Donald Jackson v. Pearl Public School Distr

Case: 13-60631 Document: 00513193221 Page: 1 Date Filed: 09/15/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 15, 2015

No. 13-60631

Lyle W. Cayce

Clerk

DONALD JACKSON, as Natural Parent and Next Friend on Behalf of a

Minor; MELISSA JACKSON, as Natural Parent and Next Friend on Behalf

of a Minor,

Plaintiffs - Appellees

v.

JOHN LADNER, Individually and as Superintendent of Pearl Public Schools;

RAY MORGIGNO, Individually and as Principal of Pearl High School;

TOMMIE HILL, Individually and in her capacity under Pearl High School;

TIFFANY DURR, Individually and in her capacity under Pearl High School,

Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:09-CV-353

Before DENNIS and PRADO, Circuit Judges, and BROWN, District Judge. *

PER CURIAM: **

The plaintiffs-appellees, parents of M.J., a former Mississippi public high

school student and cheer squad member, brought this suit pursuant to 42

* District Judge of the Eastern District of Louisiana, sitting by designation.

**Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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U.S.C. § 1983 on behalf of themselves and M.J. against teachers, a principal

and the superintendent of the Pearl Public School District in Pearl,

Mississippi, alleging violations of M.J.’s constitutional rights to privacy and

freedom of speech. They allege that the violations occurred in September 2007

when Tommie Hill, a Pearl High School teacher and cheer squad sponsor,

coercively requested M.J.’s Facebook log-in information and thereafter

accessed M.J.’s Facebook messages to K.E., a senior student and a captain of

the cheer squad. Hill took these actions based on reports she received from

K.E. and other students that M.J. had cursed at and threatened K.E. on the

bus ride returning from a cheer squad appearance at a local television station

and that M.J. had continued to send K.E. threatening and imprecating

Facebook messages afterwards. After inspecting the messages exchanged, Hill

confirmed that the Facebook correspondence contained threatening and

offensive language and concerned cheer squad activities. Accordingly, Hill

suspended M.J. from cheer squad activities for two weeks and required K.E. to

perform extra squad duties, including painting. M.J.’s parents asked the

principal, Ray Morgigno, and the superintendent, John Ladner, to reverse

Hill’s disciplinary actions against M.J., but they refused. This litigation

ensued. The defendants moved for summary judgment dismissing the claims

on grounds of qualified immunity. The district court denied the defendants’

motions and they appealed.

We reverse and remand the case for further proceedings. Although we

express no opinion as to whether the school officials’ conduct was

constitutionally infirm, we conclude that the school officials are entitled to

qualified immunity because it was not “clearly established” in September 2007

that it would violate either the First or Fourth Amendments for the teacher-

sponsor, acting on reasonable suspicion that M.J. had made threatening and

offensive remarks to K.E. during and immediately after a cheer squad event,

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to demand access to M.J’s Facebook messages and to temporarily suspend her

from the squad based on her threatening and offensive remarks to K.E. related

to cheer squad activities.

I.

A.

During the fall semester in September 2007, the Pearl High School cheer

squad traveled to the WLBT television station in Jackson, Mississippi, and

appeared on the local news to promote “Food for Families,” a charitable cause.

At the time, M.J. 1 was a freshman member of the cheer squad. During the

filming at WLBT, a cameraman asked the squad to be quiet. M.J., however,

continued to talk. K.E., in her role as captain of the cheer squad, remonstrated

M.J.’s behavior and told her to be quiet. On the bus ride back to school, M.J.

and K.E. exchanged unpleasantries.

The next day, cheer squad sponsor Tommie Hill 2 was informed that M.J.

had threatened and cursed K.E. on the bus ride home from the television

station. Later, K.E. informed Hill that M.J. continued to make threatening

comments to her on the social-networking site Facebook.com. In response, Hill

spoke to the entire cheer squad about the dangers of communicating on

Facebook, including bullying, predatism, inappropriate photos, and other risks

to young people. She also reminded them that the squad represented the

school on and off campus. Hill then requested that the squad members provide

her with their Facebook usernames and passwords so that she could inspect

their Facebook accounts. According to the plaintiffs, Hill circulated a piece of

paper at the squad meeting on which Hill instructed the members to write

1 Because the students were minors at the time of the events in question, we use only

their initials to protect their identity.

