C.H. v. Oliva

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

8-28-2000

C.H. v. Oliva

Precedential or Non-Precedential:

Docket 98-5061

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Filed August 28, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-5061

C.H., AS GUARDIAN AD LITEM OF Z.H., A MINOR,

AND C.H., INDIVIDUALLY

Appellant

v.

GRACE OLIVA; GAIL PRATT; PATRICK JOHNSON;

MEDFORD TOWNSHIP BOARD OF EDUCATION;

LEO KLAGHOLTZ, Commissioner of Education;

THE STATE OF NEW JERSEY

DEPARTMENT OF EDUCATION

Appeal from the United States District Court

For the District of New Jersey

(D.C. Civil No. 96-cv-02768)

District Judge: Honorable Joseph H. Rodriguez

Argued June 2, 1999

BEFORE: STAPLETON and ROTH, Circuit Judges, and

LONGOBARDI,* District Judge

Reargued En Banc February 16, 2000

BEFORE: BECKER, Chief Judge, SLOVITER, MANSMANN,

GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH,

MCKEE, RENDELL, BARRY and STAPLETON,

Circuit Judges

(Opinion filed: August 28, 2000)

_________________________________________________________________

* Honorable Joseph J. Longobardi, Senior United States District Judge

for the District of Delaware, sitting by designation.

F. Michael Daily, Jr.

Quinlan, Dunne & Daily

16 North Centre Street

Merchantville, NJ 08109-2519

and

Eric W. Treene

Kevin J. Hasson (Argued)

The Becket Fund for Religious

Liberty

2000 Pennsylvania Avenue, N.W.

Suite 3200

Washington, DC 20006

Attorneys for Appellant

Betsy G. Liebman

Capehart & Scatchard

8000 Midlantic Drive

Laurel Corporate Center, Suite 300

Mount Laurel, NJ 08054

and

Michael P. Madden (Argued)

Madden, Madden & Del Duca

108 Kings Highway East, Suite 200

P.O. Box 210

Haddonfield, NJ 08033

and

John K. Worthington (Argued)

Office of Attorney General of

New Jersey

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Attorneys for Appellees

Marc D. Stern

American Jewish Congress

15 East 84th Street

New York, NY 10028

Attorney for Amicus-Appellee

American Jewish Congress

2

OPINION OF THE COURT

STAPLETON, Circuit Judge:

C.H., as guardian ad litem of Z.H., appeals from an order

of the District Court dismissing her complaint in this civil

rights action. The complaint alleges that the First

Amendment rights of Z.H., a minor, were violated on two

occasions: once when he was a kindergarten student and

once when he was in the first grade.1 The District Court

held, inter alia, that it had no jurisdiction over the

defendant Department of Education of the State of New

Jersey and that no constitutional violation occurred on

either occasion. It entered judgment on the pleadings in

favor of all of the defendants.

This en banc court finds itself equally divided on the

issue of whether judgment was properly entered in favor of

the defendants other than the Department of Education on

the First Amendment claim arising from the first grade

episode. Accordingly, we will affirm the District Court's

judgments in favor of those defendants on that basis

without further explication. While we agree with the District

Court that the Department of Education is immune from

suit in a federal court under the Eleventh Amendment, we

will vacate the judgment in its favor and remand with

instructions to dismiss the claims against it for lack of

jurisdiction. With respect to the other defendants, we

conclude that the complaint fails to state claims against

them arising out of the kindergarten episode. We will

remand, however, to give C.H. an opportunity to cure the

deficiencies we have identified if she is able to do so.

I.

The following facts are affirmatively alleged in the

_________________________________________________________________

1. The complaint purports to state claims under both the Free Speech

Clause and the Establishment Clause of the First Amendment. Given our

resolution of this appeal, it is unnecessary for us to distinguish in this

opinion between the two theories of liability.

3

complaint. In the Fall of 1994, Z.H. was a kindergarten

student at the Haines Elementary School, a public school,

in Medford, New Jersey. Defendant Pratt was the principal

of that school; defendant Johnson was the Superintendent

of Schools in the Medford School District; and defendant

Medford Township Board of Education owned and operated

the public schools in the District. Defendant Klagholtz was

the Commissioner of Education of the State of New Jersey.

He and defendant Department of Education of the State of

New Jersey are alleged to be responsible for the general

supervision of public education in the State. Defendant

Oliva was to be Z.H.'s first grade teacher in the following

year and was not involved in the relevant events in 1994.

In the spirit of the Thanksgiving holiday, Z.H.'s teacher

asked the students to make posters depicting what they

were "thankful for." Z.H. produced a poster indicating that

he was thankful for Jesus. The allegations with respect to

the remainder of the kindergarten episode are as follows:

13. Z.H.'s poster along with those of his classmates

were subsequently placed on display in the hallway of

the school. Subsequently, employees of Defendant,

Township of Medford Board of Education, removed

Z.H.'s poster because of its religious theme.

14. Said removal occurred on a day when Z.H.'s

kindergarten teacher was absent. Upon her return,

said teacher properly returned the poster to the

hallway, although this time the poster was placed at a

less prominent location at the end of said hallway.

15. Both Z.H. and C.H. were made aware of the

removal of the poster because of its religious theme.

The removal is thus twice alleged to have been motivated

by the religious theme of the poster, but that removal is

alleged to have been done by unidentified "employees of

Defendant." On the other hand, the restoration to a "less

prominent location" is attributed to Z.H.'s teacher who is

not joined as a defendant and who is not alleged to have

acted because of the poster's religious theme. None of the

defendants in the case is alleged to have participated in, or

been aware of, the decision to remove the poster or to

restore it to a "less prominent location."

4

II.

The Department of Education is a state agency and as

such is immune from suit in a federal court without regard

to the nature of the relief sought. See Pennhurst State Sch.

& Hosp. v. Halderman, 465 U.S. 89, 100-101 (1984).

Accordingly, we agree with the District Court that this suit

could not go forward against the Department of Education.

