Oliver v. Arnold

Case: 20-20215 Document: 00515919207 Page: 1 Date Filed: 06/29/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

June 29, 2021

No. 20-20215

Lyle W. Cayce

Clerk

Mari Leigh Oliver,

Plaintiff—Appellee,

versus

Benjie Arnold,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:17-CV-3234

Before Wiener, Dennis, and Duncan, Circuit Judges.

James L. Dennis, Circuit Judge:

Mari Leigh Oliver brought suit against Benjie Arnold, her former

Sociology teacher at a public high school in Texas, alleging that he violated

her First Amendment rights by attempting to compel her to transcribe the

United States Pledge of Allegiance and by retaliating against her after she

refused. Arnold moved for summary judgment on the ground that qualified

immunity protected him from liability. The district court denied the motion,

finding that genuine factual disputes regarding Arnold’s conduct and

intentions precluded a finding that he did not violate any of Oliver’s clearly

established rights. Arnold filed this interlocutory appeal, and Oliver filed a

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motion to dismiss the appeal for lack of jurisdiction. Because Arnold seeks

to have this court resolve the very factual disputes that the district court

found to be genuine and properly submitted for trial on the merits, which we

do not have jurisdiction to do, we grant Oliver’s motion and DISMISS the

appeal.

I. FACTS AND PROCEDURAL HISTORY

A. Background

As discussed in more detail below, we lack jurisdiction in an appeal of

a denial of qualified immunity at the summary judgment stage to reexamine

the evidence in the record to determine whether the factual disputes

identified by the district court are genuine. See Colston v. Barnhart, 146 F.3d

282, 284 (5th Cir. 1998) (examining Johnson v. Jones, 515 U.S. 304 (1995),

and Behrens v. Pelletier, 516 U.S. 299 (1996), in explaining that we lack

jurisdiction in this context to consider whether “evidence could support a

finding that particular conduct occurred” (quoting Behrens, 516 U.S. at 313)).

Instead, we must look only to the district court’s ruling, accepting as true the

version of the purportedly disputed facts that is most favorable to the claims

asserted by the plaintiff. See id. We therefore assume the following facts to

be true while expressing no opinion as to whether they are fully supported by

the evidence in the record, and we note that a wholly different version of

events may ultimately be proven at trial.

Under Texas state law, public school districts must require students

to recite the United States Pledge of Allegiance (the “Pledge”) every school

day. See TEX. EDUC. CODE § 25.082(b). However, the law requires schools

to excuse any student from this obligation “[o]n written request from a

student’s parent or guardian.” Id. at § 25.082(c). Klein Independent School

District (“KISD”)’s pledge policy tracks the Texas statute, and, absent a

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written excuse from a parent or guardian, students are required to recite the

Pledge each day.

Oliver is a young black woman who was enrolled as a student at Klein

Oak High School (“Klein Oak”) within KISD during the events that gave

rise to this case. Oliver objects to the Pledge because she feels that the

portion declaring America to be a nation “under God” fails to recognize

many religions and does not match her personal religious beliefs. She further

believes that, contrary to the words of the Pledge, there is not “freedom and

justice for all” in America because she and other black people continue to

experience widespread racial persecution. Oliver therefore declines to stand

for or recite the Pledge.

During her time at Klein Oak, Oliver’s refusal to participate in the

Pledge led to a number of confrontations with KISD employees and her

fellow students. On November 30, 2015, following one such conflict between

Oliver and her Journalism teacher, Oliver’s mother LaShan Arceneaux sent

an email to the Klein Oak principal and guidance counselor that objected to

the teacher “giving [Oliver] a hard time” for abstaining from the Pledge and

asked that Oliver be transferred to a different class. The problems persisted,

and approximately a year later, on November 14, 2016, Arceneaux sent a

second email, this time to the Klein Oak principal and the KISD

superintendent. The second email faulted the school for failing to stop the

“harass[ment] of students who choose not to say the pledge.” It further

asserted that Oliver’s “desire not to say the pledge is not an opinion, it is a

constitutional right.”

The following year, Oliver took Arnold’s Sociology class. On August

18, 2017, the Klein Oak principal held a meeting with Oliver’s teachers,

including Arnold, and instructed them that Oliver was not required to

participate in the Pledge. Nonetheless, on September 20, 2017, Arnold gave

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the class an assignment to transcribe the words of the Pledge of Allegiance

(“the Pledge assignment”). Although Arnold claims that the assignment had

a pedagogical purpose, the district court found that his intentions were

genuinely disputed, and we therefore must assume for purposes of this appeal

that Arnold’s justification was pretextual and Arnold intended the

assignment as a mandatory statement of patriotic belief from his students.

