Morgan v. Swanson

Case: 09-40373 Document: 00511615560 Page: 1 Date Filed: 09/27/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 27, 2011

No. 09-40373 Lyle W. Cayce

Clerk

DOUG MORGAN, et al.,

Plaintiffs-Appellees

v.

LYNN SWANSON, et al.,

Defendants-Appellants

Appeal from the United States District Court

for the Eastern District of Texas

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA,

DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN,

ELROD, SOUTHWICK, and HAYNES, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

This is a qualified immunity appeal that asks us to decide whether

defendant school principals violated clearly established law when they restricted

elementary students from distributing written religious materials while at

school. Answering this question requires recourse to a complicated body of law

that seeks, often clumsily, to balance a number of competing First Amendment

imperatives. This body of law failed to place the constitutionality of the

defendants’ conduct beyond debate, so they are entitled to qualified immunity.

Parts I through IV of this opinion, together with the separate concurrences of

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Chief Judge Jones, Judge King, Judge Garza, Judge Owen and Judge Dennis,

reflect the views of the majority of the en banc Court granting qualified

immunity to the principals and the judgment reversing the district court.1

Although the law was not clearly established, a separate majority of the

Court holds that the principals’ actions—as alleged in the complaint—were

unconstitutional. Parts III A, C, and D of Judge Elrod’s opinion represent the

opinion of the court on these issues, with special concurrences by both Judge

Prado and Judge Owen.

I

The plaintiffs in this case are four former elementary-school students in

the Plano Independent School District (PISD), along with their parents. The

plaintiffs are evangelical Christians, which is to say, in their own words, that

their faith “strongly emphasizes the personal nature of personal evangelism and

dissemination of religious viewpoint material.” They explain that their religious

training and beliefs require them to “communicate religious viewpoint ideas to

their peers, classmates, and other students,” so as to “introduce . . .

classmates . . . to the truth of the Christian Faith.” These students and their

families have sued PISD because school officials have, at various times and in

various ways, prevented them from evangelizing while at school. More

specifically, the linchpin of the plaintiffs’ claims is that they have been

prohibited from distributing written religious materials while at school.

1

Parts I through IV of this opinion, granting immunity to the defendants because the

law was not clearly established, are joined by Judges King, Davis, and Stewart. Judge Dennis

also joins these Parts in full, except for one point of law in Part IV(A), as discussed in his

special concurrence. Judge Owen joins only Parts II through IV.

Part V of this opinion addresses the constitutionality of the principals’ conduct, as

alleged in the complaint. Parts V(A) through (C) conclude that one of the incidents involving

Principal Bomchill was unconstitutional, while Part V(D) concludes that the Court should not

reach the underlying constitutional question as to the remaining incidents. Judges King,

Davis, Garza, Stewart, and Dennis would not address the constitutionality of the conduct of

either principal and join only in Part V(D).

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Before us today are two individual defendants’ motions to dismiss for

qualified immunity.2 Jonathan Morgan and Stephanie Versher (with their

parents) bring damages claims against, respectively, Lynn Swanson, principal

of Thomas Elementary School, and Jackie Bomchill, former principal of Rasor

Elementary School.3 The district court denied Swanson and Bomchill’s joint

motion to dismiss for qualified immunity. The principals appealed, and a panel

of this Court affirmed.4 The principals petitioned for rehearing en banc, and we

granted their motion.5

A

Plaintiff Jonathan Morgan alleges that Principal Swanson violated his

First Amendment rights in connection with a so-called “winter-break” party at

Thomas Elementary in December of 2003. The winter-break parties were

conducted yearly at Thomas Elementary in individual classrooms for attendance

by all students. The parties were conducted pursuant to written “guidelines and

2

The case now before us represents a relatively small part of the plaintiffs’ larger suit.

The complaint mounts facial and as-applied challenges to several versions of PISD’s student-

speech policy, along with claims against six school officials in their official and individual

capacities. These various claims are proceeding in pieces. We have already considered and

rejected a facial challenge to one version of PISD’s student-speech policy. See Morgan v. Plano

Indep. Sch. Dist. (Morgan I), 589 F.3d 740 (5th Cir. 2009). The as-applied challenge to the

school policy and the official-capacity claims will proceed on their own timetable. In other

words, this is not our first word on the issues in this case, and it will likely not be our last.

3

A third student, Michaela Wade, also asserts claims against Swanson. However, the

complaint plainly indicates that “[t]he Wade Plaintiffs do not seek damages”; their allegations

are offered only in support of the plaintiffs’ claims for equitable relief. This is an appeal from

a denial of qualified-immunity, which is an immunity from claims for damages only. See, e.g.,

Williams v. Ballard, 466 F.3d 330, 334 (5th Cir. 2006) (citing Orellana v. Kyle, 65 F.3d 29, 33

(5th Cir. 1995)). Like the district court below, we do not consider the Wade incident in

determining Swanson’s entitlement to immunity.

4

Morgan v. Swanson, 627 F.3d 170, vacated and reh’g granted, 628 F.3d 705 (5th Cir.

2010) (en banc).

5

Morgan, 628 F.3d at 705.

3

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regulations”6 and were planned and supervised by volunteer room parents and

individual classroom teachers. Although the parties were conducted in

individual classrooms, they were governed across each grade level by strict,

specific guidelines.

Third-grader Jonathan Morgan wished to distribute a gift to his

classmates at the 2003 winter-break party, as he alleges was common practice

at his school. Students typically brought gifts for their classmates to the winter-

break parties in gift bags, or “goody bags.” Morgan’s proposed gift was a “candy

cane ink pen,” attached to a laminated bookmark containing a written message,

“The Legend of the Candy Cane”:

A candy maker wanted to invent a candy that was a witness

to Christ.

First of all, he used a hard candy because Christ is the Rock

of Ages. This hard candy was shaped so that it would resemble a “J”

for Jesus, or, turned upside down, a shepherd’s staff. He made it

white to represent the purity of Jesus.

Finally, a red stripe was added to represent the blood Christ

shed for the sins of the world, and three thinner red stripes he

received on our behalf when the Roman soldiers whipped him.

Sometimes a green stripe is added as a reminder that Jesus is a gift

from God.

The flavor of the cane is peppermint, which is similar to

hyssop. Hyssop is in the mint family and was used in the Old

Testament for purification and sacrifice. Jesus is the pure lamb of

God, come to be a sacrifice for the sins of the world.

So, every time you see a candy cane, remember the message

of the candy maker: Jesus is the Christ!

6

The plaintiffs attached to their complaint the guidelines for the winter-break parties,

so we may consider them at this stage. We have previously held that, in considering a Rule

12(b)(6) motion, we look at both “the facts stated in the complaint and the documents either

attached to or incorporated in the complaint.” Lovelace v. Software Spectrum Inc., 78 F.3d

1015, 1017 (5th Cir. 1996).

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Morgan intended to distribute these “Legend of the Candy Cane” pens inside his

gift bags, which would be inscribed, “TO: [Classmate’s name], FROM: Jonathan

Morgan.”7

Morgan’s parents suspected, based on conversations with other parents,

that school officials would not allow Jonathan to distribute the “Legend of the

Candy Cane” in the classroom. Thus, they arranged a meeting with Principal

Swanson on December 4, 2003.8 Principal Swanson confirmed at the meeting

that Jonathan would not be allowed to distribute “The Legend of the Candy

Cane” at the winter-break party. She offered that he could distribute a goody

bag at the party containing nonreligious items, and that he would be permitted

to distribute “The Legend of the Candy Cane” at a table in the school library.

This offer failed to mollify the Morgans, who never attempted to avail

themselves of the “library information table” option. Instead, they consulted

their attorney, who sent a demand to Swanson on December 17, 2003, informing

her that it was unconstitutional to exclude religious gifts from the classroom

parties. Counsel further opined that any Establishment Clause concerns arising

from the distribution of religious materials in elementary schools were

unfounded. The Morgans demanded that Jonathan “and other students” be

7

Jonathan Morgan is not the first student to file a federal lawsuit over an attempt to

distribute some version of “The Legend of the Candy Cane.” See, e.g., Curry ex rel. Curry v.

Hensiner, 513 F.3d 570 (6th Cir. 2008); Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271

(3d Cir. 2003); Westfield High Sch. L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98 (D.

Mass. 2003).

8

At the meeting, they aired a laundry-list of complaints about PISD’s treatment of

student religious speech. They were unhappy, for instance, that a teacher had instructed their

son to write “Happy Holidays” (rather than “Merry Christmas”) on a seasonal card for a local

senior citizen, prepared as part of a school activity. The Morgans were also offended by

Thomas Elementary’s characterization of the end-of-semester parties as “winter-break” parties

because it is their belief that “Christians do not celebrate ‘winter break’ parties.” However,

the Morgans do not seek damages arising from these incidents, which the complaint does not

attribute to Swanson.

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allowed to distribute religious gifts at the classroom parties, lest they seek

redress in federal court.

The next day, December 18, 2003, counsel for the school district

responded.9 The district denied the Morgans’ allegations that only religious gifts

would be forbidden at the winter-break parties, citing PISD’s policy FNAA

(LOCAL), which prohibited distribution of “any written material, tapes, or other

media over which the school does not exercise control and that is intended for

distribution to students” without prior approval from the school. The day before,

Carole Griesdorf, another PISD administrator, had given a similar explanation

in an e-mail to the Morgans, noting that “[s]tudents may not hand out anything

to their classmates in class in bags or separately.” The district also reiterated

Swanson’s offer for Jonathan to distribute his materials in the school library.

Although the district’s official position was that no outside materials were

to be circulated in the classrooms, it maintained that it would be within its

rights to specifically restrict distribution of religious messages in the

classroom.10 Counsel pointed the Morgans to the Third Circuit’s decision in Walz

9

This letter was attached to the plaintiff’s original complaint. The plaintiffs

subsequently amended their complaint, failing then to attach the letter. This appears to have

been an act of inadvertence. Like the original complaint, second amended complaint—the live

complaint in this action— incorporates and discusses the letter, referring to it as “Exhibit 7.”

However, Exhibit 7 is missing from the live complaint, which skips from Exhibit 6 to Exhibit

8. We can only assume that this was a good-faith accidental omission on the part of the

plaintiffs, who have extensively characterized the letter in their complaint. Even if it were

not, it would be proper for us to consider the letter because the complaint incorporates it by

reference. See Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011)

(noting that “a court ruling on a 12(b)(6) motion may rely on the complaint,” along with

“‘documents incorporated into the complaint by reference’” (quoting Dorsey v. Portfolio

Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).

10

Specifically, the district’s letter said:

The holiday party at issue is a classroom activity that has a clearly defined

curricular purpose to teach social skills and respect for others in a festive

setting. This activity is highly structured, supervised, and regulated. Thus, it

is well within the school’s ambit of authority to prevent the distribution of

candy canes or other media by Jonathan at the holiday party. Moreover, the

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v. Egg Harbor Township Board of Education,11 in which that court upheld a

school’s restriction on a student seeking to distribute a written message—almost

verbatim with “The Legend of the Candy Cane”—at a classroom winter holiday

party.

Despite having been told that Jonathan would not be allowed to distribute

“The Legend of the Candy Cane” at the party, the Morgans nevertheless brought

the items to the classroom the day of the party. They confronted Principal

Swanson, who again offered that the Morgans could leave the gifts in the library

for his classmates to pick up. The Morgans complained that they had observed

other students bringing their goody bags into the classroom. In response,

Principal Swanson returned to her office and broadcast an announcement to the

entire school: students were not permitted to bring outside materials into the

classroom for distribution.

The Morgans were unsatisfied with Swanson’s “no materials” loudspeaker

announcement because Swanson failed to return to Jonathan’s classroom and

personally require the other students to remove their goody bags. After the

announcement, they confronted Swanson again, this time complaining that

Jonathan’s teacher, Mrs. Helmke, had given a different explanation for why he

would not be allowed to distribute “The Legend of the Candy Cane”—its religious

viewpoint. The Morgans complain that Swanson failed to “correct” or “apologize

for” Mrs. Helmke’s actions, or to “state that Mrs. Helmke acted contrary to PISD

policy and custom” or take “corrective measures” against her. In the end,

school’s offer to allow Jonathan to hand out his materials after class or at the

designated area for distribution is more than a reasonable accommodation, and

eliminates any First Amendment concerns. As you well know, the Third Circuit

has recently re-affirmed, under almost identical facts to those present here, that

a school’s restrictions on an elementary school student’s distribution of candy

canes and pencils containing a religious message during a classroom holiday

party did not violate the First Amendment.