Having concluded that it was immune from suit under the

Eleventh Amendment, however, it should have dismissed

the claim against the Department for want of jurisdiction,

rather than entering judgment in its favor. See Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 63 (1996); Wheeling &

Erie Ry. Co. v. Public Utility Comm'n, 141 F.3d 88, 91 n.3

(3d Cir. 1998); Sullivan v. Barnett, 139 F.3d 158, 179 (3d

Cir. 1998).

III.

It is, of course, well established that a defendant in a civil

rights case cannot be held responsible for a constitutional

violation which he or she neither participated in nor

approved. See Robinson v. City of Pittsburgh, 120 F.3d

1286, 1293 (3d Cir. 1997); Baker v. Monroe Township, 50

F.3d 1186, 1190 (3d Cir. 1995). There is no vicarious,

respondeat superior liability under S 1983. See Monell v.

New York City Dep't of Soc. Servs., 436 U.S. 658, 694

(1978); Hopp v. City of Pittsburgh, 194 F.3d 434, 441 (3d

Cir. 1999). Moreover, a school board can be held

responsible for a constitutional violation of a teacher only if

the violation occurred as a result of a policy, custom or

practice established or approved by the board. See Monell,

436 U.S. at 694; Woodwind Estates, Ltd. v. Gretkowski, No.

99-3280, 2000 WL 223590, at *7 (3d Cir. 2000); Hopp, 194

F.3d at 441.

As we have noted, there is no allegation that Oliva, Pratt,

Johnson or the Board of Education participated in or

approved the removal or restoration decisions and the

Board of Education is not alleged to have established or

approved any policy, custom or practice. Similarly, it is not

alleged that the State Commissioner established or

approved a policy, practice or custom causally related to

5

the removal or restoration decisions. Rather the allegation

as to the Commissioner is that he "failed to exercise [his]

supervisory powers in a fashion which would protect the

constitutional rights of students such as Z.H." (A. 11).

As the District Court recognized, a state official who is

acting in violation of the United States Constitution can be

sued for prospective equitable relief. See Ex parte Young,

209 U.S. 123 (1908). A state official may be held

responsible under S 1983 for exercising or failing to exercise

supervisory authority, however, only if that official "has

exhibited deliberate indifference to the plight of the person

deprived." Sample v. Diedes, 885 F.2d 1099, 1118 (3d Cir.

1989). Accordingly, a plaintiff asserting a failure to

supervise claim must not only identify a specific

supervisory practice that the defendant failed to employ, he

or she must also allege "both (1) contemporaneous

knowledge of the offending incident or knowledge of a prior

pattern of similar incidents, and (2) circumstances under

which the supervisor's inaction could be found to have

communicated a message of approval." Bonenberger v.

Plymouth Township, 132 F.3d 20, 25 (3d Cir. 1997) (quoting

Colburn v. Upper Darby Township, 838 F.2d 663, 673 (3d

Cir. 1988). Here the sole allegation against the

Commissioner is that he failed to supervise in a way that

would have prevented the alleged violation of Z.H.'s First

Amendment rights. That is insufficient.

IV.

This is not a situation in which the complaint is merely

lacking in factual detail. It is a situation in which the fair

inference from the facts alleged is that the defendants did

not play any role in the challenged decisions and there is

no allegation, even conclusory, to the contrary. Accordingly,

this is a situation in which it is very likely that the Court

is being asked to resolve an important issue of

constitutional law that is a purely hypothetical one as far

as these parties are concerned.

While the removal is alleged to have been motivated by

the religious theme of the poster, it is not alleged that the

removal occurred as a result of any school policy against

6

the exhibition of religious material. To the contrary, the

affirmatively alleged prompt return of the poster to the

display vouches for the absence of such a policy. Also

noticeably absent from the complaint is any allegation that

the restoration to "a less prominent place" was the result of

a school policy or an authoritative directive from Principal

Pratt or Superintendent Johnson. To the contrary, C.H.'s

brief before the District Court indicates that there was no

such policy or directive and that the placement was the

product of an ad hoc "compromise" among peers. The brief

explains C.H.'s understanding that Z.H.'s "kindergarten

teacher on her own initiative returned the poster to public

display, but . . . as a compromise to those who were against

any display of the poster, agreed to place it in a less

prominent position." Plaintiff 's Brief in Opposition at 1 n.2.

We decline to address the tendered constitutional issue

under these circumstances. On the other hand, we

acknowledge that the absence of allegations of participation

was not pressed in support of the defendants' motion for

judgment on the pleadings and that, if it had been, C.H.

would undoubtedly have been given an opportunity to

amend her complaint. Moreover, we cannot rule out the

possibility that C.H. might be able to establish through

amendment that an actual case or controversy exists

between the parties. Under these circumstances, we

conclude that the prudent course is to remand this case to

the District Court with instructions to provide C.H. with an

opportunity to amend. If she is unable to allege personal

involvement in the kindergarten episode on the part of any

of the defendants, the complaint should be dismissed. If

personal involvement is alleged, the District Court should

conduct further proceedings consistent with this opinion.

We will vacate the judgment of the District Court entered

in favor of the Department of Education and will remand

with instructions to dismiss the complaint against it for

want of jurisdiction. We will affirm the judgment of the

District Court with respect to the claims against the

remaining defendants arising from the events occurring

during Z.H.'s first grade year. We will vacate the judgment

of the District Court with respect to the remaining claims

and will remand with instructions to provide C.H. an

7

opportunity to amend the allegations of her complaint

concerning them.

8

ALITO, Circuit Judge, with whom MANSMANN, Circuit

Judge, joins, dissenting:

In accordance with tradition, I will not comment on the

decision of the en banc court insofar as it affirms, by an

equally divided vote, the judgment of the District Court

regarding Zachary Hood's1 wish to read the story, "A Big

Family," to his class. I must write, however, regarding the

full court's decision with respect to Zachary's Thanksgiving

poster. Instead of confronting the First Amendment issue

that is squarely presented by that incident, the court ducks

the issue and bases its decision on a spurious procedural

ground never raised by the defendants--viz., that the

complaint does not adequately allege facts providing a basis

for holding any of the defendants responsible for the

treatment of the poster. I dissent.

I.