Oliver refused to complete the assignment and instead drew a “squiggly

line.”

During class the next day, Arnold told his students that anyone who

did not complete the Pledge assignment would receive a grade of zero. 1

Arnold then engaged in an extended diatribe, which we must assume was

aimed at Oliver and motivated by his hostility toward her refusal to transcribe

the Pledge, in which he lamented what he viewed as the decline of American

values and decried a variety of people whose attitudes he deemed to be un-

American, including communists, supporters of Sharia law, foreigners who

refuse to assimilate into American culture, and sex offenders and those that

argue for their rehabilitation. 2

Your assignment yesterday was to write the Pledge. If you have

a math class and that teacher gives you 10 problems to do, and

you say you don’t wanna do ‘em, tell me what your grade is[.]

It’s a zero. And you have the option to do that, but what you’ve

done is leave me no option but to give you a zero. And you can

1

The district court twice stated that “[t]he parties dispute whether Arnold actually

gave Oliver a zero” for failing to complete the Pledge assignment. The court then found

that “a reasonable jury could conclude that Arnold . . . threatened to give a zero to anyone

who refused to write the pledge (whether he acted on the threat or not).” From this

language, it does not appear that the district court made any finding regarding whether

Arnold actually gave Oliver a zero.

2

Oliver made a surreptitious recording of Arnold’s speech, and it is transcribed

verbatim in the district court’s memorandum opinion.

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have all the beliefs, and resentment, and animosity that you

want. But I made it clear yesterday: Writing it is not something

you pledge. But again, but I know the sticker’s gone—I used

to have it, and it said “America, love it, or leave it.” And if you

can tell me two countries you’d rather go to[,] I will pay your

way there if they’re communist or socialist. Most of Europe is

socialist and it’s crumbling. Or it’s communism. But if you

ever come back you have to pay me twice what it cost me to

send you there. You know there’s a lot of things I complain

about. So when it comes time in November I go vote, or I

protest in writing, in legal. Those are the ways we do it in

America. Where a country will crumble is when people coming

into a country do not assimilate to that country. That doesn’t

mean you forget Day of the Dead, and whatever cultures[,] you

maintain your language. That doesn’t mean that. But you’re

not gonna drive on the left side of the road, and you’re not

gonna impose Sharia law. Because it’s not. [T]his. [C]ountry.

But what is happening, and I can say it a lot more than you

because I’ve lived longer. It’s almost as America’s assimilating

to THOSE countries.

Arnold’s speech continued, discussing the Cuban Missile Crisis and the

Pope’s opposition to the construction of a wall at the United States’ southern

border before digressing into a discussion of a local sex offender in the news.

Okay, so keep you[r] house when the guy next to you has to put

a sign out saying that he’s a sex offender. And welcome him to

the neighborhood. That’s fine. And maybe that person needs

that kind of welcome. And if you didn’t hear in Houston, there

was a—he was a Mariachi teacher. And the Principal[] also got

removed. She hired him, but she was paying him out of a

different account. Il[l]egal. The guy had about five counts of

molestation, lewd exposure to young people, and there he was

working in the school system. So you can say “Well, he needs

a second chance[.”] Tell that to the people that he abused.

Tell that to those kids.

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In the days that followed, Arnold continued to exhibit hostility toward

Oliver and treat her more harshly than other students as a result of her refusal

to transcribe the Pledge, including by repeatedly moving her seat,

intentionally calling her by the wrong name, and making disparaging

comments about her accomplishments in extracurricular activities. Although

Arnold denies treating Oliver differently than other students and maintains

that he enforced his classroom rules evenly, the district court again found

that these facts are genuinely disputed, and we thus must assume that Arnold

singled Oliver out for hostile mistreatment as a result of her opposition to the

Pledge assignment.

In response to Oliver’s complaints, the Klein Oak assistant principal

and associate principal held another meeting with Arnold in which they

reminded him of the August 2017 meeting in which he was informed of

Oliver’s right to abstain from the Pledge. The principals instructed Arnold

to maintain neutrality in class discussions and to be sensitive to students’

rights regarding the Pledge, and they told him to refrain from interacting with

Oliver except as necessary. Arnold agreed to follow these instructions.

This agreement notwithstanding, hostilities between Arnold and

Oliver continued to increase when, the following month, Arnold learned that

Oliver had filed the initial complaint in the present lawsuit and named him

among the defendants. Arnold authored a document in response entitled

“The Truth Lies Herein,” in which he set forth a renunciation of what he

termed the “malicious accusations” and “trail of deception and blatant

falsehoods” in Oliver’s complaint.