11

342 F.3d 271 (3d Cir. 2003).

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although district officials offered a viewpoint-neutral explanation, the Morgans

allege that Jonathan was the only student forbidden from distributing his chosen

gift at the 2003 winter-break party.12

B

Plaintiff Stephanie Versher alleges that defendant Jackie Bomchill

violated her First Amendment rights by prohibiting her from distributing

written religious materials at Rasor Elementary School on three separate

occasions. All of these occurred in January of 2004, during Stephanie’s second-

grade year. In the first incident, Stephanie attempted to distribute to her

classmates tickets to a passion play—a “dramatic representation of the scenes

connected with the passion and crucifixion of Jesus”13—to be performed at a local

church. Like the other plaintiffs in this case, it is Stephanie’s sincere religious

belief that she “should share her beliefs with her friends,” apparently including

this representation of the “crucifixion of Jesus Christ.”

The complaint provides little detail regarding Stephanie’s distribution of

the passion-play tickets. It is unclear where she distributed them: we do not

know whether it was in the hallway, the classroom, the restroom, or the

playground. Nor is it clear when she distributed the tickets, beyond the

conclusory label that she distributed them “during non-curriculum times.” We

do not know whether Stephanie distributed the tickets during passing period

12

We note that the complaint fails to make clear the exact nature of Swanson’s

involvement in this speech restriction. The complaint stops short of alleging that Principal

Swanson personally allowed the other students to distribute their nonreligious gifts, even after

her viewpoint-neutral loudspeaker announcement. Thus, it is difficult to discern the Morgans’

precise theory of Swanson’s liability from the face of the complaint: whether they mean to

allege that she personally discriminated against Jonathan’s viewpoint, or whether they allege

some theory of supervisory liability. We need not resolve this problem with the plaintiffs’

pleading, though, because we hold that Swanson would be entitled to immunity even if she had

directly and personally restricted only the religious gifts.

13

MERRIAM-WEBSTER’S DICTIONARY, available at www.m-w.com.

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between classes, in the classroom before the bell rang, or in the moments in

between her teacher’s lessons. It is also unclear how many tickets Stephanie

distributed. The complaint alleges that she approached other students to “talk

to [them] about the drama presentation depicting the crucifixion of Jesus Christ”

and “asked them whether or not they would like to attend.” But it fails to allege

how many of them accepted the tickets, nor whether she offered them to all

interested students. We also do not know how she chose which students to

approach, nor whether she approached them at times when they were free to

walk away and not listen to her thoughts on “the crucifixion of Jesus Christ”

before declining the tickets.

When defendant Jackie Bomchill, the principal of Stephanie’s school,

became aware that Stephanie was distributing these tickets, she instructed

Stephanie’s teacher to stop her from distributing them. She also asked

Stephanie’s teacher to collect the tickets from the students that had already

received them.

The second incident between Stephanie and Principal Bomchill occurred

later that same month, in conjunction with Stephanie’s “half-birthday” party.

PISD allows students to celebrate their birthdays or “half birthdays” (for

students born in the summer) at school with their classmates. These parties

occur during the school day, “primarily at the end of the lunch period or during

a snack break between instructional time.” The complaint notes that the school

allows students to bring a snack and a small gift to distribute to their

classmates. It does not indicate whether these parties typically occur in the

classroom, nor whether classmates’ attendance is optional or mandatory.

The day of Stephanie’s “half-birthday” party, her mother Sherrie Versher

brought brownies to share with Stephanie’s classmates, with two pencils

attached. One was inscribed with the word “Moon,” and the other read, “Jesus

loves me this I know for the Bible tells me so.” Sherrie Versher apparently was

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concerned that Stephanie would not be allowed to distribute the “Jesus” pencils

because of their religious message, so she proceeded to Principal Bomchill’s

office. At their meeting, Bomchill informed Sherrie Versher that Stephanie

could distribute the brownies and the “Moon” pencil, but that she would not be

allowed to distribute the “Jesus” pencils. Versher then left Bomchill’s office to

call her attorney. It is not clear what advice Versher received, but when she

returned, she sought only to confirm that the reason the “Jesus” pencils were not

allowed was their religious message. Bomchill confirmed this and offered

Versher an alternative to distributing the “Jesus” pencils during the school day:

Stephanie would be allowed to distribute the pencils after school “outside of the

school building.”

During the time Versher was in Bomchill’s office, Versher was presented

with a letter from John Beasley, a campus security official, regarding the earlier

incident with the passion-play tickets. Campus security was apparently under

the mistaken impression that Sherrie Versher herself (rather than her daughter)

had distributed the tickets at Rasor Elementary. The letter informed Sherrie

Versher of the school’s policy forbidding distribution of materials by an outside

person without permission and indicated that “appropriate law enforcement

officials may be called when a person refuses to follow the procedures for

submitting materials and fails to leave the premises when asked.”

After the meeting in Bomchill’s office, the situation escalated into hostility.

As Sherrie Versher left the school offices, she “thought out loud to herself”:

“‘Satan is in the building.’” It is unclear to whom this “Satan” commentary was

directed, but after her “Satan” statement, she alleges that school officials

“stalked” her at various locations throughout the school building. Sherrie

proceeded to the school cafeteria, where her daughter Stephanie was eating

lunch. Sherrie informed her daughter that she would not be allowed to

distribute the “Jesus” pencils during school, but that Bomchill had agreed she

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could distribute the pencils after school, “outside of the school building.” Sherrie

gave Stephanie the “Jesus” pencils and instructed her to put them in her

backpack until after school, at which time her friends “could meet her on the

school lawn to get those pencils.”

The third Versher–Bomchill incident occurred later that day, after school.

Stephanie Versher again attempted to distribute her “Jesus” pencils, this time

“outside of the school building on the school sidewalk and lawn.” The complaint

carefully alleges that Stephanie was standing “amongst a small group of her

classmates,” and that she was handing out the “Jesus” pencils only to classmates

that approached her and requested one. When Bomchill saw Stephanie

distributing the pencils after school, she approached her and told her she could

not distribute them “while on PISD school property,” and that if Stephanie tried

to distribute the crucifixion tickets or “Jesus” pencils again “while on school

property at any time, she would be ‘kicked out of the school.’” This touched off

a disagreement between Bomchill and Sherrie Versher, who was standing by

watching her daughter distribute the pencils. “Either Bomchill or Beasley then

accused Sherrie Versher of being ‘purposely defiant’” of earlier instructions that

Stephanie could only distribute her “Jesus” pencils “outside of the building and

‘across the street.’” Versher asserts that this accusation was false and

represents a retreat from Bomchill’s earlier position that Stephanie could

distribute the religious pencils so long as she was outside the school.

II

The action before us is an interlocutory appeal from the district court’s

denial of a motion to dismiss on qualified immunity. “[A]n order denying

qualified immunity, to the extent it turns on an ‘issue of law,’ is immediately

appealable.”14 Our jurisdiction in this context extends to interlocutory appeals

14

Behrens v. Pelletier, 516 U.S. 299, 311 (1996) (quoting Mitchell v. Forsyth, 472 U.S.

511, 530 (1985)).

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taken from both denials of motions to dismiss and denials of motions for

summary judgment.15 We review de novo a district court’s refusal to dismiss on

the basis of qualified immunity.16 In so doing, we must accept all well-pleaded

facts as true and draw all reasonable inferences in favor of the nonmoving

party.17 However, we do not presume true a number of categories of statements,

including legal conclusions; mere “labels”; “[t]hreadbare recitals of the elements

of a cause of action”;“conclusory statements”; and “naked assertions devoid of

further factual enhancement.”18

III

The doctrine of qualified immunity protects government officials from civil

damages liability when their actions could reasonably have been believed to be

legal.19 This immunity protects “all but the plainly incompetent or those who

knowingly violate the law,”20 so we do not deny immunity unless “existing

precedent must have placed the statutory or constitutional question beyond

debate.”21 The basic steps of our qualified-immunity inquiry are well-known: a

plaintiff seeking to defeat qualified immunity must show: “(1) that the official

15

Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251 (5th Cir. 2005) (emphasis omitted)

(citing Behrens, 516 U.S. at 307).

16

Id. at 252 (citing Wilkerson v. Stalder, 329 F.3d 431, 434 (5th Cir. 2003)).

17

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009); see also Woodard v.

Andrus, 419 F.3d 348, 351 (5th Cir. 2005) (“The complaint must be liberally construed, with

all reasonable inferences drawn in the light most favorable to the plaintiff.” (citing Sloan v.

Sharp, 157 F.3d 980, 982 (5th Cir. 1998)).

18

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

19

See id. (noting that qualified immunity’s shield applies “so long as an official’s actions

could reasonably have been thought consistent with the rights they are alleged to have

violated”).

20

Malley v. Briggs, 475 U.S. 335, 341 (1986)

21

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (emphasis added).

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violated a statutory or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.”22

Courts have discretion to decide which prong of the qualified-immunity

analysis to address first.23 Here, because our resolution of this appeal turns

principally on our conclusion that the rights asserted by the plaintiffs were not

clearly established, we address step two of the qualified-immunity inquiry first.

IV

We hold today that the principals are entitled to qualified immunity

because clearly established law did not put the constitutionality of their actions

beyond debate. When educators encounter student religious speech in schools,

they must balance broad constitutional imperatives from three areas of First

Amendment jurisprudence: the Supreme Court’s school-speech precedents, the

general prohibition on viewpoint discrimination, and the murky waters of the

Establishment Clause. They must maintain the delicate constitutional balance

between students’ free-speech rights and the Establishment Clause imperative

to avoid endorsing religion. “The many cases and the large body of literature on

this set of issues” demonstrate a “lack of adequate guidance,”24 which is why no

federal court of appeals has ever denied qualified immunity to an educator in

this area. We decline the plaintiffs’ request to become the first.

A

Before discussing the substantive law in this case, we turn to first

principles to guide our determination of what it means for the law to be “clearly

22

Id. at 2080 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

23

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

24

Pounds v. Katy Indep. Sch. Dist., 730 F. Supp. 2d 636, 638 (S.D. Tex. 2010); see also

Nurre v. Whitehead, 580 F.3d 1087, 1090 (9th Cir. 2009) (“There exists a delicate balance

between protecting a student’s right to speak freely and necessary actions taken by school

administrators to avoid collision with the Establishment Clause.”).

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established.” When considering a defendant’s entitlement to qualified immunity,

we must ask whether the law so clearly and unambiguously prohibited his

conduct that “every ‘reasonable official would understand that what he is doing

violates [the law].’”25 To answer that question in the affirmative, we must be

able to point to controlling authority—or a “robust ‘consensus of persuasive

authority’”26—that defines the contours of the right in question with a high

degree of particularity.

Where no controlling authority specifically prohibits a defendant’s conduct,

and when the federal circuit courts are split on the issue, the law cannot be said

to be clearly established.27 This is true even when the circuit split developed

after the events in question.28 As the Supreme Court explained, “if judges thus

disagree on a constitutional question, it is unfair to subject [government officials]

to money damages for picking the losing side of the controversy.”29

Further, the Supreme Court has held that generalizations and abstract

propositions are not capable of clearly establishing the law. The Supreme Court

recently—and forcefully—underscored this point in Ashcroft v. al-Kidd, where

it noted, with some exasperation, that it has “repeatedly told courts . . . not to

25

Al-Kidd, 131 S. Ct. at 2083 (emphasis added) (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)).

26

Id. at 2084 (citing Wilson v. Layne, 526 U.S. 603, 617 (1999)). In a situation where

no “directly controlling authority” prohibits the defendants’ conduct, we look to the law of

other jurisdictions “in assessing whether a reasonable [official] would have known . . . that his

conduct was unlawful.” McClendon v. City of Columbia, 305 F.3d 314, 329 (5th Cir. 2002) (en

banc) (discussing Wilson, 526 U.S. at 603).

27

Wilson, 526 U.S. at 617–18.

28

See id. (holding that qualified immunity was appropriate because “[b]etween the time

of the events of this case and today’s decision, a split among the Federal Circuits in fact

developed”).

29

Id. at 618.