2 Hill is also a teacher at Pearl High School.

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down their Facebook usernames and passwords. In an affidavit, M.J. averred

that “Ms. Hill did not give [the squad members] a choice of whether to supply

[their] Facebook account information or not” and that because she “was taught

to respect authority and do as teachers told [her] to do, [she] wrote [her]

Facebook information on the notebook.”

That evening, Hill checked the squad members’ Facebook accounts,

including the correspondence between M.J. and K.E. M.J.’s messages to K.E.

included, but were not limited to, the following statements: “i am so sick of you

bossing me around . . . and so is other people on the squad . . . even tho they

wont admit it but im not scared to . . . and im sorry for wat i did at the news

station well not really”; “i mean im not tryin to be mean at all but if i have a

problem with you . . . i will confront you about it and im not gonna be nice about

it . . . and trust me . . . i dont care who you try and get to try and back you up”;

“trust me, the next time you or anyone else goes off on me . . . im not gonna be

nice and just say ok, there will be problems . . . and i may get kicked off the

squad for it but at least it was for a good reason cuz my parents didnt raise me

to not stick up for myself . . . you best believe that i will stick up for myself

with anyone!” 3 The time stamps on M.J.’s Facebook messages to K.E. indicate

that they were sent after normal school hours, and M.J. avers that she never

accessed her Facebook account from a school computer or on school property.

Based on the offensive and threatening language contained in these

messages, Hill suspended M.J. from the cheer squad for two weeks, which

resulted in M.J. being unable to participate in two pep rallies and one game

night. However, according to M.J., she “was not allowed to participate in the

majority of cheer practices” for the 2007-2008 school year. M.J. further avers

that “[w]ith the exception of an approximately one week period[,] . . . [she] was

The record also contains K.E.’s responses to M.J., but the content of K.E.’s responses

3

is immaterial to our disposition of this appeal.

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willing and able to participate in cheer practice and performance.” In addition,

M.J. claims that she “was forced to carry the personal effects and equipment

of other cheerleaders”; was denied a participation ribbon at a cheer competition

during the 2007-2008 school year; and that Hill publicly expressed her belief

that M.J. should not receive a “spirit stick” despite being nominated for one by

a fellow cheerleader. Hill, however, denies that M.J. was actually suspended

from the squad for the balance of the school year; rather, she contends that

M.J. declined to participate on the team due to an injury. Notably, M.J. does

not claim that she was suspended from school, assigned to detention, or

otherwise restricted from attending regularly scheduled classes. Rather, her

allegations of punishment are limited to discipline affecting her participation

on the cheer squad. Hill also punished K.E. by assigning her extra squad

duties, including painting.

M.J.’s parents complained to Pearl High School Principal Ray Morgigno

about Hill’s conduct in accessing M.J.’s Facebook account and decision to

temporarily suspend M.J. from the squad, but Morgigno allegedly refused to

either reprimand Hill or reverse the punishment of M.J. The parents also

complained to Pearl Public School District Superintendent Dr. John Ladner

about Hill’s and Morgigno’s actions, but Ladner apparently also refused to

modify M.J.’s punishment or to reprimand Hill or Morgigno.

M.J. was not invited to join the cheer squad for the following school year.

According to Hill, M.J. “did not meet the tryout scoring requirements,” which

are “determined by set criteria and independent judges, who do not know these

students in advance.” M.J. also alleges that she was bullied by other students

following Hill’s access of her Facebook communications and the filing of this

lawsuit; that school officials did not intervene to protect her; and that she

suffered from anxiety and depression as a result of the treatment she received

from students and staff. In December 2009, allegedly “due to the cruel

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treatment [she] was receiving in the Pearl Public School District, [M.J.’s]

family moved out of the . . . District.”

B.

On June 16, 2009, M.J.’s parents, individually and on behalf of M.J., filed

suit in the United States District Court for the Southern District of Mississippi

against Hill, Principal Morgigno, Superintendent Ladner, and Tiffany Durr,

who allegedly was also a teacher and co-sponsor of the Pearl High School cheer

squad. 4 Pertinent to this appeal, 5 plaintiffs alleged that the four defendants

(1) violated M.J.’s right to privacy under the First and Ninth Amendments by

accessing her private Facebook messages; and (2) violated M.J.’s right to free

speech under the First and Ninth Amendments by punishing her for the

content of her private Facebook messages.