Then, on November 1, 2017, Arnold played Christian music in class

at the beginning of a unit on suicide and stared at Oliver continuously as the

song played. Again, Arnold argues that there was a pedagogical purpose for

the music and that he has played it and other music for all of his classes. But

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again, the district court found that these facts are genuinely disputed, and we

must assume that Arnold played the music as an expression of hostility

toward Oliver. Oliver’s counsel objected to the Christian music, and the

assistant and associate principals met with Arnold a third time, this time

reprimanding him for failing to follow the instructions he had agreed to and

for violating state and local rules and ethical standards regarding religious

neutrality.

B. District Court Proceedings

Oliver filed her last amended complaint on December 11, 2019, adding

those allegations recounted above that postdated her original complaint.

Pursuant to 42 U.S.C. § 1983, Oliver asserted claims that Arnold had violated

her First Amendment rights by attempting to compel her to transcribe the

Pledge and by retaliating against her for her refusal to do so, including by

giving her a zero on the assignment and giving a speech to the class that

compared people who declined to say the Pledge to communists, supporters

of Sharia law, and defenders of pedophilia. 3 Arnold filed a motion for

summary judgment arguing that, as a government actor, he was entitled to

qualified immunity.

On March 25, 2020, the district court entered a memorandum opinion

denying Arnold’s motion. 4 The court first noted that Oliver was not

3

Oliver also asserted claims against a number of other KISD employees and the

school district itself. The district court granted summary judgment to the other defendants

on various grounds, and Oliver’s separate appeal of these rulings is also currently pending

before this court. See Oliver v. Champion, No. 20-20438 (5th Cir. 2020).

4

Oliver had filed her own motion for summary judgment on her claims against

Arnold, asking that the district court rule there was no genuine dispute that Arnold had

violated her First Amendment rights and that he was not entitled to qualified immunity. In

its memorandum opinion, the court also denied Oliver’s motion. The court stated that

whether Oliver was entitled to summary judgment was “a closer question” than with

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challenging the facial constitutionality of TEXAS EDUCATION CODE

§ 25.082, and the district court therefore presumed the statute was

constitutional and that it would not violate Oliver’s First Amendment rights

to require her to participate in the Pledge if her parent or guardian had not

made a written request that she be exempted. The court then examined

Arceneaux’s two emails to school officials to determine whether they

constituted effective requests to excuse Oliver from participating in the

Pledge pursuant to TEXAS EDUCATION CODE § 25.082(c).

The court found that Arceneux’s first, November 2015 email asking

that Oliver be moved out of her Journalism class was not an effective written

request because the email ultimately “propose[d] a course of action that did

not specifically request exempting Oliver from participating in the pledge.”

However, the court determined that Arceneaux’s second, November 2016

email was “clearly an effective exemption request” because it “effectively

communicated to [school officials] that she, as Oliver’s mother, wanted them

to protect Oliver’s constitutional right to abstain from the pledge.” The

court thus appeared to conclude that Arnold could not rely on TEXAS

EDUCATION CODE § 25.082(c) as a defense because his alleged conduct

occurred after Arceneaux’s second email.

As to the merits of Oliver’s claims against Arnold, the district court

determined that, “the Supreme Court made it clear in 1943, in West Virginia

State Board of Education v. Barnette, 319 U.S. 624 (1943), the First

Amendment forbids compelling saluting or pledging allegiance to the flag.”

This precedent means, the district court explained, that for purposes of

qualified immunity, “[a] public school student’s First Amendment right to

respect to Arnold but concluded that “the full record at trial will provide a more secure

basis for an accurate ruling.” The district court’s denial of Oliver’s motion is not at issue

in this appeal.

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abstain from the Pledge of Allegiance is well, long, and clearly established.”

Similarly well established is the principle that “[a] school official engages in

unconstitutional retaliation when, substantially motivated by a student’s

protected speech, the official takes actions causing an injury that would ‘chill

a person of ordinary firmness from continuing’ the protected activity,” the

court continued, quoting Brinsdon v. McAllen Independent School District, 863

F.3d 338, 351 (5th Cir. 2017).

The district court then found that genuine disputes of fact existed

regarding whether Arnold assigned transcription of the Pledge with the

impermissible motive of requiring a statement of patriotism from his

students, and the court therefore concluded that Arnold was not entitled to

summary judgment on Oliver’s compelled speech claim. The court further

determined that “a reasonable jury could conclude that Arnold exhibited

hostility toward, and retaliated against, Oliver for refusing to write the

pledge, and that he threatened to give a zero to anyone who refused to write

the pledge (whether he acted on the threat or not).” “A jury could also

reasonably find that Arnold’s speech to the class and threat to punish refusal

to write the pledge with a zero would chill a person of ordinary firmness from

exercising protected speech,” the district court concluded, which precluded

a grant of summary judgment on Arnold’s claim for First Amendment

retaliation. Arnold timely appealed.