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define clearly established law at a high level of generality.”30 This rule is

eminently sensible, of course, as the Court has explained:

[T]he right to due process of law is quite clearly established by the

Due Process Clause, and thus there is a sense in which any action

that violates that Clause . . . violates a clearly established right. . . .

But if the test of “clearly established law” were to be applied at this

level of generality, it would bear no relationship to the “objective

legal reasonableness” that is the touchstone of [qualified

immunity].”31

Although the Supreme Court has repeatedly admonished courts not to

define clearly established law at a high level of generality, this does not mean

that “a case directly on point” is required.32 Rather, “existing precedent must

have placed the statutory or constitutional question beyond debate.”33 The sine

qua non of the clearly-established inquiry is “fair warning.”34 Thus, we must ask

“not only whether courts have recognized the existence of a particular

constitutional right, but also . . . whether that right has been defined with

sufficient clarity to enable a reasonable official to assess the lawfulness of his

conduct.”35

30

Id. (citations omitted); see also Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (holding

that the clearly-established inquiry “must be undertaken in light of the specific context of the

case, not as a broad general proposition”).

31

See Anderson, 483 U.S. at 639.

32

Al-Kidd, 131 S. Ct. at 2083.

33

Id. (emphasis added).

34

See Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[T]he salient question that the Court

of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair

warning that their alleged treatment of Hope was unconstitutional.”).

35

McClendon v. City of Columbia, 305 F.3d 314, 331 (5th Cir. 2002) (en banc)

(discussing Wilson, 526 U.S. at 614–15, and Anderson, 483 U.S. at 640).

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The Supreme Court’s admonition in Al-Kidd that we should not “define

clearly established law at a high level of generality” sits in tension with its

earlier statement in Hope v. Pelzer that “general statements of the law are not

inherently incapable of giving fair and clear warning,” at least in a certain

category of “obvious” cases.36 In Hope, the Court noted that the general Eighth

Amendment prohibition against the unnecessary and wanton infliction of pain

“arguably” gave the defendants “fair warning” that it was unconstitutional to

strip a prisoner shirtless and chain him to a hitching post (a painful stress

position) for seven hours in the Alabama sun. But the Court’s suggestion that

generalizations can sometimes clearly establish the law was dicta; the Court did

not rest its qualified-immunity decision on such a broad statement. It relied

instead on binding circuit precedent prohibiting extremely similar conduct,

including “handcuffing inmates to the fence and to cells for long periods of

time.”37

The Al-Kidd Court, in admonishing lower courts “not to define clearly

established law at a high level of generality,” did not discuss or even cite Hope,

nor other earlier opinions reflecting a similar concern that a damages remedy be

available for “obvious” or flagrant constitutional violations.38 This silence is

36

Hope, 536 U.S. at 741 (quoting Anderson, 483 U.S. at 640) (emphasis added).

37

Id. at 742 (citing Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974)).

38

See United States v. Lanier, 520 U.S. 259, 268–69 (1997) (quoting Anderson, 483 U.S.

at 640) (rejecting the Sixth Circuit’s stringent specificity requirement for “fair warning”

purposes in a case involving a state-court judge who sexually assaulted several women in his

chambers). The Supreme Court has also favorably cited an oft-quoted Seventh Circuit opinion

reiterating the importance of providing for a remedy in the most obvious of cases:

The easiest cases don’t even arise. There has never been a section 1983

case accusing welfare officials of selling foster children into slavery; it

does not follow that if such a case arose, the officials would be immune

from damages liability because no previous case had found liability in

those circumstances.

K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (cited in Safford Unified Sch.

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puzzling given that Al-Kidd reversed a Ninth Circuit decision denying immunity

in reliance on Hope.39 Adding to the perplexity is that, in its next major “clearly

established” opinion after Hope, the Supreme Court granted qualified immunity

because there were no cases that “squarely govern[ed].”40 That said, this case

does not call on us to decide whether the Court’s statements in Hope survive Al-

Kidd: the constitutional issue in this case is far from “beyond debate,” as

evidenced by a large body of oft-conflicting case law and the variety of opinion

among members of this Court. We leave for another day the question of whether

and when a constitutional violation may be so “obvious” that its illegality is clear

from only a generalized statement of law.

B

Because no specific and factually analogous precedent guides our

determination of this case, we look first to the Supreme Court’s general school-

speech precedents. In Tinker v. Des Moines Independent Community School

District, the Court famously held that students do not “shed their constitutional

rights to freedom of speech or expression at the schoolhouse gate.”41 This

decision has been called the “high water mark” of student speech rights.42 But

Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2643 (2009)).

39

See Al-Kidd v. Ashcroft, 580 F.3d 949, 970 (9th Cir. 2009), rev’d, 131 S. Ct. 2074

(2011) (quoting Hope, 536 U.S. at 739).

40

Brosseau, 543 U.S. at 201 (emphasis added). A leading treatise on federal jurisdiction

has noted an “obvious tension” between Hope, which “declar[ed] that there need not be a case

on point to overcome qualified immunity,” and Brosseau, which found “qualified immunity

based on the lack of a case on point.” ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 8.6, at

555 (5th ed. 2007).

41

393 U.S. 503, 506 (1969).

42

E.g., Rebecca Aviel, Compulsory Education and Substantive Due Process: Asserting

Student Rights to a Safe and Healthy School Facility, 10 LEWIS & CLARK L. REV. 201, 229

(2006); Kristi L. Bowman, Public School Students’ Religious Speech and Viewpoint

Discrimination, 110 W. VA. L. REV. 187, 201 (2007) (citation omitted).

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with every subsequent student-speech decision, the Supreme Court has

“expanded the kinds of speech schools can regulate.”43 Indeed, the rights

announced in Tinker do not extend to several broad categories of student speech:

“lewd, indecent, or offensive” speech;44 school-sponsored speech;45 and speech

“that a reasonable observer would interpret as advocating illegal drug use.”46

This contraction of student speech rights in public schools has continued even

as the Supreme Court has broadened First Amendment rights in other contexts,

including in cases involving minors.47 Indeed, the Court has long recognized that

43

Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 507 (5th Cir.

2009). Indeed, this contraction of Tinker led Justice Thomas to lament that the Court has

failed to adequately explain “when [Tinker] operates and when it does not”:

we continue to distance ourselves from Tinker, but we neither overrule it nor

offer an explanation of when it operates and when it does not. I am afraid that

our jurisprudence now says that students have a right to speak in schools

except when they don’t—a standard continuously developed through litigation

against local schools and their administrators.

Morse v. Frederick, 551 U.S. 393, 418 (2007) (Thomas, J., concurring); see also Erwin

Chemerinsky, Teaching that Speech Matters: A Framework for Analyzing Speech Issues in

Schools, U.C. DAVIS L. REV. 825, 831 (2009) (“Tinker has never been expressly overruled, but

it has been tremendously undermined.”).

44

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

45

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

46

Morse v. Frederick, 551 U.S. 393, 422 (2007) (Alito, J., concurring). We have

identified Justice Alito’s concurrence as the controlling opinion in Morse. Ponce v. Socorro

Indep. Sch. Dist., 508 F.3d 765, 768 (5th Cir. 2007).

This Court also applies a different standard to student-speech restrictions that are

content-neutral. See Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 442–43 (2001) (applying

the O’Brien standard, which is “virtually the same” as the traditional time, place, and manner

analysis).

47

For instance, outside the school environment, the Court has recently invalidated a

California state ban on the sale of violent video games to minors. See Brown v. Entm’t Merch.

Ass’n, 131 S. Ct. 2729 (2011). This is just one example of a recent spate of cases articulating

robust First Amendment protections. See, e.g., Snyder v. Phelps, 131 S. Ct. 1207 (2011)

(shielding hateful speech at military funerals); United States v. Stevens, 130 S. Ct. 1577 (2010)

(protecting depictions of animal cruelty); Citizens United v. Fed. Election Comm’n, 130 S. Ct.

876 (2010) (holding that the government may not restrict political speech simply because the

speaker is a corporation).

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“the constitutional rights of students in public school are not automatically

coextensive with the rights of adults” (or even children) “in other settings.”48 Put

differently, when minors speak in public schools, the Supreme Court has held

that what is good for the goose is not invariably good for the gander.49

We thus evaluate student speech claims “‘in light of the special

characteristics of the school environment,’”50 beginning by categorizing the

student speech at issue.51 This is not always an easy task. The speech

restrictions in this case are alleged to be viewpoint-specific, but not lewd or drug-

related, so we must decide whether to apply the general rule of Tinker or the

Hazelwood rule that applies to curricular or “school-sponsored” speech.52

Tinker addressed the question of when and “whether the First Amendment

requires a school to tolerate particular student speech” that “happens to occur on

48

Fraser, 478 U.S. at 682 (citing New Jersey v. T.L.O., 469 U.S. 325, 340–42 (1985)).

49

Compare, e.g., Morse, 551 U.S. at 401 (upholding a school’s restriction on a student’s

“BONG HiTS 4 JESUS” poster at a school event and noting that a student “cannot stand in

the midst of his fellow students, during school hours, at a school-sanctioned activity and claim

he is not at school”), with Cohen v. California, 403 U.S. 15, 16 (1971) (holding that defendant

had a First Amendment right to wear a jacket reading “Fuck the Draft” in a municipal

courthouse although there were “women and children present”).

50

Morse, 551 U.S. at 394 (quoting Tinker, 393 U.S. at 506).

51

See Morgan I, 589 F.3d at 745 & n.15 (identifying various categories of student

speech).

52

The plaintiffs also argue that we need not resolve the difficult issue of which

precedent to apply because they carefully pleaded that the speech in question was “non-

curricular” and thus not within Hazelwood’s reach. But whether speech is “school-sponsored”

or “curricular” under Hazelwood is a question of law for the Court, not a fact entitled to the

presumption of truth in a plaintiff’s pleading. See Hazelwood, 484 U.S. at 268 (treating

“school-sponsored” and “curricular” as questions for the court and then answering those

questions based on the specific facts before it); Campbell v. St. Tammany Parish Sch. Bd., 64

F.3d 184, 189–90 (5th Cir. 1995) (same); Peck v. Baldwinsville Cent., 426 F.3d 617 (same);

Walz, 342 F.3d at 279 (same); Bannon, 387 F.3d 1208 (same); Fleming, 298 F.3d at 931

(same); see also Iqbal, 129 S. Ct. at 1949 (detailing a number of categories of statements in a

plaintiff’s complaint that are not entitled to the presumption of truth).

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the school premises.”53 School officials may only restrict such private, personal

expression to the extent it would “‘materially and substantially interfere with

the requirements of appropriate discipline in the operation of the school,’”54 or

“impinge upon the rights of other students.”55 Hazelwood, by contrast, addressed

a different question: the scope of “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.”56 This is speech that occurs within the context of

“school-sponsored” activities, or activities that “may fairly be characterized as

part of the school curriculum.”57 “School-sponsored” activities are by no means

limited to the “traditional classroom setting, so long as they are supervised by

faculty members and designed to impart particular knowledge or skills.”58

Educators enjoy far greater latitude to regulate this latter category of expression

and do not offend the First Amendment “so long as their actions are reasonably

related to legitimate pedagogical concerns.”59

This case presents the difficult question of exactly when Hazelwood’s more

deferential standard applies. Neither the Supreme Court nor this Court has

explained whether Tinker or Hazelwood governs students’ dissemination of

written religious materials in public elementary schools, whether at official

parties, after school on the “lawn and sidewalk,” or at unspecified times and in

53

Hazelwood, 484 U.S. at 270–71.

54

Tinker, 393 U.S. at 509 (citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).

55

Id.

56

Hazelwood, 484 U.S. at 271 (emphasis added).

57

Id.

58

Id.

59

Id. at 273.

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unspecified places during the school day. Nor do the facts of Tinker and

Hazelwood offer much guidance. The “private speech” at issue in Tinker was

the “silent, passive expression of opinion”60 of students who wordlessly wore

black armbands to school to protest the Vietnam War. Hazelwood involved

student-authored articles produced for the school newspaper as part of a class.

The critical inquiry in deciding whether speech is “school-sponsored” under

Hazelwood is whether it could reasonably be understood to bear the school’s

imprimatur, which is synonymous with “sanction,” or “approval.”61 Relevant

considerations include (1) where and when the speech occurred;62 (2) to whom

the speech was directed and whether recipients were a “captive audience”;63 (3)

whether the speech occurred during an event or activity organized by the school,

conducted pursuant to official guidelines, or supervised by school officials;64 and

60

Tinker, 393 U.S. at 508.