The incident concerning the Thanksgiving poster

occurred when Zachary was in kindergarten at the Haines

Elementary School in Medford, New Jersey. As alleged in

the complaint, this is what happened. With Thanksgiving

approaching, Zachary's teacher told the students to make

posters depicting what they were "thankful for." Zachary

drew a picture of Jesus. All of the pupils' posters, including

Zachary's, were initially hung in the hallway of the school,

but on a day when Zachary's teacher was absent, unnamed

employees of the school board removed the poster"because

of its religious theme." The next day, Zachary's teacher put

the picture back on the wall -- but this time in a less

prominent spot at the end of the hall.

The following year another, similar incident occurred

while Zachary was in Grace Oliva's first-grade class at the

same school. As a reward for achieving a certain degree of

proficiency in reading, Ms. Oliva invited students to bring

in a book to read to the class. "The only condition on the

selection was that it would be reviewed first by[Ms. Oliva]

_________________________________________________________________

1. Although the complaint identified Zachary and his mother, Carol

Hood, by initials, rather than by name, their names are used in the

plaintiff 's most recent brief, and I therefore use them in this opinion.

9

to insure that its length [and] complexity were appropriate

for the first grade." Zachary qualified to read a story to the

class and brought to school a book entitled The Beginner's

Bible: Timeless Children's Stories. Zachary wanted to read

the following story, called "A Big Family," which represents

an adaptation of the story of the reconciliation of Jacob and

Esau from Genesis 29:1-33:20:

Jacob traveled far away to his uncle's house. He

worked for his uncle taking care of sheep. While he

was there, Jacob got married. He had twelve sons.

Jacob's big family lived on his uncle's land for many

years. But Jacob wanted to go back home. One day,

Jacob packed up all his animals and his family and

everything he had. They traveled all the way back home

to where Esau lived. Now Jacob was afraid that Esau

might still be angry at him. So he sent presents to

Esau. He sent servants who said, "Please don't be

angry anymore." But Esau wasn't angry. He ran to

Jacob. He hugged and kissed him. He was happy to see

his brother again.

Ms. Oliva told Zachary that he could not read this story

to the class "because of its religious content." Instead, she

permitted Zachary to read the story to her in private. Other

students, however, were allowed to read their favorite

stories to the class.

Upon learning of this incident, Zachary's mother, Carol

Hood, spoke with Ms. Oliva, who informed her that Zachary

could not read the story to the class "because it might

influence other students." Ms. Hood next spoke with Gail

Pratt, the school principal, who said that reading the story

"was the equivalent of `praying'." Noting that she had

received complaints in the past, Ms. Pratt stated that the

story "might upset Muslim, Hindu or Jewish students." She

added that there was "no place in the public school for the

reading of the Bible" and advised: " `[M]aybe you should

consider taking your child out of public school, since you

don't appear to be public school material.' " Ms. Pratt noted

that "her position was fully supported by various legal

authorities." Ms. Hood made an appointment to speak

again with Zachary's teacher, but she did not appear. Ms.

Hood's lawyer then contacted Patrick Johnson, the school

10

superintendent, and demanded that Zachary be allowed to

read the story to the class and that Ms. Pratt apologize for

her conduct. The superintendent did not respond.

Ms. Hood, in her individual capacity and as Zachary's

guardian ad litem, filed a two-count complaint in federal

district court. Count I alleged that Ms. Oliva, Ms. Pratt, Mr.

Johnson, and the Medford Board of Education (hereinafter

collectively "the Medford defendants") had violated

Zachary's constitutional right to freedom of expression.

Count II alleged that the New Jersey Commissioner of

Education and the New Jersey Department of Education

had aided in this violation. Count II sought an order

requiring the state to implement policies to protect students

who wish to engage in the expression of religious views.

The defendants moved for judgment on the pleadings. In

light of the putative pleading defect on which the full court

now relies in relation to the poster incident, it is important

to note the basis for the Medford defendants' motion. The

Medford defendants did not argue that there were any

formal defects in the complaint, and they certainly did not

suggest that the claim concerning the poster should be

dismissed because it did not state a basis for holding them

responsible for the treatment of the poster. On the

contrary, the Medford defendants acknowledged that

judgment on the pleadings would be proper only if"the

plaintiff could prove no set of facts which would entitle [her]

to relief." Brief in Support of Rule 12(c) Motion for

Judgment on Pleadings on Behalf of Defendants Medford

Township Board of Education, Grace Oliva, Gail Pratt and

Patrick Johnson. They also acknowledged, for purposes of

the motion, that they were responsible for the removal and

replacement of the poster, and they argued that their

conduct was fully justified. They stated:

For purposes of the instant motion only, defendants do

not dispute plaintiff 's contention that the temporary

removal and subsequent relocation of plaintiff 's poster

was related to the poster's religious theme.

Id. at 19. They continued:

[D]efendants merely relocated the poster to another

location in the same hallway. Plaintiff cannot

11

reasonably contend that defendants inhibited religion

by temporarily removing the poster and subsequently

relocating it to another location in the same hallway.

Id. at 20 (emphasis added). In their reply brief in support

of their motion, the Medford defendants stated:

[T]he Medford Defendants' temporary removal and

almost immediate return of the poster to the hallway

wall supports the inescapable conclusion that no such

hostility existed.

Medford Defendant's 12(c) Reply Br. at 5 (emphasis added).

In granting the defendants' motion for judgment on the

pleadings, the District Court did not rely upon-- or even

note -- any formal defect in the complaint. On the contrary,

like the Medford defendants themselves, the District Court

accepted the fact that the Medford defendants were

responsible for the removal of the poster and its relocation

to a less conspicuous spot. The District Court stated:

The Medford defendants concede that the poster was

removed and relocated because it had a religious

theme.

C.H. v. Oliva, 990 F. Supp. 341, 354 (D.N.J. 1997).

However, the Court held that the Medford defendants did

not violate Zachary's right to freedom of expression because

"relocating the poster of Jesus . . . [was] reasonably related

to legitimate pedagogical concerns." Id. at 353.

On appeal, the Medford defendants took the same

approach that they had in the District Court. They did not

assert that there were any formal defects in the complaint,

and they did not dispute, for purposes of the appeal, that

they were responsible for the treatment of the poster.