II. ANALYSIS

Government officials who are sued for money damages under § 1983

are entitled to qualified immunity from liability unless their actions violated

a federal statutory or constitutional right and that right was clearly

established at the time of their conduct. Brinsdon, 863 F.3d at 347. “Another

articulation particularly for the school setting is that educators are entitled to

qualified immunity unless no ‘reasonable official’ would have deemed the

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disputed conduct constitutional.” Id. (citing Morgan v. Swanson, 659 F.3d

359, 371 (5th Cir. 2011) (en banc)).

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). And while student’s First Amendment

rights “are not automatically coextensive with the rights of adults in other

settings,” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986),

“[s]chool officials may only restrict . . . private, personal expression to the

extent it would ‘materially and substantially interfere with the requirements

of appropriate discipline in the operation of the school,’ or ‘impinge upon

the rights of other students.’” Swanson, 659 F.3d at 375 (quoting Tinker, 393

U.S. at 509).

Thus, as the district court noted, the Supreme Court has held since

the landmark 1943 decision in West Virginia State Board of Education v.

Barnette that the First Amendment prohibits compelling students to salute or

pledge allegiance to the American flag. “[T]he Barnette right to abstain from

the pledge” is well established enough that our court has previously

described a case in which it was violated as a “rare exception” to the trend

“that educators are rarely denied immunity from liability arising out of First–

Amendment disputes.” Morgan v. Swanson (“Swanson II”), 755 F.3d 757,

760 (5th Cir. 2014) (citing Holloman ex rel. Holloman v. Harland, 370 F.3d

1252 (11th Cir.2004)). It is also well established that a government official

violates the First Amendment by retaliating against a person for exercising

First Amendment rights—that is, by taking “adverse actions” that are

“substantially motivated against the plaintiffs’ exercise of constitutionally

protected conduct” that cause the plaintiff “an injury that would chill a

person of ordinary firmness from continuing to engage in that [protected]

activity.” Brinsdon, 863 F.3d at 351 (quoting Keenan v. Tejeda, 290 F.3d 252,

258 (5th Cir. 2002)).

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This court generally reviews a district court’s ruling on a motion for

summary judgment de novo, applying the same standard as the district court.

Mack v. City of Abilene, 461 F.3d 547, 555 (5th Cir. 2006). However, an

exception to this general rule applies when a defendant appeals a denial of

qualified immunity at the summary judgment stage. See Colston, 146 F.3d at

284. Although our review is still de novo, we are limited in what aspects of

the district court’s ruling we are permitted to review. Id.

A district court’s finding that the evidence is sufficient to create

genuine factual disputes is a preliminary ruling because the factual issues will

ultimately be resolved at trial, and it therefore is not a final order over which

28 U.S.C. § 1291 grants us appellate jurisdiction. See id.; Acoustic Sys., Inc. v.

Wenger Corp., 207 F.3d 287, 290 (5th Cir. 2000). Nevertheless, qualified

immunity is not “a mere defense to liability,” but rather “an immunity from

suit,” and it would be effectively lost if a defendant were forced to defend at

trial against allegations that would not overcome qualified immunity even if

proven. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original).

A district court’s decision that a given set of facts will overcome a

defendant’s qualified immunity if proven is therefore immediately appealable

under the collateral order doctrine. Id. at 527 (citing Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 545 (1949)).

The interaction of these two jurisdictional principles means that,

when considering an appeal of a district court’s denial of a defendant’s

summary judgment motion that asserts qualified immunity, we must accept

that the evidence gives rise to the factual disputes identified by the district

court, and we may only review whether the version of those facts that is most

favorable to the plaintiff’s claim is sufficient to overcome qualified immunity.

See Colston, 146 F.3d at 284; Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015)

(“[W]e cannot challenge the district court’s assessments regarding the

sufficiency of the evidence—that is, the question whether there is enough

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evidence in the record for a jury to conclude that certain facts are true.”

(quoting Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc))). Put

another way, “[i]n deciding an interlocutory appeal of a denial of qualified

immunity, we can review the materiality of any factual disputes, but not their

genuineness.” Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000).

While this appeal was pending before our court, Oliver filed a motion

to dismiss the appeal and for attorneys’ fees, arguing that Arnold’s appeal

was frivolous because the district court’s ruling centered on factual disputes

and this court lacks jurisdiction over interlocutory challenges to such

determinations. Oliver is correct that the limits on our jurisdiction foreclose

Arnold’s arguments.