Defendants moved for summary judgment dismissing plaintiffs’ privacy

and free-speech claims on the basis of qualified immunity, 6 which the district

4 The complaint also named the Mississippi Cheerleading Academy, LLC, school

official Cory Byrd, and various John Does, but those defendants were dismissed and are not

parties to this appeal.

5 Plaintiffs also claimed that defendants violated M.J.’s constitutional rights to free

association and due process, and that defendants’ conduct constituted cruel and unusual

punishment. Plaintiffs also asserted state law claims for intentional infliction of emotional

distress, defamation of character, and civil conspiracy. Plaintiffs subsequently abandoned

their due process and civil conspiracy claims in the district court. With the exception of the

free speech and constitutional privacy claims addressed herein, all remaining claims were

thereafter dismissed by the district court.

6 Defendants first filed a document confusingly titled “Motion for Qualified

Immunity,” which the district court docketed as a motion to dismiss. However, in their

memorandum in support of that motion, defendants recited the applicable standard of review

for a motion for summary judgment. More critically, defendants also attached to that

memorandum various exhibits under seal, including an affidavit from Hill and print-outs of

the Facebook correspondence between M.J. and K.E. Further, on appeal, defendants

repeatedly characterize their unsuccessful Motion for Qualified Immunity as a motion for

summary judgment, and plaintiffs do not challenge that characterization. In light of the

foregoing, although the district court orally referred to defendants’ Motion for Qualified

Immunity as a motion to dismiss during the hearing on that motion, we will construe the

motion as one for summary judgment. Our conclusion in this regard is further buttressed by

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court denied. 7 The district court reasoned that the plaintiffs’ privacy and free-

speech claims were both grounded in “clearly established” law. Further, in

addition to concluding that plaintiffs’ claims were premised upon clearly

established law, the district court also concluded that disputed questions of

fact remained, namely whether M.J. voluntarily provided Hill with her

Facebook log-in information and also the extent of punishment that M.J.

actually received as a result of her Facebook communications with K.E. This

interlocutory appeal followed. 8

On appeal, defendants argue that the district court erroneously denied

their motion for summary judgment on the basis of qualified immunity.

II.

We have jurisdiction over the district court’s denial of defendants’ motion

for summary judgment on the basis of qualified immunity only “to the extent

that the appeal turns on a question of law.” Freeman v. Gore, 483 F.3d 404,

410 (5th Cir. 2007); see also Ortiz v. Jordan, 562 U.S. 180, 188 (2011).

Although we lack jurisdiction to review the court’s determination that a

genuine fact issue exists, we can nevertheless “review whether any factual

dispute found by the district court is material for summary judgment purposes;

the fact that it is clear from a review of the relevant hearing transcript that the district court

considered in its ruling the exhibits attached to defendants’ motion. See Kennedy v. Chase

Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004) (“If the district court considers

information outside of the pleadings, the court must treat the motion [to dismiss] as a motion

for summary judgment.”).

7The district court orally announced its ruling and articulated its reasoning at a

telephonic conference held on the motion.

8 Prior to filing their notice of appeal, defendants filed a Motion for Reconsideration.

After the filing of the notice of appeal to this court, the district court granted in part and

denied in part the defendants’ motion. The district court’s order would dismiss all claims

against Durr and the privacy claims against Morgigno and Ladner. However, because we

resolve this case on other grounds, we need not consider the effect of the district court’s Order

on the defendants’ Motion for Reconsideration. Cf. FED. R. APP. P. 12.1.

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that is, the court can consider the legal sufficiency of the facts that the district

court found to be supported by the summary judgment record.” Freeman, 483

F.3d at 410. Further, “[t]he scope of clearly established law and the objective

reasonableness of those acts of the defendant that the district court found the

plaintiff could prove at trial are legal issues we review de novo.” Thompson v.

Upshur Cnty., 245 F.3d 447, 456 (5th Cir. 2001).