Rather, they argued that their removal and relocation of the

poster were constitutional. The thrust of their argument

was as follows:

The educators of Z.H.'s school were correctly

concerned about the impact of the prominent display of

Z.H.'s poster upon their young students. Students of a

non-Christian faith may have felt that the prominent

display of the poster constituted a comment by the

12

school on the correctness of Christianity or an

endorsement of the Christian religion. These children

may also have felt the prominent display of the poster

to be a negative comment on their own religious beliefs.

The Medford defendants should not be liable . . . for

their concerns about the impact of Z.H.'s poster on his

fellow classmates.

Medford Appellees' Br. at 14.

Both of the opinions issued by the panel before rehearing

en banc was granted affirmed the District Court on the

merits; neither was based upon -- or even hinted at -- any

formal defects in the complaint. The first opinion was

unpublished and disposed of the claims relating to"A Big

Family" and the poster in less than two full typewritten

pages. After the plaintiffs petitioned for rehearing en banc,

the panel granted rehearing and issued a for-publication

opinion. C.H. v. Oliva, 195 F.3d 167 (3d Cir. 1999). Like the

Medford defendants' brief, this opinion did not dispute that

the Medford defendants were responsible for the removal

and relocation of the poster to a less prominent spot. The

opinion stated that "the issue to be resolved is whether the

school's decision to temporarily remove Z.H.'s poster was

reasonably related to a legitimate pedagogical concern." Id.

at 175. In striking contrast with the position taken in the

opinion of the en banc court, the panel opinion never

disputed that the Medford defendants were responsible for

the treatment of the poster. Indeed, the for-publication

panel opinion deferred to the professional judgment of the

school officials that the temporary removal of the poster

was appropriate for pedagogical reasons! The panel wrote:

Given the sensitivity of the issues raised by student

religious expression, coupled with the notable

immaturity of the students involved and the relatively

public display of the posters in the school hallway, the

school's temporary removal of the poster does not

violate the First Amendment rights of the student

artist. As we have indicated, decisions on issues of this

kind necessarily involve fact-sensitive exercises of

discretion by school authorities and reservation of a

brief period for deliberation is thus a measure

reasonably related to legitimate pedagogical concerns.

13

Id. (emphasis added). Plainly, the panel could not have

deferred to the professional judgment of the school

authorities if, as the full court now believes, the complaint

does not even allege that those officials had any role in the

poster's removal.

The for-publication panel opinion took a similar approach

with respect to the relocation of the poster to a less

prominent spot. The panel observed: "We decline plaintiff 's

invitation to require the District Court to review and

regulate the school's placement of its students' artwork." Id.

at 176 n.3 (emphasis added).

Following the issuance of this panel decision, the court

granted rehearing en banc and permitted the parties to

submit supplemental briefs. Once again, the Medford

defendants did not contend that the District Court's

decision regarding the poster should be affirmed on the

ground that the complaint did not adequately allege that

they were responsible for the poster's treatment. On the

contrary, they defended the treatment of the poster on the

merits, arguing as follows:

Z.H. did not have any particular right to have his

poster displayed in a prominent location and a

prominent display of the poster may have the

impermissible effect of conveying a message of

endorsement of Christianity. The Medford Defendant's

(sic) actions were thus reasonably related to legitimate

pedagogical concerns, namely the concern that their

young charges might have construed . . . the

prominent display of Z.H.'s poster as the school's

approval of Z.H.'s religion.

Medford Appellees' Supplemental Br. at 9.

The en banc court heard extensive oral argument. Not

one word was mentioned about the supposed failure of the

complaint to plead in sufficient detail the basis for holding

the Medford defendants liable for the removal and

relocation of the poster.

Despite all this, the full court sua sponte raises the issue

of the adequacy of the complaint and, without even

permitting the plaintiff to comment on this new issue, the

14

court declines to reach the merits of the appeal and instead

remands the case so that the plaintiff can seek to amend

the complaint.

II.

A. Under the liberal pleading regime of the Federal Rules

of Civil Procedure, the existing complaint is adequate.

Under Fed. R. Civ. P. 8(a)(2), a complaint must contain "a

short and plain statement of the claim showing that the

pleader is entitled to relief," and under Fed. R. Civ. P. 8(f),

"[a]ll pleadings shall be construed as to do substantial

justice." A complaint must only give "fair notice of what the

plaintiff 's claim is and the grounds upon which it rests,"

Conley v. Gibson, 355 U.S. 41, 47 (1957). "[A] complaint

should not be dismissed for failure to state a claim unless

it appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him to

relief." Id. at 45-46; see also Scheuer v. Rhodes, 416 U.S.

232, 236 (1974).2

[P]leadings under the rules simply may be a general

summary of the party's position that is sufficient to

advise the other party of the event being sued upon, to

provide some guidance as to what was decided for

purposes of res judicata, and to indicate whether the

case should be tried to the court or to a jury. No more

is demanded of the pleadings than this.

5 C. Wright & A. Miller, Federal Practice and Procedure

S 1202 at 69-70(1969)(footnote omitted).

Under these standards, the complaint in this case

adequately avers a basis for holding the Medford

defendants responsible for the treatment of the poster, i.e.,

its temporary removal and subsequent relocation to a less

conspicuous place in the hall. While I think that the

complaint adequately asserts a claim against all of the

Medford defendants, I will focus on one defendant, Gail

Pratt, the school principal. I do this because the sufficiency

_________________________________________________________________

2. This same principle governs a motion under Rule 12(c). 5A C. Wright

& A. Miller, Federal Practice and ProcedureS 1368 at 494-95 & n.34

(2000 Supp.)(citing cases).

15

of the complaint with respect to her is clear and because,

if that is so, the court must confront the merits of the

plaintiff 's First Amendment claim whether or not the

allegations pertaining to the other defendants are also

adequate.

The complaint in this case alleges that "employees of

Defendant, Township of Medford Board of Education,

removed [Zachary's] poster because of its religious theme"

on a day when Zachary's regular teacher was not present.