Foremost among Arnold’s contentions on appeal are that the Pledge

assignment had a legitimate instructional purpose and he did not intend it to

instill or require patriotic belief, nor did he harass Oliver or treat her more

harshly than her classmates because she refused to complete the assignment.

However, what Arnold’s motivations were, whether he engaged in the

actions toward Oliver that she alleges, and how he treated other similarly

situated students are all quintessential questions of fact. See, e.g., Int’l

Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1265 (5th Cir. 1991) (“[A]

party’s state of mind is inherently a question of fact which turns on

credibility. Credibility determinations, of course, are within the province of

the fact-finder.”); Kinney, 367 F.3d at 346 (“[T]he court decides that a

genuine issue of fact exists regarding whether the defendant(s) did, in fact,

engage in such conduct.”).

Arnold also repeatedly argues that Arceneaux did not submit a request

that Oliver be excused from participating in the Pledge. To be sure, whether

the text of the emails that the district court found Arceneaux sent constituted

an effective exemption request under TEXAS EDUCATION CODE

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§ 25.082(c) is a question of statutory construction, which is a purely legal

matter that would fall within our limited appellate jurisdiction. See Kemp v.

G.D. Searle & Co., 103 F.3d 405, 407 (5th Cir. 1997) (“Questions of statutory

interpretation are questions of law and thus reviewed de novo.” (citing Estate

of Bonner v. United States, 84 F.3d 196, 197 (5th Cir.1996))). But Arnold

raises no arguments as to why Arceneaux’s emails did not satisfy the statute,

and arguments that are not raised on appeal are waived. Hidden Oaks Ltd. v.

City of Austin, 138 F.3d 1036, 1045 n.7 (5th Cir. 1998).

Instead, Oliver contends that Arceneaux stated in a deposition that

she never submitted an exemption request in writing because she thought the

school knew that she approved of Oliver abstaining from the Pledge and

because no school official had asked her for a written statement. But, as the

district court concluded, “Arceneaux[’s] . . . subsequent testimony does not

negate the November 2016 email’s legal effect under the Texas pledge

statute.” At best, the testimony creates a factual dispute over whether

Arceneaux in fact sent the email in question, and, again, we lack jurisdiction

to review the district court’s factual determinations. 5 See Trent, 776 F.3d at

376.

5

Arnold invokes our court’s rule that we do “not allow a party to defeat a motion

for summary judgment using an affidavit that impeaches without explanation sworn

testimony.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996). The copies

of the emails Oliver submitted into evidence are neither affidavits nor impeachment

evidence, but rather documentary evidence that bears directly on the question of whether

Arceneaux submitted a written § 25.082(c) request. More fundamentally, however,

whether we allow testimony to be impeached bears only on whether that testimony is true

or not, which is a factual issue over which we lack jurisdiction. See Int’l Shortstop, Inc., 939

F.2d at 1265 (“Credibility determinations, of course, are within the province of the fact-

finder.”). The district court found that Arceneaux sent the emails in question, and we must

accept this determination. See Colston, 146 F.3d at 284. And because Arnold does not raise

any cognizable challenge to the district court’s ruling that Arceneaux submitted a valid

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Arnold’s legal arguments are inextricably intertwined with his

challenges to the facts that the district court found to be disputed, over which

we lack jurisdiction. He contends that Oliver’s compelled speech claim fails

because Arceneaux did not submit a § 25.082(c) request and Oliver was thus

required by state law to participate in the Pledge; because the Pledge

assignment was given for pedagogical purposes, and, under Brinsdon v.

McAllen Independent School District, 863 F.3d 338 (5th Cir. 2017), it does not

violate clearly established law to require a student to participate in the Pledge

for didactic reasons; and, relatedly, because a refusal to complete a class

assignment given for pedagogical reasons is not expressive conduct protected

by the First Amendment. But, as we have stated, the district court found

these facts to be genuinely disputed, and we must assume due to the posture

of this appeal that Arceneaux did submit a valid § 25.082(c) request and that

Arnold gave the Pledge assignment “for the purposes of teaching, fostering[,]

and perpetuating the ideals, principles[,] and spirit of Americanism,”—the

intent the Supreme Court found impermissible in Barnette. 319 U.S. at 625.

Similarly, Arnold argues that Oliver does not have a valid claim for

retaliation because her refusal to complete the Pledge assignment was not

constitutionally protected activity, because “the evidence” shows he did not

harass her or treat her differently than other students, and because any

adverse actions he took were not motivated by Oliver’s refusal to complete

the Pledge assignment. But, again, because the district court found these

facts to be genuinely disputed, we must assume for purposes of this appeal

that Arnold gave the Pledge assignment for impermissible purposes,

rendering Oliver’s refusal protected activity; that Arnold singled Oliver out

and treated her differently than other students; and that these adverse actions

§ 25.082(c) request, we need not and do not consider how our analysis would differ had no

request been submitted.

