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decision today, Chiu does not establish the asserted right. Good News is also

inapposite. If anything, Good News only underscores the extent to which

Morgan fails to identify any authority that clearly establishes the asserted

right. In that case the Supreme Court held that a school district cannot restrict

access to a limited public forum on the basis of viewpoint. 533 U.S. at 106. In

its extended discussion of relevant authority, the Court considered several

precedents, finding each one distinguishable on one ground or another. Id. at

114–117. Indeed, a First Amendment precedent may be rendered inapposite

by any number of factual distinctions, including the speaker, the subject, the

venue, and the timing. These factual differences give rise to legal distinctions

that affect the outcome of a case. Consequently, a precedent will only provide

fair notice to an official if it is analogous in nearly every respect to the dispute

being adjudicated. Yet Morgan does not point to any remotely analogous case

that existed at the time of Swanson’s actions. Nor am I aware of such a case.

The intersection of the First Amendment and the public school classroom

presents unusually difficult questions of law, even for the judiciary. The

Constitution zealously safeguards the individual right to practice religion, yet

it precludes any religious expression that might be seen as emblematic of the

state. In light of this tension, it seems unrealistic to expect that an educator

might somehow divine her constitutional obligations without any authority on

point.

Two years ago this Court held that—notwithstanding the vast body of

law addressing the First Amendment rights of students—the contours of the

rights were not sufficiently clear to provide Swanson fair notice of her

constitutional obligations with respect to the student gift exchange. Morgan,

659 F.3d at 382. Given the wholesale absence of authority addressing the

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rights of adults in the classroom, the contours of those rights are even less

distinct. Consequently, regardless of the actual constitutionality of Swanson’s

decision not to let Morgan distribute his religious material, I cannot conclude

that “every reasonable official” would have deemed the decision to be a

violation of a constitutional right. Cf. Ashcroft v. al-Kidd, 563 U.S. ----, 131 S.

Ct. 2074, 2083 (2011) (citation and internal quotation marks omitted).

Accordingly, I concur in affirming the dismissal.

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EDITH BROWN CLEMENT, Circuit Judge, concurring:

Regretfully, I join in the judgment affirming the district court’s decision.

I do so chiefly because the issues in this case are virtually indistinguishable

from the ones our en banc court addressed two years ago. Morgan v. Swanson,

659 F.3d 359 (5th Cir. 2011) (en banc) (“Morgan En Banc”). A divided court

there held that because clearly established law did not put the constitutionality

of the principals’ conduct pertaining to restrictions on student speech beyond

debate, the principals were entitled to qualified immunity. Id. at 371

(Benavides, J., writing for the majority on this point). Another majority found

that the principals had violated the student’s First Amendment rights. Id. at

401 (Elrod, J., writing for the majority on this point and dissenting in part).

While I joined with Judge Elrod in finding a clearly established right that was

violated by the principals’ viewpoint discriminatory restrictions on student

religious speech, that position did not garner majority support.

I see no principled distinction between restricting the right of Jonathan

Morgan to share his religious message with other students and Doug Morgan’s

right to share his religious message with other parents. By necessary

implication, Morgan En Banc resolved this issue: Doug Morgan’s First

Amendment rights were violated when Principal Swanson discriminated

against his religious viewpoint.

But, the separate majority in Morgan En Banc found that the trove of

conflicting and confusing precedent in the student speech context prevented

that right from being clearly established, and therefore could not deprive

Principal Swanson of qualified immunity for her actions. As the majority

noted,

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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].

To answer that question in the affirmative, we must be able to

point to controlling authority – or a robust consensus of persuasive

authority – that defines the contours of the right in question with

a high degree of particularity.

Morgan En Banc, 659 F.3d at 371-72 (internal quotation marks

and citations omitted).

In Morgan En Banc, there was a significant body of caselaw defending

student free speech rights in schools. See Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 506 (1969) (“It can hardly be argued that either

students or teachers shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate.”). The Chiu cases cited by Mr. Morgan are

evidence that parents do not cede their First Amendment rights when they

walk through the schoolyard gate either. Chiu v. Plano Ind. Sch. Dist., 260

F.3d 330 (2001); Chiu v. Plano Ind. Sch. Dist., 339 F.3d 273 (2003). In the Chiu

cases, parents who disagreed with the transition to a new math curriculum

were discriminated against because of their viewpoint: they were not permitted

to place materials opposed to the proposed curriculum next to materials

promoting the proposed curriculum. 260 F.3d at 351-52. The contention that

other parents or students were permitted to give out gifts with a secular

message while Mr. Morgan was not permitted to give out gifts with a religious

message is a significantly analogous situation. But here, it is not clear from

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the pleadings if the other parents in the Morgan’s school were permitted to

give gifts to other parents or whether the activity was limited to students.

Absent a comparative parent who did not suffer discrimination, Chiu’s

applicability wans.

As a practical and prudential matter, Morgan En Banc has resolved this

issue: if Jonathan Morgan’s right to share his religious message was not clearly

established enough then to deprive Principal Swanson of qualified immunity,

the same must be said here. There is no reason to believe that the court sitting

en banc would resolve the case of Mr. Morgan any differently in light of that

precedent.

The argument that the right enunciated in Morgan En Banc is not

clearly established ended with that case in regards to student free speech. The

decisive concurrence in that case – comprised of the judges who composed the

majority for each prong – sought “to state the law correctly and prevent school

officials in the future from censoring private speech by students simply because

it is religious.” Morgan En Banc, 659 F.3d at 390 (Jones, J., concurring). If

the facts of Morgan were repeated in another case today, the outcome would

be different, and rightly so. Ours was a nation founded by those who sought a

place where they could proclaim their faith freely. Our forebears would be

disappointed to see a country where students and parents were not permitted

to share a simple gift at Christmas conveying a timeless message of love and

redemption that no government should seek to suppress.

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