In the instant case, the district court made two rulings, one of which is

immediately appealable under the foregoing principles. The district court held,

first, that plaintiffs’ complaint stated a claim for the violation of M.J.’s “clearly

established” constitutional rights to free speech under the First Amendment

and to be free from unreasonable searches and seizures under the Fourth

Amendment; and second, that genuine issues of fact remained for trial with

respect to the voluntariness of M.J.’s consent for Hill to access her private

Facebook account, and with respect to what type and measure of punishment

that M.J. was subjected as a result of her allegedly inappropriate Facebook

communications with K.E. Only the first constitutional holdings involve “a

‘purely legal issue,’” viz., “the determination of what law was ‘clearly

established’ at the time the defendant acted.” Ortiz, 562 U.S. at 188 (quoting

Johnson v. Jones, 515 U.S. 304, 313 (1995)). Accordingly, the defendants may

immediately appeal the order premised upon those holdings and we therefore

will limit our review to considering whether the defendants violated law that

was “clearly established” at the time the events giving rise to this appeal took

place. See Mitchell v. Forsyth, 472 U.S. 511, 528–29 (1985).

III.

Qualified immunity shields federal and state officials from money

damages unless a plaintiff shows (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. See Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct.

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2074, 2080 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The

Court recently reaffirmed that lower courts have discretion to decide which of

the two prongs of qualified-immunity analysis to tackle first. Id. (citing

Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

“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,

“but existing precedent must have placed the statutory or constitutional

question beyond debate.” Id. As explained herein, the two constitutional

questions in this case fall short of that threshold.

A.

First, plaintiffs contend that M.J.’s constitutional right to privacy 9 was

violated when Hill obtained M.J.’s Facebook log-in information, subsequently

searched her account, and then disseminated the content of her messages with

K.E to other school officials. In evaluating this claim, we will take “as given”

that M.J. did not consent to the search of her Facebook profile. See Johnson,

515 U.S. at 319 (“When faced with an argument that the district court

9 In their complaint, plaintiffs asserted a claim for the violation of M.J.’s right to

privacy under the First, Ninth, and Tenth Amendments. However, as the district court’s

order and the parties’ briefing make clear, plaintiffs are in effect alleging a violation of M.J.’s

reasonable expectation of privacy guaranteed by the Fourth Amendment. Because the

Fourth Amendment more squarely governs the claim plaintiffs assert, we analyze M.J.’s

privacy claim under the relevant Fourth Amendment standards. See, e.g., Graham v. Connor,

490 U.S. 386, 394–95 (1989) (“Because the Fourth Amendment provides an explicit textual

source of constitutional protection against . . . physically intrusive governmental conduct,

that Amendment, not the more generalized notion of ‘substantive due process,’ must be the

guide for analyzing these claims.”); Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (citing

Graham v. Connor for the proposition that “constitutional claims must be addressed under

the most applicable provision”).

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mistakenly identified clearly established law, the court of appeals can simply

take, as given, the facts that the district court assumed when it denied

summary judgment for that (purely legal) reason.”).

In New Jersey v. T.L.O., 469 U.S. 325 (1985), the Supreme Court

established a two-step inquiry for determining the reasonableness of a school

official’s decision to search a student. First, the Court explained, the search

must be “‘justified at its inception’” by the presence of “reasonable grounds for

suspecting that the search will turn up evidence that the student has violated

or is violating either the law or the rules of the school.” Id. at 342. Second, the

search must be “permissible in its scope,” which is achieved “when the

measures adopted are reasonably related to the objectives of the search and

not excessively intrusive in light of the age and sex of the student and the

nature of the infraction.” Id. However, although these constitutional

principles are now well-settled, this does not end our inquiry into whether the

defendants in the instant case violated “clearly established” Fourth

Amendment law. Rather, in determining whether a right was “clearly

established” at the time of an official action, we must look at the right violated

in a “particularized sense,” rather than “at a high level of generality.” See

Brosseau v. Haugen, 543 U.S. 194, 198–99 (2004) (per curiam). As the Supreme

Court recently has emphasized, however, “there is no need that ‘the very action

in question [have] previously been held unlawful.’” Safford Unified Sch. Dist.