The complaint also alleges that the next day Zachary's

teacher put the poster back up on the wall, but in a less

conspicuous spot at the end of the hall. Furthermore, the

complaint avers facts from which it may be reasonably

inferred that Pratt had received complaints about religious

expression in the school (see Complaint para. 21), had

consulted "legal authorities" regarding the issue (id.), and

had developed a "position" that was not receptive to such

expression. Id. (" `[M]aybe you[Carol Hood] should consider

taking your child out of public school, since you don't

appear to be public school material.' "). In view of these

allegations, it cannot be said "beyond doubt that the

plaintiff can prove no set of facts in support of h[er] claim

which would entitle h[er] to relief." Conley v. Gibson, 355

U.S. 41, 45-46 (1957).

Pratt could be held responsible if she directed that the

poster be treated as it was or if they knew about and

acquiesced in the treatment. See, e.g. , Robinson v. City of

Pittsburgh, 120 F.3d 1286, 1293 (3d Cir. 1997); Baker v.

Monroe Twp, 50 F.3d 1186, 1190-91 (3d Cir. 1995). Pratt is

portrayed in the complaint as a person with a strong and

well-developed "position" about religious expression in her

school. A poster of Jesus was put up in the hall of her

elementary school by one of the teachers under her

supervision. On a day when this teacher was away, the

poster was taken down because of its religious content by

unidentified school board employees. Then the next day,

the regular teacher, having regained possession of the

poster, put it back on the wall, but in a less noticeable spot

than the one she had initially selected. Under modern

pleading rules, these allegations are surely sufficient to

assert a claim that Pratt knew about and acquiesced in

16

these sensitive events that went on over a period of days in

her own school and that most likely occasioned discussion

and, perhaps, controversy. Pratt's papers in the District

Court and on appeal make it clear that she well understood

the claim that was asserted against her, and for purposes

of her motion for judgment on the pleadings, she did not

dispute her involvement. Thus, the complaint adequately

asserted a claim against her.

B. But even if it did not, why should our court sitting en

banc reach this pleading issue? The defendants did not

move to dismiss the complaint based on a pleading defect.

The District Court did not dismiss the complaint on such a

ground. The defendants did not raise any pleading issue on

appeal. "We do not generally consider issues not raised by

the parties," Bolden v. Southeastern Pennsylvania Transp.

Auth., 953 F.2d 807, 812 (3d Cir. 1991) (en banc), and

there is no good reason for us to raise a pleading issue sua

sponte in this case. The only result of the court's approach

is likely to be delay, expense for the parties, and a waste of

judicial resources.

On remand, the plaintiff will be able to cure the putative

defect in the complaint simply by alleging that Pratt knew

about and acquiesced in the treatment of the poster and by

specifying that this allegation is "likely to have evidentiary

support after a reasonable opportunity for further

investigation or discovery." Fed. R. Civ. Proc. 11(b)(4).

Based solely on the facts already recited in the complaint,

such an allegation would unquestionably be proper.

If the plaintiff amends the complaint by adding such an

allegation, the District Court will have no basis for

dismissing the complaint on a pleading ground, and thus

the District Court will be required once again to decide

whether the complaint states a valid First Amendment

claim. The District Court has already ruled on this

question, and since our Court's disposition of the current

appeal provides no new guidance, the District Court will

presumably adhere to its prior reasoning. The plaintiff will

then be able to appeal, and the precise issue that the full

court now avoids will be back. I see no reason for this

wasteful procedure.

17

The Court justifies its approach as follows. According to

the Court, "[t]his is not a situation in which the complaint

is merely lacking in factual detail." Maj. Op. at 6. "It is a

situation in which the fair inference from the facts alleged

is that the defendants did not play any role in the

challenged decisions and there is no allegation, even

conclusory, to the contrary." Id. Apparently it is the Court's

belief that, on remand, the plaintiff will "very likely" be

unwilling to allege that Pratt knew about and acquiesced in

the treatment of the poster and that the claim regarding the

poster will be dismissed. This is what I understand the

Court to mean when it writes that "it is very likely that the

Court is being asked to resolve an important issue of

constitutional law that is a purely hypothetical one as far

as these parties are concerned." Id. Ifind the Court's

discussion baffling.

As previously noted, if the plaintiff and her attorneys

know no more about the treatment of the poster than is

already alleged in the complaint, they have a more than

adequate basis for adding the allegation needed to satisfy

the Court's concern. The Court seems to think, however,

that Pratt in fact did not know about and acquiesce in the

treatment of the poster, that the plaintiff and/or her

attorneys know this, and that they will accordingly be

unwilling to allege that Pratt was involved.

Nothing in the record supports the Court's apparent

belief, and there is much that points in the other direction.

As noted, Pratt has not claimed that she lacked

responsibility for the treatment of the poster. Moreover,

since the plaintiff 's attorneys are presumably familiar with

the legal standard for holding Pratt responsible, and since

they have vigorously litigated the claim against her in the

District Court and on appeal, they presumably are not

aware of facts showing that Pratt had no involvement in the

incident.

In support of its curious view, the Court cites a footnote

in a brief submitted by the plaintiff to the District Court.

The footnote states in pertinent part:

Although not specifically stated in the pleadings,

Plaintiffs will be prepared to show, if this matter

18

proceeds to trial, that the kindergarten teacher was of

the view that the poster in question was an extremely

appropriate response to the assignment, that in part

because of how well the poster had been done, it was

given a prominent location next to the door of the

kindergarten room, and that the kindergarten teacher

on her own initiative returned the poster to public

display, but that as a compromise to those who were

against any display of the poster, agreed to place it in

a less prominent position.

Plaintiff 's Brief in Opposition to Rule 12(c) Motion at 1 n.2

(emphasis added).

Nothing in this passage suggests that the plaintiff will be

unwilling to allege that Pratt knew about and acquiesced in

the allegedly discriminatory removal and relocation of the

poster. The passage says nothing whatsoever about the

removal of the poster. As for the replacement of the poster

in a less conspicuous spot, while the passage does say that

the new location "was a compromise to those who were

against any display of the poster," the passage does not

reveal who these opponents were. Pratt might have been

one of them. She might have insisted that the poster be re-

hung, if at all, in a less noticeable spot. Or, faced with a

dispute among her teachers, she might have brokered a

compromise to that effect. In either event, if she knew

about and acquiesced in the discriminatory treatment of

the poster because of its religious theme, she could be held

responsible.