61

MERRIAM-WEBSTER’S DICTIONARY, available at www.m-w.com.

62

Fleming v. Jefferson Cnty. Sch. Dist., 298 F.3d 918, 925 (10th Cir. 2002) (“Expressive

activities that do not bear the imprimatur of the school could include a variety of activities

conducted by outside groups that take place on school facilities after-school, such as club

meetings.” (citing Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001)).

63

Id. (noting that imprimatur concerns may be heightened where students are a

“captive audience” (citing DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958,

968 (9th Cir. 1999)).

64

Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 279 (3d Cir. 2003) (holding that

school holiday parties were curricular activities because teachers planned the parties and the

parties were supervised and regulated by school); Bannon v. Sch. Dist. of Palm Beach Cnty.,

387 F.3d 1208, 1214–15 (11th Cir. 2004) (holding that murals made by students were

curricular in part because faculty members supervised the project); Fleming, 298 F.3d at

930–31 (holding that tiles created by individual students as part of a school beautification

project bore the school’s imprimatur because the school was “significantly involved in the

creation, funding, supervision, and screening process of the tile project”); Peck v. Baldwinsville

Cent. Sch. Dist., 426 F.3d 617, 628–29 (2d Cir. 2005) (concluding that a student’s poster was

school-sponsored expression because the poster was prepared in response to a school

assignment and the school set parameters for posters in advance).

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(4) whether the activities where the speech occurred were designed to impart

some knowledge or skills to the students.65

The plaintiffs urge a far narrower reading of Hazelwood, arguing that it

represents the slightest of exceptions to the broad speech rights articulated in

Tinker. But their view is out of step with a number of our sister circuits, which

have treated Hazelwood as creating a broad category of speech restrictions

entitled to deference from the federal courts.66 These courts have recognized

“how broadly the Supreme Court has defined school curricula for Hazelwood’s

purposes.”67 Most notable for this case are the Third and Seventh Circuit’s

applications of Hazelwood in the elementary-school context. In a case

remarkably similar to this one, the Third Circuit held that Hazelwood governed

holiday parties held in elementary-school classrooms.68 And the Seventh Circuit

held that the Hazelwood standard governed an elementary student’s attempt to

distribute invitations to a meeting at his church, even “during non-instructional

times.”69

Further complicating our inquiry is the fact that Tinker’s application in

the elementary-school context has never been clearly established.70 Tinker did

65

Bannon, 387 F.3d 1214–15 (applying Hazelwood where project was designed to

impart knowledge—specifically the creation and appreciation of artwork)).

66

E.g., id. (applying Hazelwood to a “school beautification project” for which students

did not earn grades or credit, and which occurred on Saturdays and required a separate

participation fee); Fleming, 298 F.3d at 921, 928 (applying Hazelwood to a project at

Columbine High School in which students were given the opportunity to create artwork on

tiles to be displayed in the school, even though the project was not for students alone and was

open to the general community).

67

Bannon, 387 F.3d at 1214–15.

68

Walz, 342 F.3d at 277.

69

Muller ex rel. Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1539 (7th Cir. 1996).

70

Even counsel for one of the plaintiffs’ amici curiae has recognized as much. See Jay

Alan Sekulow et al., Proposed Guidelines for Student Religious Speech and Observance in

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not, by its own terms, address the rights of elementary students or involve

elementary-aged plaintiffs. Indeed, the petitioners in that case were two high-

school students (ages 15 and 16, respectively), and an eighth-grader (age 13).71

Neither the Supreme Court nor this Court has expressly extended Tinker-based

speech rights into the elementary-school setting. And at least two of our sister

circuits have expressly doubted whether and to what extent Tinker applies to

protect speech in public elementary schools.72

Public Schools, 46 MERCER L. REV. 1017, 1072 (1995) (“Tinker itself dealt with the speech

rights of high school and junior high school students. The proposed guidelines [from this

article] extend the Tinker standard to elementary schools.”); see also Ann Hassenpflug, The

Limits of Freedom of Speech for Students in Grades PK–8, 198 EDUC. L. REP. 383, 383 (2005)

(“In Tinker[,] the Court . . . . did not address . . . any type of elementary student speech.”); Jon

Perrelle, Note: An Opportunity for Reform: Tennessee Secondary School Athletic Association

v. Brentwood Academy and NCAA Recruiting, 74 BROOK. L. REV. 1213, 1231 n.140 (2009)

(“[N]o decisions of the Courts of Appeals apply Tinker-based speech rights to the elementary

school setting . . . .”).

71

Tinker, 393 U.S. at 504.

72

Both the Third and Seventh Circuits have held that, if elementary students enjoy

Tinker-based speech rights, those rights are far more limited than the rights of older students.

The Third Circuit has gone so far as to note that “at a certain point, a school child is so young

that it might reasonably be presumed the First Amendment does not protect the kind of

speech at issue here.” Walker-Serrano ex rel. Walker v. Leonard, 325 F.3d 412, 418 (3d Cir.

2003).

Similarly, the Seventh Circuit has held that, to the extent elementary students enjoy

First Amendment rights at school, those rights are tightly circumscribed in light of their young

age. See, e.g., Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 738 (7th Cir. 1994),

superseded by statute on an unrelated point as recognized in Lawrence v. Kenosha Cnty., 391

F.3d 837, 844 (7th Cir. 2004) (noting the “dearth of caselaw in the lower federal courts”

discussing “the applicability of the First Amendment to grammar school students,” and

holding that “age is a relevant factor in assessing the extent of a student's free speech rights

in school”). At least one member of the Seventh Circuit has expressly doubted whether Tinker

applies to elementary students at all. Muller, 98 F.3d at 1538–39 (opinion of Manion, J.)

(citation omitted) (“[I]t is unlikely that Tinker and its progeny apply to public elementary (or

preschool) students.”). Several subsequent panels have favorably cited Judge Manion’s opinion

and expressed similar doubts as to the scope and applicability of the First Amendment in

public elementary schools. See Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874,

876 (7th Cir. 2011) (citing Muller, 98 F.3d at 1538–39, for the proposition that “the younger

the children, the more latitude the school authorities have in limiting expression”); Brandt v.

Bd. of Educ. of City of Chicago, 480 F.3d 460, 466 (7th Cir. 2007) (doubting the proposition

that the speech clause extends “at least as far down the maturity ladder as a 10-year-old”

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Central to these courts’ speculation that Tinker may not apply in public

elementary schools is the idea that “age is a relevant factor in assessing the

extent of a student’s free speech rights in school.”73 The Supreme Court has long

held that “a school must be able to take into account the emotional maturity of

the intended audience in determining whether to disseminate student speech on

potentially sensitive topics.”74 Further, some courts have found the traditional

justifications for a robust First Amendment lacking in the elementary-school

context. As the Seventh Circuit noted, “[t]he ‘marketplace of ideas,’ an

important theme in the high school student expression cases, is a less

appropriate description of an elementary school, where children are just

beginning to acquire the means of expression.”75

C

Rather than grapple with the complexities of applying Tinker and

Hazelwood in public elementary schools, the plaintiffs urge that the law is

clearly established in light of the general First Amendment rule disfavoring

viewpoint discrimination. Of course, it cannot be gainsaid that “[d]iscrimination

because it stands in tension with Muller, 98 F.3d at 1538-39, and Baxter, 26 F.3d at 736–38);

Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 673 (7th Cir. 2008)

(relying on Muller, 98 F.3d at 1538–39, for the proposition that when a school regulates the

speech of children that are “very young . . . the school has a pretty free hand” (citing also

Baxter, 26 F.3d at 738 (7th Cir. 1994); Blau v. Fort Thomas Public Sch. Dist., 401 F.3d 381,

389 (6th Cir. 2005); Walker-Serrano, 325 F.3d 412, 416–17 (3d Cir. 2003); Lovell by Lovell v.

Poway Unified Sch. Dist., 90 F.3d 367, 373 (9th Cir. 1996)).

73

Baxter, 26 F.3d at 738 (emphasis omitted); see also Zamecnik, 636 F.3d at 876 (“[T]he

younger the children, the more latitude the school authorities have in limiting expression.”);

Nuxoll, 523 F.3d at 673 (noting that when a school regulates the speech of children that are

“very young . . . the school has a pretty free hand” (citations omitted)).

74

Hazelwood, 484 U.S. at 272.

75

Muller, 98 F.3d at 1538; see also Zamecnik, 636 F.3d at 876 ) (“[T]he contribution that

kids can make to the marketplace of ideas and opinions is modest . . . .” (discussing Nuxoll,

523 F.3d at 676–80)).

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against speech because of its message is presumed to be unconstitutional.”76 But

this rule is far too general to clearly establish the law in this case, as the

Supreme Court recently reaffirmed in Al-Kidd: “We have repeatedly told

courts . . . not to define clearly established law at a high level of generality.”77

At argument, the plaintiffs contended that the “level-of-generality

discussion is less important here” because the rule against viewpoint

discrimination is absolute. But this is not so. No matter how “axiomatic”78 the

generalized rule against viewpoint discrimination may be, we cannot neglect

that this case arises in the public schools, a special First Amendment context,79

which admits of no categorical prohibition on viewpoint discrimination. The

plaintiffs cite a handful of cases that ostensibly establish such a prohibition. But

none of these cases involve student speech—let alone elementary-student

speech—at school, during the school day.80

76

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828 (1995) (citing

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641–643 (1994)); see also Chiu v. Plano Indep.

Sch. Dist., 260 F.3d 330, 350 (5th Cir. 2001) (holding that the Court did not need to determine

the nature of a forum for adult speech outside of the school day, because of the “well-settled”

prohibition on viewpoint discrimination “in any forum”).

77

Al-Kidd, 131 S. Ct. at 2084 (citations omitted).

78

Rosenberger, 515 U.S. at 828 (citing Police Dep’t of Chicago v. Mosley, 408 U.S. 92,

96 (1972)).

79

Morse, 551 U.S. at 394 (reiterating that student-speech claims must be considered

“‘in light of the special characteristics of the school environment” (quoting Tinker, 393 U.S. at

506).

80

See Good News Club, 533 U.S. at 113 (invalidating school’s restriction on an outside

religious group’s use of a school’s multipurpose facility after school hours); Rosenberger, 515

U.S. at 830 (holding that university could not withhold student activities funds from an

extracurricular student group simply because of the religious nature of its speech); Lamb’s

Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 393 (1993) (invalidating school

district’s restriction on a religious group’s use of school facilities during times they were not

being used for school purposes); Bd. of Educ. of Westside Cmty. Sch. (Dist. 66) v. Mergens, 496

U.S. 226, 250–51 (1990) (same); Widmar v. Vincent, 454 U.S. 263, 273–75 (1981) (holding that

a university that “opened its facilities for use by student groups” could not then discriminate

against a particular group because of its religious purpose).

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Not only is there no categorical ban on viewpoint discrimination in public

schools, our sister circuits have divided over the question.81 Indeed, as we have

previously recognized, “[a] split exists among the Circuits on the question of

whether Hazelwood requires viewpoint neutrality” in public schools.82 Some of

the courts to have allowed viewpoint discrimination have done so precisely

because the speech at issue was religious. For instance, in Curry ex rel. Curry

v. Hensiner,83 the Sixth Circuit upheld a school’s restriction on a student seeking

to distribute a candy-cane message, nearly identical to the one in this case, as

part of an organized school activity. The court held that “[t]he school’s desire to

avoid having its curricular event offend other children or their parents, and to

avoid subjecting young children to an unsolicited religious promotional message

that might conflict with what they are taught at home qualifies as a valid

educational purpose.”84

81

The plaintiffs have argued that the defendants waived the argument that the law

was not clearly established in light of this circuit split. We reject this argument because the

plaintiffs briefed cases arising from this Hazelwood-based circuit split at every phase of this

proceeding: at the district court, before the panel, and now before the en banc Court. Even if

they had not, the Supreme Court has held that “When an issue or claim is properly before the

court, the court is not limited to the particular legal theories advanced by the parties, but

rather retains the independent power to identify and apply the proper construction of

governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991).