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were motivated by hostility to Oliver’s refusal to complete the Pledge

assignment. See Colston, 146 F.3d at 284. We do not have jurisdiction to

reexamine “the evidence” as Arnold urges. And Arnold raises no argument

as to why, if he did engage in the actions toward Oliver that she alleges and

he was substantially motivated by opposition to Oliver’s refusal to complete

the Pledge assignment, they nonetheless failed to cause Oliver “an injury that

would chill a person of ordinary firmness from continuing to engage in that

[protected] activity” Brinsdon, 863 F.3d at 351 (quoting Keenan, 290 F.3d at

258). And, again, arguments that are not raised on appeal are waived. Hidden

Oaks, 138 F.3d at 1045 n.7.

Our dissenting colleague argues that Arnold simply gave an

unconventional teaching assignment that no clearly established law prohibits.

Dissent at 3. He further posits that, in holding that Arnold’s conduct, if

proven, would violate clearly established rights, we open the door for

students to sue over any classwork they deem offensive. Dissent at 3-5. But

the dissent fails to heed the limits on our jurisdiction in this context and to

consider the facts in the light most favorable to Oliver. In this appeal, the

“impure motive” we must assume Arnold had for giving the Pledge

assignment is not simply “foster[ing] respect for the Pledge” as the dissent

contends. Dissent at 3. Instead, because the district court found that

Arnold’s motives are genuinely disputed, we must presume here that Arnold

was requiring his students to make precisely the sort of written oath of

allegiance that the dissent acknowledges would be impermissible. Dissent at

3. We are not permitted to look beyond the district court’s findings of

disputed facts to conclude that, based on the evidence in the record, Arnold

was instead merely employing a “curious teaching method.” Dissent at 2.

The dissent also places much weight on the fact that what is at issue

here is a “written assignment.” Dissent at 1, 3. But the Court in Barnette

stated, “If there is any fixed star in our constitutional constellation, it is that

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no official, high or petty, can prescribe what shall be orthodox in politics,

nationalism, religion, or other matters of opinion or force citizens to confess

by word or act their faith therein.” 319 U.S. at 642 (emphasis added). It is

immaterial that, under the facts we must accept here, the required pledge was

a written oath rather than an oral one and that the consequence for non-

compliance was an academic penalty rather than an overt disciplinary action.

Barnette clearly states that teachers and other school officials may not require

students to swear allegiance, and with the case in this posture, we must

assume that this is what Arnold did. Thus, there is no danger that our

decision will pave the way for students to file lawsuits over their being

required to study Dr. Suess or any of the other figures featured in the

scenarios the dissent imagines. Dissent at 4-5. Unless a teacher is requiring

students to swear their fealty and devotion to Dr. Suess and his teachings, the

assignments the dissent envisions are clearly not implicated by the present

case.

What remains is Oliver’s motion for attorneys’ fees for this appeal.

We, of course, follow the “American Rule” under which “[e]ach litigant

pays his own attorney’s fees, win or lose, unless a statute or contract provides

otherwise.” Peter v. Nantkwest, Inc., 140 S. Ct. 365, 370 (2019) (quoting

Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 252–253 (2010)).

Oliver’s motion itself identified no source of authority that would permit us

to award attorneys’ fees, though in the conclusion of her response brief she

requests attorneys’ fees “pursuant to 42 U.S.C. Section 1983.” Although

§ 1983 itself does not authorize an award of attorneys’ fees, 42 U.S.C. § 1988

provides that “[i]n any action or proceeding to enforce a provision of

section[] . . . 1983 . . .of this title. . . the court, in its discretion, may allow the

prevailing party . . . a reasonable attorney’s fee as part of the costs.” But

Oliver makes no separate argument as to why an award of attorneys’ fees is

appropriate in this case, and “[t]he question of which party is entitled to fees

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under Section 1988 ‘require[s] an inquiry separate from the decision on the

merits.’” Zimmerman v. City of Austin, 969 F.3d 564, 568 (5th Cir. 2020)

(quoting White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 451 & n.13 (1982))

(second alteration in the original). In the absence of any specific argument

regarding attorneys’ fees, we decline to exercise our discretion to award

them.

III. CONCLUSION

Based on the foregoing, Oliver’s motion for attorneys’ fees is

DENIED. Oliver’s motion to dismiss the appeal for lack of jurisdiction is

GRANTED, and the appeal is DISMISSED.