If the Court seriously believes that the plaintiff will be

unwilling on remand to make the necessary allegation, the

Court could ask the plaintiff 's attorneys to proffer the

amendment that they would make. The Court, however, has

refused to take that step. The Court simply does not want

to confront Zachary's First Amendment claim. Whatever the

Court thinks about the validity or importance of that claim,

however, it is entitled to be treated in accordance with the

same procedural rules that we apply to the claims of other

litigants.

19

III.

A. I will therefore address the issue that the en banc

court evades: whether Zachary's constitutional right to

freedom of expression was violated if, as the complaint

alleges, his poster was given less favorable treatment than

it would have received had its content been secular rather

than religious.3

I would hold that discriminatory treatment of the poster

because of its "religious theme" would violate the First

Amendment. Specifically, I would hold that public school

_________________________________________________________________

3. The issue here is not, as the District Court thought, whether Zachary

had a "constitutional right to have the poster of Jesus displayed in any

particular location" or to have it "displayed prominently" in the school.

C.H. v. Oliva, 990 F.Supp. at 353, 355. The issue is whether he was

entitled to nondiscriminatory treatment. Nor is the issue, as the panel

suggested, whether the defendants were entitled to remove the poster for

"a brief period of deliberation." C.H. v. Oliva, 195 F.3d at 175. Nowhere

in the complaint -- or for that matter in the answer -- is it alleged that

the poster was removed for this reason.

Nor, at this stage, is the question whether Zachary actually "suffered

any compensable damages." Br. Amicus Curiae of the American Jewish

Congress, Anti-Defamation League and Americans United for Separation

of Church and State ("Amicus Br.") at 2. This case never progressed

beyond the pleading stage. The complaint alleged that Zachary suffered

emotional distress and anguish as a result of the defendants' actions,

Complaint para. 27, and for now, that allegation is enough. Nor is the

issue whether injunctive relief would be appropriate if a constitutional

violation is ultimately found. See Amicus Br. at 4-5. At this stage it is

sufficient that the complaint states a live claim for some form of relief

--

and it clearly does.

Nor is the issue whether Pratt or Johnson is entitled to qualified

immunity. Although this argument was asserted in the Medford

defendants' supplemental appellate brief, it was not raised in the

district

court in their motion for judgment on the pleadings, and it was not

addressed by the district court. Under these circumstances, I would not

reach the issue now. Moreover, even if we were to entertain the qualified

immunity argument at this time, we would still be required, as the first

step of our analysis, to decide whether the complaint stated a First

Amendment claim. Siegert v. Gilley, 500 U.S. 226, 231 (1991); Harlow v.

Fitzgerald, 457 U.S. 800, 102 (1982). And of course the qualified

immunity defense would not apply to the school board in its official

capacity. Owen v. City of Independence, 445 U.S. 622, 639-650 (1980).

20

students have the right to express religious views in class

discussion or in assigned work, provided that their

expression falls within the scope of the discussion or the

assignment and provided that the school's restriction on

expression does not satisfy strict scrutiny. This conclusion

follows from the following two propositions: first, even in a

"closed forum," governmental "viewpoint discrimination"

must satisfy strict scrutiny and, second, disfavoring speech

because of its religious nature is viewpoint discrimination.

B. Public schools are government property, and "the

Government `no less than the private owner of property,

has power to preserve the property under its control for the

use to which it is lawfully dedicated.' " Cornelius v. NAACP

Legal Defense and Education Fund, 473 U.S. 788, 800

((1985) (quoting Greer v. Spock, 424 U.S. 828, 836 (1976)).

The Supreme Court "has adopted a forum analysis as a

means of determining when the Government's interest in

limiting the use of its property to its intended purpose

outweighs the interest of those wishing to use the property

for other purposes." Id. Consequently, government's ability

to regulate speech on its own property often varies

depending on the particular "forum" involved. In a

"nonpublic forum," government may regulate expression

much more extensively than in a "public forum," whether

"traditional" or "dedicated." See, e.g., Perry Education Assn.

v. Perry Local Educators' Assn., 460 U.S. 37, 954 (1983);

Brody v. Sprang, 957 F.2d 1108, 1117 (3d Cir. 1992). Even

in a nonpublic forum, however, where the greatest

restrictions are permissible, "viewpoint discrimination" is

not allowed unless it passes the highest scrutiny. See, e.g.,

Lamb's Chapel v. Center Moriches Union Free School District,

508 U.S. 384, 394-95 (1993); Cornelius, 473 U.S. at 800;

Perry Education Ass'n, 460 U.S. at 46; Widmar v. Vincent,

454 U.S. 263 (1981); Brody, 957 F.2d at 1117.4 As Justice

_________________________________________________________________

4. There is some support in Supreme Court opinions for the proposition

that viewpoint-based restrictions are per se unconstitutional, see, e.g.,

City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984), but

other cases show that strict scrutiny applies. See, e.g., R.A.V. v. City

of

St. Paul, Minnesota, 505 U.S. 377, 392-94 (1992) (applying strict

scrutiny to a regulation banning "fighting words"); Capitol Square Review

& Advisory Bd. v. Pinette, 515 U.S. 753, 760-761 (1995) (plurality)

21

Brennan put it in Perry: "Viewpoint discrimination is

censorship in its purest form and government regulation

that discriminates among viewpoints threatens the

continued vitality of `free speech.' " Perry Education Assn,

460 U.S. at 62 (Brennan, J., dissenting). Indeed, even when

government is regulating a category of speech, such as

"fighting words," that could be entirely prohibited,

government may not discriminate based on viewpoint.

R.A.V. v. City of St. Paul, 505 U.S. 377, 391-96 (1992).