82

Chiras v. Miller, 432 F.3d 606, 615 (5th Cir. 2005); see also 2 RODNEY A. SMOLLA,

SMOLLA & NIMMER ON FREEDOM OF SPEECH, § 7:14.50 (Westlaw current through March 2011)

(“There is a division among courts as to whether the . . . deferential First Amendment

standard articulated in Hazelwood is nonetheless trumped and displaced by the First

Amendment norm heavily disfavoring viewpoint discrimination.”). Compare, e.g., Fleming,

298 F.3d at 928 (“Hazelwood does not require educators’ restrictions on school-sponsored

speech to be viewpoint neutral.”), and Ward v. Hickey, 996 F.2d 448, 454 (1st Cir.1993) (“[T]he

Court in [Hazelwood] did not require that school regulation of school-sponsored speech to be

viewpoint neutral.”), with Searcey v. Harris, 888 F.2d 1314, 1319 n. 7 (11th Cir.1989) (“[T]here

is no indication that the [Hazelwood] Court intended to drastically rewrite First Amendment

law to allow a school official to discriminate based on a speaker’s views.”).

83

513 F.3d 570 (6th Cir. 2008)

84

Id. at 579 (citing Edwards v. Aguillard, 482 U.S. 578, 584 (1987)).

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Another of these cases is practically on all fours with the Jonathan Morgan

incident before us today. In Walz v. Egg Harbor Township Board of Education,85

the Third Circuit upheld an elementary school’s restriction on religious

gifts—including pencils inscribed “Jesus ! the Little Children” and a version of

the same candy-cane message at issue in this case—at seasonal classroom

parties. Other students were allowed to distribute their generic seasonal gifts.

The Third Circuit reasoned that the student’s attempts to distribute the

religious pencils were not an attempt at “personal religious observance,” but

rather an attempt to promote a specific message.86 The court held that the

school’s efforts to prevent “advocacy” in classroom activities—religious, political,

or commercial—was a legitimate educational purpose, given elementary-school

students’ impressionability.87

D

Establishment Clause concerns add still another layer of complexity to our

legal analysis in this case. Despite widespread judicial recognition of the law in

this area as the “the thorniest of constitutional thickets,”88 the plaintiffs insist

that the defendants’ Establishment Clause argument is a “red herring” that

“borders on frivolous.” They argue that school officials’ obligations under the

Establishment Clause are perfectly clear: to be neutral toward religion at all

times. But they neglect that the Supreme Court has explicitly left open

“whether a State’s interest in avoiding an Establishment Clause violation” can

ever justify viewpoint discrimination.89

85

342 F.3d 271 (3d Cir. 2003).

86

Id. at 280.

87

Id. at 277.

88

Peck v. Baldwinsville Cent., 426 F.3d at 620.

89

Good News Club, 533 U.S. at 113 (citing Lamb’s Chapel, 508 U.S. at 394–95).

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Further complicating the law in this area is that other courts have held

that the Establishment Clause requires educators to prohibit the distribution of

religious materials in public elementary schools.90 For instance, the Fourth

Circuit, in Peck v. Upshur County Board of Education, considered a school

board’s neutral policy allowing for the distribution of Bibles in public schools

during the school day. The board took great pains to avoid the appearance that

it was endorsing religion. As the court described,

The table displays are set up and stocked entirely by private citizens

who are not affiliated in any way with the schools, and the tables

bear signs informing students only that they should feel free to take

the Bibles or other material offered. Pursuant to district court

injunction, the tables also bear a disclaimer, renouncing any

sponsorship or endorsement by the school. No one is allowed to

enter classrooms to announce the availability of the religious or

political material, or to stand at the tables to encourage or pressure

students to take the material. No school announcement or assembly

is allowed to mark the availability of the Bibles or any other

religious or political material. School principals are charged with

ensuring strict compliance with these guidelines.91

Despite these efforts to avoid endorsement, the Fourth Circuit held the district’s

policy unconstitutional “to the extent that it allows the display of Bibles and

other religious material in the elementary schools of the County.”92 The court

cited concern that “children of these ages may be unable to fully recognize and

appreciate the difference between government and private speech—a difference

that lies at the heart of the neutrality principle—the County’s policy could more

easily be (mis)perceived as endorsement rather than as neutrality.”93

90

Peck v. Upshur Cnty. Bd. of Educ., 155 F.3d 274, 288 n* (4th Cir. 1998).

91

Id. at 275–76.

92

Id. at 288 n.* (emphasis added).

93

Id.

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Other circuits have recognized the risk that elementary students may

misperceive neutrality toward religious speech as endorsement. For instance,

in Walz, the Third Circuit noted that “in an elementary school classroom, the

line between school-endorsed speech and merely allowable speech is blurred.”94

In a high-school classroom, by contrast, “students are mature enough and are

likely to understand that a school does not endorse speech that it merely permits

on a nondiscriminatory basis.”95

The plaintiffs insist that these Establishment Clause concerns are

unfounded in light of the Supreme Court’s decision in Good News Club v. Milford

Central School.96 At argument, they asserted that Peck “does not survive Good

News Club” because the Supreme Court in Good News Club “rejected the idea

that elementary students are different.” They are mistaken. Instead, in Good

News Club, the Supreme Court reiterated previous precedents assigning

“significance . . . in the Establishment Clause context to the suggestion that

elementary school children are more impressionable than adults,”97 at least

when the school can actually be said to be advancing religion. However, the

Court held that cases recognizing the impressionability of the youngest children

do not go so far as to “foreclose private religious conduct during nonschool hours

merely because it takes place on school premises where elementary school

children may be present.”98 In other words, in Good News Club, the Court

declined to consider the students’ impressionability in light of the facts at hand,

94

Walz, 342 F.3d at 277 (citing Edwards, 482 U.S. 578).

95

Id.

96

533 U.S. 98, 117–18 (2001).

97

Good News Club, 533 U.S. at 115 (citing Sch. Dist. of Grand Rapids v. Ball, 473 U.S.

373, 390 (1985)).

98

Id.

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where “individuals who [we]re not schoolteachers [we]re giving lessons after

school to children permitted to attend only with parental consent.”99 This is a

far cry from “rejecting the idea that elementary students are different.”100

E

The principals are entitled to immunity because the general state of the

law in this area is abstruse, complicated, and subject to great debate among

jurists. At the time of the incidents in question, neither a single “controlling

authority” nor a “robust consensus of persuasive authority” had held that the

First Amendment prohibits school principals from restricting the distribution of

written religious materials in public elementary schools.101 Nor had a single

federal court of appeals definitively held that Tinker-based speech rights inhere

in public elementary schools, let alone defined the scope of those rights with a

high degree of particularity. The generalized prohibition against viewpoint

discrimination is far too abstract to clearly establish the law in this case, and the

circuits are divided over its application in public elementary schools. The speech

rights asserted in this case cannot be said to be “clearly established” when

99

Id.

100

Neither did the Supreme Court “reject the idea that elementary students are

different” in Mergens. The plaintiffs and their amici have repeatedly quoted Justice

O’Connor’s statement, for the plurality, that “[t]he proposition that schools do not endorse

everything they fail to censor is not complicated.” Mergens, 496 U.S. at 250–51 (plurality).

However, in quoting this language out of context, they ignore that the plurality opinion in

Mergens was plainly limited to high-school students. Indeed, the Supreme Court in Mergens

held only “that secondary school students are mature enough and are likely to understand that

a school does not endorse or support student speech that it merely permits on a

nondiscriminatory basis.” Id. at 250.

101

The plaintiffs highlight a Seventh Circuit case invalidating a restriction on a middle-

school student’s distribution of written religious materials. See Hedges v. Wauconda Cmty.

Unit Sch. Dist. No. 118, 9 F.3d 1295, 1297 (7th Cir. 1993) (invalidating a district policy

forbidding distribution of religious material “[a]t the elementary and junior high school”).

However, even if this case established a right to distribute such materials in elementary

schools, this is far from the “robust consensus of persuasive authority” needed to clearly

establish the law.

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balanced against competing Establishment Clause concerns that inhere in public

elementary schools.

(1)

Factually analogous precedent failed to prohibit Principal Swanson’s

conduct (restricting the distribution of religious materials at a classroom party),

as did the general bodies of law discussed above. Her case is unique among our

qualified-immunity cases because, in addition to no law prohibiting her conduct,

one of our sister circuits had explicitly sanctioned almost identical conduct.

Swanson had been advised of this precedent—the Third Circuit’s decision in

Walz—before acting, as even the plaintiffs’ complaint acknowledges.

Walz could hardly be more damaging to the plaintiffs’ case against

immunity, so they make a number of attempts to distinguish it. First, they

argue that the gifts in Walz were not distributed between students, but rather

through the parent-teacher organization (PTO). This is a plain misreading of

the opinion, which indicates that Daniel Walz sought to distribute his gifts

directly to his classmates.102 Second, the plaintiffs argue that Walz was not a

viewpoint-discrimination case. This argument also fails. It is true that the

school policy in Walz prohibited students from distributing messages of a

“commercial, political, or religious” nature. But the fact that the school in Walz

discriminated against several viewpoints is a distinction without a difference.

The plaintiffs’ entire viewpoint-discrimination theory is that it is always

unconstitutional to permit secular or generic seasonal gifts but to prohibit

religious ones. It does not save this theory to point out that the policy in Walz

permitted secular or generic seasonal gifts but prohibited religious, political, and

102

See Walz, 342 F.3d at 273 (“At this particular party, Daniel brought his gifts directly

to class where he distributed [the religious] pencils to his classmates.” (emphasis added)); id.

(noting that at the second party, “Daniel sought to distribute candy canes to his classmates.”

(emphasis added)).

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commercial ones.103 Our analysis would be no different if PISD had restricted

both religious and political seasonal expressions by restricting Jonathan’s

“Legend of the Candy Cane” pens and another student’s “Stop the war this

winter” pencils.

The plaintiffs’ third attempt to distinguish Walz is that Daniel Walz was

allowed to distribute his candy-cane story in an alternative location: “in the

school hallway after class or at recess.”104 This fact both fails to distinguish Walz

and proves far too much. First, Principal Swanson here repeatedly offered an

alternative location at which Jonathan could distribute “The Legend of the

Candy Cane.” Second, this attempt to distinguish Walz proves too much,

because the Third Circuit held that the offering of an alternative forum for

religious messages was “more than reasonable and perhaps even unnecessary”

for First Amendment purposes.105

103

We take no position on the substantive correctness of the Third Circuit’s holding in

Walz, that it is a constitutionally legitimate goal to prevent “advocacy” in the elementary-

school environment. We highlight Walz instead as a precedent on which Swanson was entitled

to rely, for qualified-immunity purposes.

104

Id. at 280.

105

Id. (emphasis added) (citation omitted).

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(2)

Defendant Bomchill is also entitled to immunity. We begin our discussion

of Principal Bomchill’s immunity with the after-school incident. As we discuss

in the next Part, we ultimately conclude that Principal Bomchill violated

Stephanie Versher’s First Amendment rights when she restricted her from

distributing “Jesus” pencils outside of school hours to a small group of students

who specifically requested them. We are sensitive to the outrage and concern

the plaintiffs and various amici feel over this after-school incident, which

involved the distribution of a small number of religious items among willing

friends, outside of school hours. But our qualified-immunity inquiry does not

ask what we think of a defendant’s conduct as a normative matter.106 Rather,

qualified immunity is a dispassionate inquiry that asks us only to identify the

state of the law as a descriptive matter.

Bomchill is entitled to immunity for this after-school incident because no

law gave fair notice that elementary educators may not restrict the distribution

of written religious materials to elementary students on the school lawn, after

school. As we discuss in the next Part, Stephanie’s after-school speech looks far

more like the private speech contemplated in Tinker than the school-sponsored

speech discussed in Hazelwood. But we cannot ignore that Tinker’s applicability

in elementary schools has never been clearly established, and has indeed been

questioned by multiple federal courts of appeals.

Neither can we ignore the Fourth Circuit’s decision in Peck, which forbade

the distribution of religious materials in elementary schools on Establishment

106

Further, we think it fitting to withhold some judgment of Bomchill’s conduct until

a developed record reveals more about the circumstances. Principals like Bomchill often have

to make on-the-spot constitutional determinations in the face of litigious parents already

determined to sue. Amici educators remind us that parents across the nation have thusly

sought to engineer “gotcha” moments for use as fodder for litigation and media campaigns.

Only a more developed fact record will reveal if that was the case here.