No. 1 v. Redding, 557 U.S. 364, 377 (2009) (modification in original) (quoting

Wilson v. Layne, 526 U.S. 603, 615 (1999)). Outrageous conduct obviously will

be unconstitutional. Id. “But even as to action less than an outrage, ‘officials

can still be on notice that their conduct violates established law . . . in novel

factual circumstances.’” Id. at 377–78 (quoting Hope v. Pelzer, 536 U.S. 730,

741 (2002)). The salient question therefore is whether the defendants here had

“fair warning” that their conduct violated the Fourth Amendment, Hope, 536

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U.S. at 739–40, meaning that the unlawfulness of their actions must be

“apparent” in light of pre-existing law, Anderson, 483 U.S. at 640. The

ultimate focus of our inquiry must be the “objective legal reasonableness” of

the defendants’ actions assessed in light of the “clearly established” law at the

time of the events in question. See Wilson, 526 U.S. at 614 (internal quotation

marks omitted).

Applying these principles to the instant case, we are compelled to

conclude that the defendants are entitled to qualified immunity on plaintiffs’

Fourth Amendment claim. At the time Hill requested and obtained access to

M.J.’s Facebook messages—in September 2007—no precedent had held that

the Fourth Amendment proscribed Hill’s actions, viz., the search of a student’s

electronic communications pertaining to school activities based on a reasonable

belief that those communications directed threats and offensive language to

another student about school activities and where those communications were

a continuation of a quarrel that began during a school-related activity. To the

contrary, as explained above, the Supreme Court’s 1985 decision in T.L.O. held

that a public school official ordinarily may search a student (and in the

circumstances of that case, the student’s purse) if, at the inception of the

search, the official has a reasonable suspicion “that the search will turn up

evidence that the student has violated or is violating either the law or the rules

of the school.” 469 U.S. at 341–42. The Court qualified that rule by stating

that “[s]uch a search will be permissible in its scope when the measures

adopted are reasonably related to the objectives of the search and not

excessively intrusive in light of the age and sex of the student and the nature

of the infraction.” Id. at 342. It was not until 2009 that the Court clearly

established that the Fourth Amendment prohibited the strip search of a 13-

year-old female student upon reasonable suspicion that she had brought

forbidden prescription and over-the-counter medications to school. Redding,

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557 U.S. at 368. However, in light of the uncertainty about the scope of schools’

authority to conduct strip searches pursuant to T.L.O., the Court in Redding

granted qualified immunity to the school officials notwithstanding the fact that

the strip search in that case violated the Fourth Amendment. Id. at 378–79.

Similar reasoning compels the grant of qualified immunity here. The

undisputed evidence shows that M.J. and K.E.’s quarrel arose in connection

with the cheer squad’s visit to WLBT and continued on the bus ride back to

school from the station. Thereafter, during non-school hours, M.J. sent K.E.

the online messages that prompted K.E. to complain to Hill that M.J. had made

threats and offensive remarks to her via Facebook. Based on K.E.’s

allegations, Hill requested access to M.J.’s Facebook account and then read the

messages between M.J. and K.E. Although the plaintiffs contest the

characterization of M.J.’s messages as threatening, the plaintiffs have cited to

no record evidence to contradict the summary-judgment evidence presented by

defendants reflecting that Hill was informed that M.J. had threatened and

cursed at K.E. on the return school-bus ride from WLBT. Nor have plaintiffs

offered evidence contradicting the fact that Hill was informed by K.E. that M.J.

had continued making these threatening remarks related to cheer squad

activities on Facebook. In light of these unique facts and the dearth of

pertinent case law, we conclude that school officials acting in 2007 did not have

fair warning that they could not, consistent with the Fourth Amendment,

access a student’s social-networking account upon receiving information that

the student had sent threatening online messages to another student, where

those remarks concerned school activities and where the quarrel began at a

school-related function. See Porter v. Ascension Parish Sch. Bd., 393 F.3d 608,

618 (5th Cir. 2004) (“Qualified immunity should be recognized if officials of

reasonable competence could disagree on whether a particular action is

unlawful.”) (internal quotation marks omitted). In other words, whether or not

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the individual defendants’ conduct here violated M.J.’s right to privacy, that

Fourth Amendment right nevertheless was not “clearly established” in these

unique factual circumstances at the time defendants acted. See al-Kidd, 131

S. Ct. at 2083 (observing that a constitutional right is “clearly established”

when “existing precedent . . . [has] placed the . . . constitutional question

beyond debate”). Accordingly, while we express no opinion regarding whether

the individual defendants’ conduct violated the Fourth Amendment, we

conclude that the defendants are nevertheless entitled to qualified immunity

with respect to M.J.’s constitutional privacy claim because the right asserted

by plaintiffs was not “clearly established” as of September 2007 in light of the

particular facts of this case. See, e.g., Redding, 557 U.S. at 368. The district

court therefore erred in denying the defendants qualified immunity with

respect to this claim.