C. The Supreme Court has made it clear that

discrimination based on the religious character of speech is

viewpoint discrimination. In Lamb's Chapel, the Court

struck down a school district policy that permitted school

facilities to be used after school hours by a wide variety of

groups but prohibited the use of those facilities by a group

that wished to show a film series addressing various child-

rearing issues from a "Christian perspective." The Court

held that "it discriminates on the basis of viewpoint to

permit school property to be used for the presentation of all

views about family issues and child rearing except those

dealing with the subject from a religious standpoint." 508

U.S. at 393-94. Likewise, in Rosenberger v. Rector and

Visitors of the University of Virginia, 515 U.S. 819 (1995),

the Court examined university guidelines that refused to

allow a student publication, "Wide Awake," to benefit from

the "Student Activities Fund" because the publication

reflected a religious perspective. It held that such guidelines

violated the First Amendment because they discriminated

against otherwise permissible speech on the basis of

viewpoint. The Court wrote:

It is, in a sense, something of an understatement to

speak of religious thought and discussion as just a

viewpoint, as distinct from a comprehensive body of

thought. The nature of our origins and destiny and

_________________________________________________________________

(applying strict scrutiny to a restriction on religious advocacy); Texas

v.

Johnson, 491 U.S. 397, 412 (1989) (applying strict scrutiny to a law

barring flag desecration); See also Eugene Volokh, Freedom of Speech,

Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev.

2417, 2425 n.44 (1996).

22

their dependence upon the existence of a divine being

have been subjects of philosophic inquiry throughout

human history. We conclude, nonetheless, that here,

as in Lamb's Chapel, viewpoint discrimination is the

proper way to interpret the University's objections to

Wide Awake.

515 U.S. at 831.

Accordingly, viewpoint discrimination is prohibited even

in a nonpublic forum if strict scrutiny cannot be satisfied,

and discrimination based on the religious content of speech

is viewpoint discrimination. It follows that public school

authorities may not discriminate against student speech

based on its religious content if the discrimination cannot

pass strict scrutiny.

D. Recognition of this important principle would not

interfere with the operation of the public schools or impinge

upon the rights of other students. Public school teachers

have the authority to specify the subjects that students

may discuss in class and the subjects of assignments that

students are asked to complete. See, e.g. Cornelius, 473

U.S. at 806 (subject matter may be restricted in nonpublic

forum); Lehman v. City of Shaker Heights, 418 U.S. 298

(1974) (same); Brody, 957 F.2d at 1117 (same). Thus, if a

student is asked to solve a problem in mathematics or to

write an essay on a great American poet, the student clearly

does not have a right to speak or write about the Bible

instead.

Public school teachers may also enforce viewpoint-neutral

rules concerning such matters as the length of an oral

presentation or written assignment. See Brody , 957 F.2d at

1117 (reasonable time, place, and manner restrictions

allowed in nonpublic forum). If a paper is limited to 20

pages, the school obviously may insist that all students,

including any who wish to express a religious viewpoint,

adhere to that rule.

In the public schools, low-value speech, such as vulgar

and offensive language, may be restricted to a greater

extent than would otherwise be permissible. As the Court

observed in Bethel School District No. 403 v. Fraser, 478

U.S. 675, 683 (1986), "[s]urely it is a highly appropriate

23

function of public school education to prohibit the use of

vulgar and offensive terms in public discourse."" `[T]he

First Amendment gives a high school student the classroom

right to wear Tinker's armband, but not Cohen's jacket.' "

Id. at 682 (citation omitted).

Finally, a public school may even restrict speech based

on viewpoint if it can show a compelling interest for doing

so. In Tinker, the Court stated: "Clearly, the prohibition of

expression of one particular opinion, at least without

evidence that it is necessary to avoid material and

substantial interference with schoolwork or discipline, is

not constitutionally permissible." 393 U.S. at 511. Later,

the Court observed that "conduct by the student, in class

or out of it, which for any reason . . . materially disrupts

classwork or involves substantial disorder or invasion of the

rights of others is, of course, not immunized by the

constitutional guarantee of freedom of speech." Id. at 513.

Therefore, if the expression of a particular religious

viewpoint, such as one espousing racial hatred, creates a

sufficient threat, school authorities may intervene.

Taken together, these constitutionally permissible ways of

regulating student speech provide ample means of ensuring

that student expression does not interfere with the effective

operation of the schools or cause harm to other students.

School authorities are not permitted to discriminate against

student expression simply because of its religious

character.

E. When these principles are applied to the present case,

it is clear that the judgment of the District Court must be

reversed. Taking down Zachary's Thanksgiving poster and

replacing it in a less conspicuous location because of its

religious content was plainly viewpoint, not subject matter,

discrimination. The subject matter of the poster was

specified by Zachary's teacher: something for which he was

thankful as the Thanksgiving holiday approached. His

poster fell within the specified subject matter, and it is not

alleged that the poster was subjected to discriminatory

treatment because of that subject. Rather, the poster was

allegedly given discriminatory treatment because of the

viewpoint that it expressed, because it expressed thanks for

Jesus, rather than for some secular thing. This was

24

quintessential viewpoint discrimination, and it was

proscribed by the First Amendment unless the Medford

defendants can show that allowing Zachary's poster to be

displayed with his classmates' on a non-discriminatory

basis would have "materially disrupt[ed] classwork or

involve[d] substantial disorder or invasion of the rights of

other[ ] [students]." Tinker , 393 U.S. at 513.

No such showing is evident from the pleadings, and

nothing asserted in the Medford defendants' briefs suggests

that they could make such a showing on remand. The

Medford defendants contend that the treatment of

Zachary's poster furthered the compelling interest of

avoiding an Establishment Clause violation. See Medford

Defendants' Supplemental Br. at 27-31. It is clear, however,

that displaying Zachary's poster would not have violated

the Establishment Clause. The Establishment Clause is not

violated when the government treats religious speech and

other speech equally and a reasonable observer would not

view the government practice as endorsing religion. Capitol

Square, 515 U.S. at 763-70 (1995)(plurality); id. at 777

(O'Connor, J., concurring in part and concurring in the

judgment). See also Santa Fe Independent School District v.

Doe, 120 S. Ct. 226, 2278 (2000).

Here, a reasonable observer would not have viewed the

exhibition of Zachary's Thanksgiving poster along with the

secular posters of his classmates as an effort by the school

to endorse religion in general or Christianity in particular.