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Clause grounds. Peck shares many similarities with Stephanie’s after-school

incident. For instance, like the group distributing Bibles in Peck, Stephanie

distributed her “Jesus” pencils only to students who specifically requested them.

And just as the Bible distributors in Peck were prohibited from “encourag[ing]

or pressur[ing] students to take the material,”107 Stephanie alleges that she only

distributed her pencils to students who specifically sought to receive them.

Despite strong evidence that the speech in question was not the school’s, the

Fourth Circuit held that allowing distribution of religious items in public

elementary schools violates the Establishment Clause in all instances. Principal

Bomchill is entitled to immunity in light of this pronouncement.

Principal Bomchill is entitled to immunity for the two remaining

incidents—the half-birthday incident and the passion-play-ticket incident—for

largely the same reasons. The complaint omits important facts necessary to

classify the speech in either incident, as we discuss in the next Part. But even

despite important missing details, we are able to conclude that Bomchill is

entitled to immunity for these incidents because Tinker’s applicability in

elementary schools has never been clearly established, and Establishment

Clause concerns rendered the law in this area unclear.

107

Peck, 155 F.3d at 275–76.

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V

At the 12(b)(6) stage, to hold that the defendant violated the law at step

one of the qualified-immunity analysis means is simply to say that the plaintiff

has stated a claim upon which relief may be granted.108 Defendant Bomchill’s

conduct in conjunction with the after-school incident, as pleaded in the

complaint and in the light most favorable to the plaintiffs, violated Stephanie

Versher’s First Amendment rights. The Court should decline for the time being

to pass on the constitutionality of the remaining incidents.

A

Because we have granted immunity to the principals at step two of the

qualified-immunity analysis, it is within our discretion to decline entirely to

address the constitutionality of the defendants’ conduct. This flexibility was not

ever thus. Indeed, until recently the Supreme Court required us in every case

to address the underlying constitutional claim, so as to promote “the law’s

elaboration from case to case.”109 Then, in Pearson v. Callahan, the Court

retreated from this “rigid order of battle,” granting lower courts discretion over

the order of the analysis and making step one optional when immunity is

required at step two.110 However, the Pearson Court cautioned that while “the

108

See Pearson, 129 S. Ct. at 815–16 (describing step one of the qualified-immunity

procedure as deciding “whether the facts that a plaintiff has alleged [under Rule 12(b)(6)] or

shown [under Rule 50 or 56] make out a violation of a constitutional right”). Throughout this

appeal, the defendants have vigorously contested the plaintiffs’ version of the facts. The

district court will likely confront these same issues again when it addresses the plaintiffs’

claims against PISD. We caution the district court that our ruling today does not preclude a

different result on summary judgment or at trial, after the parties have had an opportunity

to develop the record through discovery.

109

Saucier v. Katz, 533 U.S. 194, 201 (2001).

110

Pearson v. Callahan, 129 S. Ct. 808, 817–18 (2009).

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Saucier protocol should not be regarded as mandatory in all cases, . . . it is often

beneficial.”111

The Supreme Court in Pearson outlined a number of situations where

federal courts might wish to skip step one of the qualified-immunity analysis.

These include: (1) “cases in which the constitutional question is so factbound

that the decision provides little guidance for future cases”; (2) “when it appears

that the question will soon be decided by a higher court”; (3) “[a] constitutional

decision resting on an uncertain interpretation of state law”; (4) “[w]hen

qualified immunity is asserted at the pleading stage,” and “the precise factual

basis for the plaintiff's claim or claims [is] hard to identify”; and (5)

“circumstances in which the first step of the Saucier procedure may create a risk

of bad decisionmaking.”112

Recent decisions suggest that the Supreme Court continues in its retreat

from the old Saucier two-step analysis. In Camreta v. Greene, using stronger

language than before, the Court clarified that lower courts “should address only

the immunity question” in the circumstances outlined in Pearson.113 The

Camreta Court further cautioned that lower courts should “think hard, and then

think hard again” before unnecessarily deciding the merits of a constitutional

issue, and thus risk “turning small cases into large ones.”114 Then, only days

later, in Ashcroft v. Al-Kidd, the Court cautioned that we should “think carefully

before expending ‘scarce judicial resources’ to resolve difficult and novel

111

Id. at 818.

112

Id. at 819–820.

113

131 S. Ct. 2020, 2032 (2011) (emphasis added).

114

Id.

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questions of constitutional or statutory interpretation that will ‘have no effect

on the outcome of the case.’”115

We have “thought carefully” about whether to address the merits of

constitutional issues before us today. We conclude that clarifying some of the

law’s uncertainties would be useful to the district court’s conduct of the rest of

this case—which includes official-capacity claims against the defendants and an

as-applied challenge to the school’s speech policy. But we are also mindful that

this appeal arises at the pleading phase. Deciding whether some of the incidents

in question violated the plaintiffs’ rights “depend[s] on a kaleidoscope of facts not

yet fully developed,”116 a situation described in Pearson as warranting avoidance

of qualified immunity step one. Thus, we exercise our discretion to address the

constitutionality of only one of the incidents in question.

B

As a preliminary matter, because it has been unclear, it should be clarified

today that the student-speech rights announced in Tinker inhere in the

elementary-school context. It is difficult to identify a constitutional justification

for cabining the First Amendment protections announced in Tinker to older

students. This view finds support in other areas of First Amendment law. For

instance, the Supreme Court has long recognized elementary students’ freedom

of conscience in the First Amendment context. Indeed, in West Virginia Board

of Education v. Barnette, which involved elementary-aged plaintiffs, the Court

recognized that the government may not compel particular speech from citizens,

school children or otherwise.117 The plaintiffs in Barnette were elementary-

115

Al-Kidd, 131 S. Ct. at 2080 (quoting Pearson, 555 U.S. at 236–37).

116

Pearson, 129 S. Ct. at 819 (citing Dirrane v. Brookline Police Dep’t, 315 F.3d 65,

69–70 (1st Cir. 2002).

117

319 U.S. 624 (1943). The plaintiffs throughout this case argued that Barnette itself

established the affirmative speech rights of public-school students, but the Supreme Court

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school students. A recent Supreme Court decision also recognized the First

Amendment rights of the youngest Americans—outside of the school

environment—in invalidating a California ban on the sale of violent video games

to minors.118

In affirming that Tinker-based speech rights apply to elementary students,

we must be mindful of a long-established countervailing principle: in public

schools, the “speech appropriate for eighteen-year-old high school students is not

necessarily acceptable for seven-year-old grammar school students.”119 Indeed,

“common sense” dictates that “a 7–year–old is not a 13–year–old[,] and neither

is an adult.”120 In other words, to extend Tinker’s protections to public

elementary schools is not necessarily to hold that the speech rights of

elementary students are coextensive with those of older students. As the Third

Circuit has recognized, the Tinker framework is a flexible, “case-by-case”

approach that is capable of accommodating the concern “[t]hat elementary

students require a greater degree of control, or a different kind of control.”121

Tinker protects private student expression where there is no “interference,

actual or nascent, with the schools’ work or collision with the rights of other

students to be secure and to be let alone.”122 Courts’ analysis of the “work of the

itself has not subsequently construed Barnette as such. See, e.g., Rumsfeld v. Forum for

Academic and Institutional Rights, Inc., 547 U.S. 47, 61 (2006) (“Some of this Court’s leading

First Amendment precedents have established the principle that freedom of speech prohibits

the government from telling people what they must say.” (citing Barnette, 319 U.S. at 642);

Johanns v. Livestock Marketing Ass’n, 544 U.S. 550, 557 (2005) (“We first invalidated an

outright compulsion of speech in West Virginia Bd. of Ed. v. Barnette.”).

118

Brown, 131 S. Ct. at 2741.

119

Walker-Serrano, 325 F.3d at 416–17.

120

J.D.B. v. North Carolina, 131 S. Ct. 2394, 2407 (2011).

121

Walker-Serrano, 325 F.3d at 417.

122

393 U.S. at 508.

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schools” and the “rights of other students” can and may often look different in

the elementary-school context. The Texas Elementary School Principals

Association reminds us that the “work” of public elementary schools is in many

ways broader than that of public high schools. High school students obviously

already have a grasp on the most basic social and behavioral tasks, like “going

to the restroom alone.” By contrast, these amici remind us, the youngest

elementary students “cannot easily discern fact from fiction, nor can they easily

process serious political, religious, and social issues on their own.” It follows,

then, that some speech might be “materially and substantially disruptive” to the

work of a public elementary school, but not to a public high school.

Further, an analysis of whether student speech infringes on the rights of

others, including “the right to be let alone,” may also look different in the

elementary-school context.123 Elementary students are more susceptible to

coercion and peer pressure, while older students are better equipped emotionally

and intellectually to filter the potentially hurtful words of their classmates or

walk away from speech that bothers or offends them. But there is no reason that

the Tinker framework cannot accommodate this concern.

It is also true that the exceptions to Tinker’s general rule, as announced

in Hazelwood, Fraser, and Morse, might also look different in an elementary-

school context. For example, Hazelwood applies to speech that “students . . .

123

As the Seventh Circuit has recognized,

[i]n a public forum, the Christian can tell the Jew he is going to hell, or the Jew

can tell the Christian he is not one of God’s chosen, no matter how that may

hurt. But it makes no sense to say that the overly zealous Christian or Jewish

child in an elementary school can say the same thing to his classmate, no

matter the impact. Racist and other hateful views can be expressed in a public

forum. But an elementary school under its custodial responsibilities may

restrict such speech that could crush child’s sense of self-worth.

Muller, 98 F.3d at 1539–40.

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might reasonably perceive to bear the imprimatur of the school.”124 This

“imprimatur of the school” inquiry may vary based on the age of the students

involved, just as it does in the Establishment Clause context. Indeed, courts

have recognized that, “in an elementary school classroom, the line between

school-endorsed speech and merely allowable speech is blurred.”125 Similarly,

the threshold for what constitutes suggestive or lewd speech, as discussed in

Fraser, might be lower in an elementary-school setting. The case before us today

does not call on us to resolve these questions. They are noted here simply as a

potential way of accommodating the well-established concern that the

boundaries of appropriate speech may look markedly different in elementary

schools than in middle or high schools.

C

Having determined that Tinker applies in elementary schools, we must

also conclude that Principal Bomchill violated Stephanie Versher’s First

Amendment rights in connection with the after-school incident. On the facts

alleged in the complaint, this incident involves private speech governed by

Tinker, not school-sponsored speech under Hazelwood. A reasonable person

would not have believed that Stephanie Vesher’s act of handing pencils to a

select few recipients after school bore the imprimatur of the school. Indeed, the

complaint alleges that Stephanie distributed her pencils only to a “small group

of her classmates,” and, even then, she distributed them only to students who

specifically asked her for one. The speech occurred after school hours, “on the

lawn and sidewalk.” There is no indication that students were engaged in any

sort of structured activity at the time of the distribution, nor that the students

were under the supervision of teachers, either of which might lend an

124

484 U.S. at 271.

125

Walz, 342 F.3d at 277 (citing Edwards, 482 U.S. 578).

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appearance of imprimatur. Nor is there any indication that Stephanie

distributed her materials to a captive audience of students who were not free to

reject her speech.

Given that Tinker governs this after-school incident, Principal Bomchill’s

actions, as pleaded in the complaint, were unconstitutional. There is no

indication that Stephanie’s distribution of a few pencils to her good friends

interfered with the “work of the school” or infringed on the rights of other

students. For instance, there is no indication that Stephanie interfered with the

conduct of the carpool or bus lines, nor that the “Jesus loves me” message on her

pencils caused a spillover disruption into other parts of the school. The

defendants do not argue that Stephanie’s pencils were age-inappropriate, nor do

they suggest that her distributing them infringed on the rights of other students.

To the contrary, Stephanie was careful to allege that she distributed pencils only

to students who wanted them.