B.

The defendants further contend that the district court erred in denying

them qualified immunity with respect to M.J.’s First Amendment free-speech

claim. In evaluating whether the defendants’ conduct violated M.J.’s “clearly

established” First Amendment rights, we will take “as given” M.J.’s contention

that she was punished for the content of her online messages by, inter alia,

being suspended from the cheer squad for the balance of the school year. See

Johnson, 515 U.S. at 319.

It is axiomatic that “the First Amendment prohibits not only direct

limitations on speech but also adverse government action against an individual

because of her exercise of First Amendment freedoms.” Colson v. Grohman,

174 F.3d 498, 508 (5th Cir. 1999). Further, it can hardly be disputed that

Internet speech was protected by the First Amendment at the time the events

in this case occurred. See, e.g., Ashcroft v. ACLU, 542 U.S. 656, 672–73 (2004);

Reno v. ACLU, 521 U.S. 844, 868–69 (1997). It has likewise long been

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established that students do not “shed their constitutional rights to freedom of

speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

However, while these general First Amendment principles were firmly

established in 2007, this is not dispositive of our inquiry into whether M.J.’s

First Amendment rights were “clearly established” at the time of defendants’

conduct given the unique facts of this case. See, e.g., Kinney v. Weaver, 367

F.3d 337, 350 (5th Cir. 2004). Rather, consistent with our preceding Fourth

Amendment analysis, we also must determine whether or not it “would be

clear” to a reasonable school official in the defendants’ position that punishing

M.J. for the content of her Facebook messages would violate the First

Amendment given the particular circumstances here. See Porter, 393 F.3d at

620 (granting qualified immunity to school official on plaintiff’s First

Amendment claim where it would not “be clear to a reasonable [school] official

that sanctioning [plaintiff] based on the content of his [speech] was unlawful

under the circumstances”). We agree with defendants that the answer is no.

At the time of the events in question, insufficient precedent existed to

provide school officials with “fair warning” that the defendants’ conduct

violated the First Amendment. See Bush v. Strain, 513 F.3d 492, 501–02 (5th

Cir. 2008) (observing that the “central concept” of qualified immunity is that

of “fair warning”). Indeed, less than three years prior to the defendants’

conduct in the instant case, our own court observed that First Amendment case

law did not provide “clear guidance” and had sent “inconsistent signals” with

regard to “how far school authority to regulate student speech reaches beyond

the confines of the campus.” Porter, 393 F.3d at 620. Further, while the speech

at issue in Porter occurred entirely outside the school environment, 10 the off-

10The drawing at issue in Porter “was composed off-campus, displayed only to

members of [the student’s] own household, stored off-campus, and not purposely taken by

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campus speech at issue here arose during and in the course of school-related

activities and was a continuation of a quarrel that began on the bus ride home

from a school-related event. Moreover, unlike in Porter, the undisputed

summary-judgment evidence shows that M.J. was not suspended from school

on the basis of her speech but rather suspended from her participation on the

cheer squad. Our careful review of relevant case law has uncovered no

intervening precedent between Porter and the underlying events here that

would provide “every reasonable [school] official” with sufficient notice that the

defendants’ actions violated the First Amendment. See Al-Kidd, 131 S. Ct. at

2083. Thus, while we express no opinion as to whether the defendants’ conduct

conflicted with the First Amendment, we nevertheless conclude that the

district court erred in denying the defendants qualified immunity on M.J.’s

free-speech claim given the unique factual circumstances of this case.

IV.

For these reasons, the district court’s order denying qualified immunity

is REVERSED. The case is therefore REMANDED for proceedings consistent

with this opinion.

him to [school] or publicized in a way certain to result in its appearance at [school].” 393 F.3d

at 620.

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