An art display that includes works of religious art is not

generally interpreted as an expression of religious belief by

the entity responsible for the display. Even the amici

supporting the defendants acknowledge that "[d]isplay of

student artwork with religious themes is understood to be

the personal expression of the student and not that of the

school." Brief Amicus Curiae of the American Jewish

Congress, Anti-Defamation League and Americans United

for Separation of Church and State at 1. Furthermore, if

there had been any danger that anyone might have

reasonably interpreted the display of Zachary's poster in

the hall as an effort by the school to endorse Christianity or

religion, the school could have posted a sign explaining that

the children themselves had decided what to draw. See

25

Capitol Square Review, 515 U.S. at 793-94 (Souter, J.,

concurring in the judgment).

For these reasons, I see no indication in the briefs that

the Medford defendants had a compelling reason for

treating Zachary's Poster in the manner alleged. Zachary's

teacher in effect asked him a question: What are you

thankful for as Thanksgiving approaches? Zachary was

entitled to give what he thought was the best answer. He

was entitled to be free from pressure to give an answer

thought by the Medford educators to be suitable for a boy

who is "public school material." Complaint para. 21.

F. In affirming the judgment of the district court, the

panel took the position that a public school is free to

practice viewpoint discrimination in regulating student

speech in class and in assignments, provided only that the

discrimination is "reasonably related to a legitimate

pedagogical concern." 195 F.3d at 170-72. Moreover, the

panel held that avoiding the possibility of "resentment" by

parents is a legitimate pedagogical concern. Id . at 175.

According to the panel, then, if public school authorities

could reasonably think that a student's expression of a

particular viewpoint in a class discussion or assignment

could cause "resentment" on the part of other students or

parents, the school may censor the student's speech.

The panel's view is radically at odds with fundamental

First Amendment principles. As previously discussed,

viewpoint discrimination strikes at the heart of the freedom

of expression. And in order to restrict core First

Amendment speech, much more is needed than the

possibility that the speech may cause resentment. See

Texas v. Johnson, 491 U.S. at 407-10. This principle

applies to speech in public schools. As the Supreme Court

wrote in Tinker, "[a]ny word spoken in class . . . that

deviates from the views of another person may start an

argument or cause a disturbance. But our Constitution

says that we must take this risk." Tinker, 393 U.S. at 737.

Thus, "[i]n order for the State in the person of school

officials to justify prohibition of a particular expression of

opinion, it must be able to show that its action was caused

by something more than a mere desire to avoid the

26

discomfort and unpleasantness that always accompany an

unpopular viewpoint." Id at 738.

The panel's understanding of the First Amendment

principles applicable in this case was based on one case --

Hazelwood School District v. Kuhlmeir, 484 U.S. 260 (1988).

See 195 F.3d at 171-74. The panel viewed Hazelwood as

providing the governing standard for "student expression

that is part of a school curriculum," see 195 F.3d at 171,

including things that students say (or express by other

means, such as artwork) when they are called upon by

their teachers to express their own thoughts or views. This

is an incorrect interpretation of Hazelwood. Hazelwood

involved a high school principal's censorship of articles in

the school newspaper. The Court described the issue before

it as concerning "educators' authority over school-

sponsored publications, theatrical productions, and other

expressive activities that students, parents, and members

of the public might reasonably perceive to bear the

imprimatur of the school." 484 U.S. at 271. The Court held

that educators may regulate such activities "so long as their

actions are reasonably related to legitimate pedagogical

concerns." Id. at 273. While Hazelwood certainly applies to

many things that occur in the classroom -- such as work

on the school newspaper at issue in that case (see 484 U.S.

at 268) -- nothing in Hazelwood suggests that its standard

applies when a student is called upon to express his or her

personal views in class or in an assignment.

On the contrary, Hazelwood governs only those

expressive activities that might reasonably be perceived "to

bear the imprimatur of the school." 484 U.S. at 271. This

understanding of Hazlewood is fortified by Rosenberger,

where the Court wrote:

A holding that the University may not discriminate

based on the viewpoint of private persons whose

speech it facilitates does not restrict the University's

own speech, which is controlled by different principles.

See e.g., . . . Hazelwood School Dist. V. Kuhlmeier, 484

U.S. 260, 270-272.

515 U.S. at 834 (emphasis added).

27

Things that students express in class or in assignments

when called upon to express their own views do not"bear

the imprimatur of the school" Hazlewood, 484 U.S. at 271,

and do not represent "the [school's] own speech."

Rosenberger, 515 U.S. at 834. "The proposition that schools

do not endorse everything that they fail to censor is not

complicated." Westside Community Bd. v. Mergens, 496

U.S. 226, 250 (1990)(opinion of O'Connor, J.).

In the present case, for reasons already discussed,

reasonable students, parents, and members of the public

would not have perceived Zachary's poster as bearing the

imprimatur of the school or as an expression of the school's

own viewpoint. Thus, it is abundantly clear that Hazelwood

has no application here.

If the panel's understanding of Hazelwood were correct,

it would lead to disturbing results. Public school students

-- including high school students, since Hazelwood was a

high school case -- when called upon in class to express

their views on important subjects, could be prevented from

expressing any views that school officials could reasonably

believe would cause "resentment" by other students or their

parents. If this represented a correct interpretation of the

First Amendment, the school officials in Tinker could have

permitted students, as part of a class discussion, to express

views in favor of, but not against, the war in Vietnam

because some students plainly resented the expression of

antiwar views. See 393 U.S. at 509 n.3. Today, school

officials could permit students to express views on only one

side of other currently controversial issues if the banned

expression would cause resentment by some in the school,

as it very likely would. Such a regime is antithetical to the

First Amendment and the form of self-government that it

was intended to foster.

IV.

In sum, I would hold that the District Court erred in

granting judgment for the defendants. I would reverse and

remand for a determination whether the Medford

defendants did in fact treat Zachary's poster in a

discriminatory fashion because of its religious content. And

28

if discriminatory treatment is shown, I would give the

Medford defendants the opportunity to show that their

actions were supported by a compelling reason and were

narrowly tailored to serve that end.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

29