Important to the conclusion that Principal Bomchill acted

unconstitutionally is the fact that she allegedly restricted Stephanie’s “Jesus”

pencils solely because of their message. From this pleaded fact, it can only be

inferred that Stephanie would have been allowed to distribute her pencils if they

had born a secular message. Tinker, when it applies, cannot countenance such

a restriction on private student speech. In other words, a school cannot allow

one student to distribute “Jesus” pencils on the school bus but forbid another

from distributing “Mohammed” pencils; nor could it allow one student to

distribute copies of the Democratic party platform but forbid his classmate from

disseminating its Republican analog. That said, it must be clarified that we do

not hold that public elementary schools must always allow students to

disseminate written materials, so long as the distribution occurs outside of a

“school-sponsored” activity. For example, this opinion does not reach a

hypothetical rule forbidding students from sharing gifts or invitations with only

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a select few students, so as to avoid unfairness or hurt feelings. Rather, it holds

simply that, where Tinker applies in public elementary schools, a school may not

allow some speech on a given topic but not others, based solely on the content of

its message.

D

We decline, for now, to pass on the constitutionality of the remaining

incidents. The Supreme Court recently cautioned that, at the pleading stage,

where “the precise factual basis for the plaintiff’s claim or claims [is] hard to

identify,” we “should address only the immunity question.”126 We think the

remaining three incidents in this case—the passion-play-ticket incident, the

half-birthday party, and the winter-break party—fall squarely within this

admonition.

The two remaining allegations against Principal Bomchill are that she

restricted Stephanie Versher from distributing passion-play tickets while at

school and restricted her from distributing “Jesus” pencils at her half-birthday

party. Whether these actions violated Stephanie’s rights “depend[s] on a

kaleidoscope of facts not yet fully developed.” Specifically, the complaint omits

a number of facts that are essential to the determination of whether Tinker or

Hazelwood governs. With respect to the passion-play tickets, we cannot

determine whether the speech could reasonably have been understood to bear

the school’s imprimatur because we do not know when, where, or how widely

Stephanie distributed them; nor whether she distributed them during events

conducted pursuant to official guidelines; nor whether she distributed them

under the supervision of faculty; nor whether she “approached” other students

to discuss the crucifixion while they were a captive audience.127 Likewise, it is

126

Camreta, 131 S. Ct. at 2032.

127

These are the factors courts consider when determining whether to apply

Hazelwood. See supra nn.56–60 and accompanying text. The Vershers attempt to plead away

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difficult to determine whether Stephanie’s half-birthday party was “school-

sponsored” event under Hazelwood because we do not know whether the party

occurred pursuant to specific guidelines; nor whether it was designed to impart

specific knowledge or skills; nor how many students attended; nor whether

teachers were present and supervising. Given the complaint’s reticence as to the

specific details of these events, we decline to “resolve the difficult and novel

questions of constitutional . . . interpretation” they present.128

The remaining allegation is that Principal Swanson restricted Jonathan

Morgan from distributing “The Legend of the Candy Cane” at a 2003 winter-

break party. We decline, for the time being, to pass on the issue, which depends

on a number of undeveloped facts. As a preliminary matter, we are able to

conclude fairly easily that the deferential Hazelwood standard governs this

incident. As the district’s attorneys advised the Morgans, the winter-break

parties have a “clearly defined curricular purpose to teach social skills and

respect for others in a festive setting,” and the parties are “highly structured,

supervised, and regulated.” Indeed, the parties are conducted in accordance

with specific written guidelines that stress uniformity across the grade level.

Thus, we have little trouble concluding that the winter-break parties were

“school-sponsored” activities and that Hazelwood is the proper governing

standard.

Having concluded that Hazelwood applies, our next task is to consider

whether the school’s restriction of Jonathan’s speech was “reasonably related to

legitimate pedagogical concerns.” Resolution of this question would benefit

greatly from a more developed factual record, and we need not decide it now; this

Hazelwood by alleging that Stephanie distributed her tickets only “during non-curriculum

times,” but this conclusory allegation is not entitled to the presumption of truth. See supra

n.47.

128

Al-Kidd, 131 S. Ct. at 2080 (quoting Pearson, 555 U.S. at 236–37).

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issue will arise again when the district court addresses the plaintiffs’ claims

against the school district. Consideration of this question would benefit greatly

from the testimony of school officials and argument from the district. If they

wish, the plaintiffs at that time may present testimony from their own experts,

argue that the school’s pedagogical concerns were not “legitimate,” or to argue

that the restrictions involved were not “reasonably related” to those goals. Given

that Swanson is entitled to immunity, we think it best to leave this inquiry,

which involves questions of both fact and law, for summary judgment.

CONCLUSION

The defendants in this case are entitled to qualified immunity because

existing precedent failed to place the constitutionality of their conduct “beyond

debate.” Like other educators to have contended with religious speech in public

schools, Swanson and Bomchill had to make on-the-ground decisions balancing

constitutional imperatives from three areas of First Amendment jurisprudence:

the Supreme Court’s school-speech precedents, the general prohibition on

viewpoint discrimination, and the murky waters of the Establishment Clause.

The law tasked them with maintaining the most delicate of constitutional

balances: between students’ free-speech rights and the Establishment Clause

imperative to avoid endorsing religion. But it failed to provide any real, specific

guidance on how to do so. Moreover, almost all of the federal courts of appeals

to have to considered speech restrictions in this area have found no

constitutional violation in the first instance, including one case with facts nearly

identical to those now before us. And no federal court of appeals has ever denied

qualified immunity to an educator in this area. We decline the plaintiffs’ request

to become the first.

In short, for the reasons stated in Part IV of this opinion, we REVERSE

the judgment of the district court and REMAND with an instruction to dismiss

the plaintiffs’ claims as to Swanson and Bomchill in their individual capacities.

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EDITH H. JONES, Chief Judge, together with Judges JOLLY and

SOUTHWICK specially concurring:

I fully agree with Judge Elrod’s passionate defense of the centrality of free

speech for school children and the axiomatic prohibition of viewpoint

discrimination. But I lament that, as Judge Benavides’s opinion shows, many

other courts have simply not seen the issues that way in somewhat analogous

cases to the one before us.1 I regretfully vote to reverse the denial of qualified

immunity to these principals.

Doing so, however, makes no sense unless the en banc court attempts to

state the law correctly and prevent school officials in the future from censoring

private speech by students simply because it is religious. I vote to adopt

Parts III A, C and D of Judge Elrod’s analysis showing that the actions of these

principals violated the students’ freedom to communicate with their peers in

each of the four instances before us. These instances do not fall within

Hazlewood, as Judge Elrod demonstrates. Our firm statement of the principles

supporting the children’s free speech in these instances is important to clarify

the law of the Fifth Circuit.

1

It must be emphasized that Judge Benavides’s opinion thoroughly describes the case

law creating uncertainty that supports the principals’ immunity, but this is not an

endorsement of any of those cases. In particular, I cannot understand the contention that

viewpoint discrimination may be uniquely permissible in public schools against student

religious speech, nor are expressed Establishment Clause concerns even plausible here. Citing

Hazlewood to justify the censorship of religious candy canes at winter break parties is plainly

hostile not only to the students’ religious beliefs but to the Judeo-Christian tradition that is

the only reason we ever had winter break parties to begin with. I disagree with other courts

that have expanded these theories without any basis.

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KING, Circuit Judge, with whom DAVIS, Circuit Judge, joins, specially

concurring:

I concur in Judge Benavides’s opinion granting qualified immunity to

Principals Bomchill and Swanson. I do not join Part V A-C of that opinion. Nor

have I joined the opinions of Judge Elrod and others deciding that the complaint

states a claim for the violation by Principals Bomchill and Swanson of the First

Amendment rights of the students involved here. The latter question need not

have been decided now, and I think the ultimate resolution of that question

would have benefitted from further factual development. The opinions of Judge

Elrod and others, together with various briefs, have characterized the speech

involved here as private, non-disruptive, student-to-student speech, analogizing

it to a spontaneous student expression of a religious belief. I am not entirely

comfortable that is all that is involved here. The pleadings suggest to me

considerable parent involvement in the events at issue, a possibility that is

reinforced by the detailed opinion of Judge Elrod. Some degree of parent

involvement in those events may be inevitable by reason of the young age of the

children. But it may also be caused in part by the faith of the parents.

Evangelizing is an important obligation in some faiths, and parents who are

adherents to such a faith might well want not only to evangelize appropriately

but also to inculcate that obligation in their children and to teach them how it

is done. An elementary school principal, dealing (at least in part) with parents

who may reasonably be perceived as using the school venue to proselytize,1

might well be concerned about the response of other parents. Perhaps that is not

an issue here, but if it is, it might have better informed the question decided by

the opinions of Judge Elrod and others.

1

Webster defines “proselytize” as “to recruit members for an institution, team, or group

[especially] by the offer of special inducements.” WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 1821 (1993).

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EMILIO M. GARZA, Circuit Judge, specially concurring:

I completely agree with the first paragraph of Chief Judge Jones’s special

concurrence, which concludes that the principals are entitled to qualified

immunity because clearly established law did not put the constitutionality of

their actions beyond debate. Accordingly, I join the first part of her opinion.

However, because we are ruling on a motion to dismiss, I am reluctant to

proceed further and declare as a matter of law, based only on the pleadings, that

these incidents constituted First Amendment violations. As the Supreme Court

has articulated, “[w]hen qualified immunity is asserted at the pleading stage,

the precise factual basis for the plaintiff's claim or claims may be hard to

identify,” and deciding whether a violation has occurred “is an uncomfortable

exercise where . . . the answer [to] whether there was a violation may depend on

a kaleidoscope of facts not yet fully developed.” Pearson v. Callahan, 555 U.S.

223, 238-39 (2009) (internal citations and quotation marks omitted).

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DENNIS, Circuit Judge, specially concurring in Parts I to IV and V.D, but not

joining Part V.A to C or reaching the issue addressed therein:

I concur in Judge Benavides’ opinion, but I do not join Part V.A to C

because I respectfully do not agree that we should reach the issue addressed

therein, and, accordingly, I concur in the judgment only insofar as it grants

defendant-appellants qualified immunity.

I also do not join fully in Part IV.A of Judge Benavides’ opinion because

I disagree with one of its premises in discussing clearly established law.

Specifically, I disagree with the blanket statement that “generalizations and

abstract propositions are not capable of establishing the law.” Judge

Benavides’ Op. 14. In Anderson v. Creighton, 483 U.S. 635, 639 (1987), the

Supreme Court “appear[ed] to require a relatively high degree of specificity

before a rule can be called ‘clearly established.’” Schneyder v. Smith,

— F.3d —, 2011 WL 3211504, at *11 (3d Cir. July 29, 2011) (citing Anderson,

483 U.S. at 640). However, the Court was also “at pains to emphasize that

‘[t]his is not to say that an official action is protected by qualified immunity

unless the very action in question has previously been held unlawful, but it is

to say that in the light of preexisting law the unlawfulness must be

apparent.’” Id. at *11 (quoting Anderson, 483 U.S. at 640) (citation omitted).

“The Court further expounded this principle in a line of cases beginning

with United States v. Lanier, 520 U.S. 259 (1997).” Schneyder 2011 WL

3211504, at *11. In Lanier, the Supreme Court “held that the defendant was

entitled to ‘fair warning’ that his conduct deprived his victim of a

constitutional right . . . .” Hope v. Pelzer, 536 U.S. 730, 739-40 (2002). In so

doing, the Lanier Court “expressly rejected the requirement that previous

cases be ‘fundamentally similar’” in order to give fair warning. Hope, 536

U.S. at 741. The Court explained:

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[G]eneral statements of the law are not inherently incapable of

giving fair and clear warning, and . . . a general constitutional

rule already identified in the decisional law may apply with

obvious clarity to the specific conduct in question, even though

“the very action in question has [not] previously been held

unlawful.”

Lanier, 520 U.S. at 271 (quoting Anderson, 533 U.S. at 640). Although Lanier

dealt with another statute, 18 U.S.C. § 242,1 the Supreme Court explained

“that the standard for determining the adequacy of that warning was the

same as the standard for determining whether a constitutional right was

‘clearly established’ in civil litigation under [42 U.S.C.] § 1983.” Hope, 536

U.S. at 739-40.

In Hope v. Pelzer, the Supreme Court “granted certiorari to determine

whether the Court of Appeals’ qualified immunity holding comport[ed] with

[its] decision in [Lanier].” Hope, 536 U.S. at 733. The court of appeals in

Hope had “stated that ‘the federal law by which the government official’s

conduct should be evaluated must be preexisting, obvious and mandatory,’

and established, not by ‘abstractions,’ but by cases that are ‘materially

similar’ to the facts in the case in front of us.” Id. at 736 (quoting Hope v.