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Stuart Kyle Duncan, Circuit Judge, dissenting:

I respectfully dissent.

The law forbids a public school teacher from compelling students to

recite the Pledge of Allegiance. W. Va. State Bd. of Educ. v. Barnette, 319 U.S.

624, 627, 642 (1943). But nothing like that is going on here. As part of an in-

class exercise, a sociology teacher asked students to see if they could write

the Pledge’s words from memory. This assignment followed one where

students would ponder the lyrics to Bruce Springsteen’s “Born in the

U.S.A.” No case says this teaching method—unorthodox though it may be—

violates the First Amendment. That is true whatever the teacher’s motives

for giving the assignment. So, we should dismiss this case based on qualified

immunity now. The majority’s contrary approach, which sends the case to

trial, would make countless classroom assignments fodder for federal

lawsuits whenever a student claims offense. Indeed, so far as I can tell, this is

the first decision by any federal circuit permitting a student to challenge a

written assignment as “compelled speech” under the First Amendment. We

should not go down that road.

The genesis of Oliver’s First Amendment claims was an assignment,

repeated yearly, where Arnold would ask his sociology students to see if they

could “transcribe the words of the Pledge of Allegiance” within a set time

period. Ante at 4. The exercise was paired with another where the students

would listen to, and then discuss, “Born in the U.S.A.” The majority

concludes the Pledge assignment implicates Barnette, which famously held

that “the First Amendment prohibits compelling students to salute or pledge

allegiance to the American flag.” Ante at 10. The majority further holds that

material fact disputes prevent our resolving Arnold’s qualified immunity

claim on interlocutory appeal—specifically, disputes over whether Arnold

gave the assignment “for pedagogical purposes” or instead for the

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“impermissible motive of requiring a statement of patriotism from his

students.” Ante at 14, 9. I disagree on both points.

Qualified immunity yields only where an official violates “clearly

established law,” meaning binding authority “that defines the contours of

the right in question with a high degree of particularity.” Morgan v. Swanson,

659 F.3d 359, 371–72 (5th Cir. 2011) (en banc). But Barnette does not provide

the “particularity” to settle Oliver’s First Amendment claims. In Barnette,

the Pledge figured in a distinct context: students were made to join in a

“ceremony” where they stood and “salut[ed]” the American flag while

reciting the Pledge. Barnette, 319 U.S. at 626–30 & n.2. By contrast, the

Pledge assignment here involves nothing like Barnette’s coerced ceremonial

recitation. Rather, the undisputed record shows students would

“transcribe” the Pledge’s words as part of a timed in-class exercise.

This is a curious teaching method, but no case cited to us addresses

whether it violates the First Amendment. The majority mentions our

Barnette-related decision in Brindson, ante at 14, but that case addressed a

mock exercise where students had to “mimic the pledge ceremony that

Mexican citizens follow” by reciting the Mexican Pledge of Allegiance and

singing the Mexican National Anthem. Brindson v. McAllen Indep. Sch. Dist.,

863 F.3d 338, 343 (5th Cir. 2017). Like Barnette, Brindson involved a coerced

pledge recitation, not an assignment where students write a pledge’s words.

The majority concludes we lack jurisdiction to decide this issue

because of disputes about Arnold’s motives for giving the assignment. Ante

at 14–15. Like the district court, it relies on an in-class monologue Arnold

gave the day after the assignment—a stream-of-consciousness rant ranging

from the Pledge to communism, the Pope, the Cuban Missile Crisis, sex

offender laws, and the Day of the Dead (the Mexican holiday, not the zombie

movie). Ante at 4–6. This appeal being interlocutory, I assume a jury could

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therefore infer that Arnold gave the assignment hoping to inculcate respect

for the Pledge. See, e.g., Cunningham v. Castloo, 983 F.3d 185, 190 (5th Cir.

2020) (on interlocutory appeal of qualified immunity denial, “[w]e lack

jurisdiction to review the genuineness of the factual disputes the district court

identified”). But nothing prevents us from deciding whether that dispute is

material to qualified immunity. See id. (“We may of course decide whether

the factual disputes the district court said were material are in fact material.”)

(citing Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc)). I fail to

see how it is.

Let’s assume Arnold had an impure motive for giving the Pledge

assignment. What decision clearly establishes that, because of that motive,

he violated the First Amendment? Indeed, what decision says that asking

students to write down words as part of a class exercise constitutes “compelled

speech” in the first place? 1 To be sure, one can conjure up a scenario where

a teacher makes students “swear allegiance” to the flag through a written

oath. But no one pretends that is the situation here. 2 Even if Arnold hoped

1

Cf. Wood v. Arnold, 915 F.3d 308, 318–19 (4th Cir. 2019) (assignment asking

history students to list the “Five Pillars” of Islam “did not require [the plaintiff student]

to profess or accept the tenets of Islam”); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 187

(3d Cir. 2005) (“A student may . . . be forced to speak or write on a particular topic even

though the student might prefer a different topic.”); Axson-Flynn v. Johnson, 356 F.3d 1277

(10th Cir. 2004) (declining to adopt a First Amendment standard that would “effectively

give each student veto power over curricular requirements, subjecting the curricular

decisions of teachers to the whims of what a particular student does or does not feel like

learning on a given day”); see also, e.g., Mahanoy Area Sch. Dist. v. B.L., --- S. Ct. ---, 2021

WL 2557069, at *8 (U.S. June 23, 2021) (Alito, J., concurring) (“In a math class, for

example, the teacher can insist that students talk about math, not some other subject.”).

2

See, e.g., Torcaso v. Watkins, 367 U.S. 488, 491 & n.4 (1961) (discussing tender to

Lord Baltimore by the Colony of Virginia of the “oaths of supremacy and allegiance,” and

recounting that Baltimore, “who making profession of the Romish Religion, utterly refused

to take the same”). One can also imagine a written classroom assignment so contrary to a

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to foster respect for the Pledge, that does not make him a latter-day Henry

VIII.

Finally, consider the implications of the majority’s approach. It sends

to trial a § 1983 claim based on a student’s objection to a written assignment,

merely because there is a question about the teacher’s motive for giving it.

One can imagine where this approach, if taken in a precedential opinion,

might lead. It is not a happy place.

We live in an easily offended age. Even Dr. Seuss is controversial. 3

Suppose, for instance, a teacher asks students to memorize and write down

these well-known passages:

We hold these truths to be self-evident, that all men are created

equal, that they are endowed by their Creator with certain

unalienable Rights, that among these are Life, Liberty and the

pursuit of Happiness. That to secure these rights,

Governments are instituted among Men, deriving their just

powers from the consent of the governed[.]

student’s religious beliefs that making him do it would violate the Free Exercise Clause—

for instance, an assignment to write the words, “Jesus was not the Son of God” or “Praise

be Quetzalcoatl.” See, e.g., Christopher F. Rufo, Revenge of the Gods (discussing a proposed

“ethnic studies curriculum” in California that “urges students to chant to the Aztec deity

of human sacrifice”), https://christopherrufo.com/revenge-of-the-gods/ (last visited June

24, 2021). Again, we do not have anything like that here.

3

See Seussville.com (reporting Dr. Seuss Enterprises’ “decision . . . to cease

publication and licensing of the following titles: And to Think That I Saw It on Mulberry

Street, If I Ran the Zoo, McElligot’s Pool, On Beyond Zebra!, Scrambled Eggs Super!, and The

Cat’s Quizzer” because “[t]hese books portray people in ways that are hurtful and

wrong”), available at https://www.seussville.com/statement-from-dr-seuss-enterprises/

(last visited June 24, 2021). See also Philip Nel, Was the Cat in the Hat

Black? The Hidden Racism of Children’s Literature and the Need

for Diverse Books 32 (2017) (“The Cat in the Hat is . . . racially complicated,

inspired by blackface performance, racist images in popular culture, and at least one real

African American.”).

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Unanimous Declaration of the Thirteen United States

of America (July 4, 1776). The words teem with occasions for offense:

they are arguably sexist (“Men”) and religious (“Creator”), and were

written by a notorious slaveholder. What if there were evidence the teacher

gave the assignment to inculcate respect for Thomas Jefferson? Lawsuit.

Or suppose a teacher, hoping to pass on the legacy of Dr. Martin

Luther King, Jr., asks students to transcribe his most famous speech, which

contains this passage:

I have a dream that my four little children will one day live in a

nation where they will not be judged by the color of their skin

but by the content of their character.

Martin Luther King, Jr., I Have a Dream: Address to the

March on Washington for Jobs and Freedom (Aug. 28, 1963).

Today, this aspiration of colorblindness has come under fire. 4 May an

offended student sue the teacher for being asked to copy Dr. King’s words?

Under the majority’s approach, yes.

I respectfully dissent.

4

See, e.g., Ibram X. Kendi, How to be an Antiracist 10 (2019) (“The

language of color blindness . . . is a mask to hide racism.”); Cornel West, Foreword to

Michelle Alexander, The New Jim Crow: Mass Incarceration in the

Age of Colorblindness x (2010) (“In fact, the very discourse of colorblindness

. . . has left America blind to the New Jim Crow.”).

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