Pelzer, 240 F.3d 975, 981 (11th Cir. 2001)) (internal quotation marks

omitted). The Supreme Court applied the same reasoning as in Lanier to

reject the court of appeals’ requirement that cases must be “materially

similar” in order to clearly establish a constitutional right:

Although earlier cases involving “fundamentally similar” facts

can provide especially strong support for a conclusion that the

law is clearly established, they are not necessary to such a

finding. The same is true of cases with “materially similar” facts.

Accordingly, pursuant to Lanier, the salient question that the

Court of Appeals ought to have asked is whether the state of the

1

“ Section 242 makes it a crime for a state official to act ‘willfully’ and under color of

law to deprive a person of rights protected by the Constitution.” Hope, 526 U.S. at 739.

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law in 1995 gave respondents fair warning that their alleged

treatment of Hope was unconstitutional.

Id. Thus, Hope makes plain that the correct standard to apply in a clearly

established inquiry is whether the state actor had fair and clear warning that

his actions were unconstitutional.

I do not agree with Judge Benavides’ opinion’s characterization of this

language as merely dicta. Judge Benavides reasons that the Supreme Court

ultimately relied on prior circuit precedent to conclude that the defendants

had violated the plaintiff’s clearly established constitutional rights. Judge

Benavides’ Op. 15. However, the Hope Court reversed the court of appeals

not only because it reached the wrong result on qualified immunity based on

prior circuit precedent, but also because it had wrongly applied the

“materially similar” standard in reaching that result. Indeed, the Court first

held that the fair warning standard from Lanier should be used to evaluate

whether the defendants were entitled to qualified immunity, and then applied

that standard to conclude that they were. See Hope, 536 U.S. at 746 (“The

‘fair and clear warning,’ [Lanier, 520 U.S. at 271,] that these [prior circuit]

cases provided was sufficient to preclude the defense of qualified immunity at

the summary judgment stage.”). Therefore, the Court’s pronouncements on

the fair and clear warning standard were an essential part of its holding in

Hope.

Moreover, in the years since Hope, the Supreme Court has reaffirmed

this principle. For example, the Court recently stated:

To be established clearly . . . there is no need that “the very action

in question [have] previously been held unlawful.” . . . The

unconstitutionality of outrageous conduct obviously will be

unconstitutional, this being the reason, as Judge Posner has said,

that “[t]he easiest cases don’t even arise.” But even as to action

less than an outrage, “officials can still be on notice that their

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conduct violates established law . . . in novel factual

circumstances.”

Safford Unified Sch. Dist. # 1 v. Redding, 557 U.S. –––, 129 S. Ct. 2633, 2643

(2009) (fourth and fifth alterations in original) (quoting Wilson v. Layne, 526

U.S. 603, 615 (1999); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th

Cir. 1990); Hope, 536 U.S. at 741); see also Brosseau v. Haugen, 543 U.S. 194,

199 (2004) (per curiam) (“Graham [v. Connor, 490 U.S. 386 (1989),] and

[Tennessee v. Garner, 471 U.S. 1 (1985)], following the lead of the Fourth

Amendment’s text, are cast at a high level of generality. Of course, in an

obvious case, these standards can ‘clearly establish’ the answer, even without

a body of relevant case law.” (citations omitted) (citing Hope, 536 U.S. at

738)). The Supreme Court’s recent decisions in Camreta v. Greene, 131 S.

Ct. 2020 (2011), and Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), do not

overrule Hope, Lanier, or any case in that line. In fact, the majority in

neither al-Kidd nor Camreta mentions them, and Justice Kennedy’s

concurrence in al-Kidd cites Lanier affirmatively as supporting the “fair and

clear warning” rule. 131 S. Ct. at 2086-87 (Kennedy, J., concurring).

Further, Justice Kennedy’s dissenting opinion in Camreta recognizes the

continuing vitality of Hope: “Our cases make clear, moreover, that ‘officials

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

factual circumstances.’ [Hope, 536 U.S. at 741]. That rule permits clearly

established violations to be found when extreme though unheard-of actions

violate the Constitution. See, e.g., [id.].” 131 S. Ct. at 2044 (Kennedy, J.,

dissenting).

In sum, pursuant to the line of cases described above, I believe that

certain official conduct may so obviously fall within the prohibition of a

general or abstract rule of the Constitution that any reasonable official would

have “fair warning” that his actions are unconstitutional, even absent a prior

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court decision to that effect. However, I agree with Judge Benavides that this

case does not present a situation where the defendants had fair warning that

their actions were unconstitutional, for substantially the reasons given by

Judge Benavides in his opinion. Public school authorities, as state actors,

must abide by the First Amendment. Consequently, they may not adopt any

law or regulation “respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech” insofar as

schoolchildren are concerned. U.S. Const. amend. I. In our pluralistic

society, the First Amendment requires that public school officials take care

not to infringe upon the rights of parents to shape and nurture the religious

beliefs and practices of their very young children and, correspondingly, not to

adopt school regulations or policies that tend to establish a religion. At the

same time, public school officials must also respect the rights of

schoolchildren to the free exercise of religion, and to the freedom of speech.

Because the challenged state actions in this case do not appear to conflict

with any of these First Amendment commands at its core, but to fall in areas

where the commands reasonably appear to be in conflict and thus are in need

of further definition, I agree that the principals and teachers are entitled to

qualified immunity in this case.

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EDWARD C. PRADO, Circuit Judge, partially concurring:

I agree that Tinker and its progeny clearly establish that elementary-

school students enjoy some degree of First Amendment rights at school. This

includes a general, but not unrestricted, right to express personal, religious

views and to be free from viewpoint discrimination. See Tinker v. Des Moines

Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). The Supreme Court was

sweeping in its pronouncement that “First Amendment rights, applied in

light of the special characteristics of the school environment, are available to

teachers and students. It can hardly be argued that either students or

teachers shed their constitutional rights to freedom of speech or expression at

the schoolhouse gate.” Id. at 506. Based on the nature of the restriction in

Tinker, a school policy forbidding students to wear armbands to protest the

Vietnam War, id. at 504, and the Court’s broad language, this declaration

surely encompasses a general prohibition on viewpoint discrimination that

extends to all students. Thus, I join Section III-A of Judge Elrod’s opinion.

Context matters significantly, however, in the intersection of the First

Amendment, elementary education, and qualified immunity. In Hazelwood,

the Supreme Court reaffirmed that the First Amendment “must be ‘applied in

light of the special characteristics of the school environment.’” Hazelwood

Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (quoting Tinker, 393 U.S. at 506).

Particularly, the Court held that schools may exercise greater control over

“activities [that] may fairly be characterized as part of the school curriculum,”

in part because of a concern that “the views of the individual speaker [might

be] erroneously attributed to the school.” Id. at 272. While the Hazelwood

case dealt with a high-school newspaper, the Third Circuit has presciently

noted that when applying the Hazelwood test “[i]n the elementary school

setting, age and context are key.” Walz v. Egg Harbor Twp. Bd. of Educ., 342

F.3d 271, 275 (3d Cir. 2003). The ability of high-school students to express

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opinions about political and social issues, and to distinguish between the

speech of other students and the school, must be considered in contrast to the

abilities of much younger students. Young students may easily confuse

student advocacy in the classroom or during other school-organized activities

for school-endorsed speech. See id. at 277 (noting that “in an elementary

school classroom, the line between school-endorsed speech and merely

allowable speech is blurred, . . . for [ ] young, impressionable students”).

Lacking clearer guidance from the Supreme Court on the application of

Tinker and Hazelwood in the elementary-school context, we should tread

carefully in exposing school officials charged with making sensitive, context-

specific decisions to personal liability.

Nonetheless, the incidents described in the complaint involving

Principal Bomchill’s attempts to restrict Versher’s distribution of (1) religious

materials on the school lawn after school and (2) play tickets outside of class

to students who expressed interest do not reasonably fall into this gray area

where students might have confused Versher’s speech for that of the school,

see Hazelwood, 484 U.S. at 272, or where Versher’s actions might have

interfered with the school’s ability to preserve order or facilitate learning. See

Tinker, 393 U.S. at 514. At this stage of the proceedings, I would therefore

affirm the denial of qualified immunity on these two incidents.1

The other two incidents—involving distribution of religious materials

(1) at a “winter break party” inside the classroom and (2) at a half-birthday

party facilitated by the school—are not so clear-cut. Given the risk of young

students imputing religious speech to the school, and the similarities between

the facts in the latter incident and Walz, Bomchill’s and Swanson’s actions

1

The district court may later find that qualified immunity is warranted on one or both

of these incidents after further factual development in this case.

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were not objectively unreasonable in light of clearly-established law. I would

therefore grant qualified immunity with respect to those incidents.

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PRISCILLA R. OWEN, Circuit Judge, specially concurring:

I join the specially concurring opinion of Chief Judge Jones, except to

the extent that it adopts all of Part III of Judge Elrod’s dissenting opinion. I

cannot agree that the law is well-settled regarding the First Amendment

rights of elementary school children, for the reasons set forth in Judge

Benavides’ opinion. Nor do I agree with the conclusion in Part III(B) of Judge

Elrod’s opinion that the principals have waived the arguments discussed in

that section. However, I agree with much of Part III(A) of Judge Elrod’s

opinion, though I do not join that section of her opinion. I do join Parts III(C)

and III(D) of Judge Elrod’s opinion. I read Part III(D) as addressing the

following question: "Taken in the light most favorable to the party asserting

the injury, do the facts alleged show the officer's conduct violated a

constitutional right?"1

I also join in Parts II, III, and IV of Judge Benavides’ opinion.

1

Saucier v. Katz, 533 U.S. 194, 201 (2001).

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JENNIFER WALKER ELROD, Circuit Judge, writing for the majority with

respect to Sections III.A, III.C, and III.D, and dissenting in remaining part:**

“The vigilant protection of constitutional freedoms is nowhere more vital

than in the community of American schools.” Keyishian v. Bd. of Regents of

Univ. of State of N.Y., 385 U.S. 589, 603 (1967) (quoting Shelton v. Tucker, 364

U.S. 479, 487 (1960)). That schools are “educating the young for citizenship is

reason for scrupulous protection of Constitutional freedoms of the individual, if

we are not to strangle the free mind at its source and teach youth to discount

important principles of our government as mere platitudes.” W. Va. State Bd.

of Educ. v. Barnette, 319 U.S. 624, 637 (1943).

This appeal may only involve two students and two principals in a

suburban school district in Texas, but it concerns conduct that “strikes at the

very heart of the First Amendment”—discrimination against student speech

solely on the basis of religious viewpoint. See Morse v. Frederick, 551 U.S. 393,

423 (2007) (Alito, J., concurring).1 Viewpoint discrimination is a “blatant”

violation of our First Amendment right to free speech, for it censors “particular

views taken by speakers on a subject.” See Rosenberger v. Rector & Visitors of

Univ. of Va., 515 U.S. 819, 829 (1995). At the core of the First Amendment’s

right to free speech is the right of one student to express a religious viewpoint

to another student without fear. We hold that this right—to engage in private,

non-disruptive, student speech—is protected from viewpoint discrimination

under the First Amendment, and that the right extends to elementary-school

**

Judges Smith, DeMoss, Clement, and Haynes join this opinion in full. Chief Judge

Jones and Judges Jolly and Southwick join in Sections III.A, III.C, and III.D. Judge Prado

joins in Sections III.A, III.C, IV.B, and IV.C. Judge Owen joins in Sections III.C and III.D.

1

See also Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 768 (5th Cir. 2007) (deeming

Justice Alito’s opinion controlling).

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students. I would also hold that this right is clearly established under existing

law. Therefore, I would affirm the district court’s denial of the motion to dismiss

because the facts alleged in the complaint do not entitle Principals Bomchill and

Swanson to qualified immunity.

I.

On this interlocutory appeal of a motion to dismiss, we must accept as true

the facts as pleaded in the complaint, view them in the light most favorable to

the students, and draw all reasonable inferences in favor of the students. See

Brown v. Nationsbank Corp., 188 F.3d 579, 585-86 (5th Cir. 1999).

A.

This case involves two principals, Lynn Swanson and Jackie Bomchill,

two students, Stephanie Versher and Jonathan Morgan, and four separate

incidents involving the principals’ censorship of student speech.2 Three of the

incidents involved fifth-grader Stephanie and Principal Bomchill. The fourth

incident involved third-grader Jonathan and Principal Swanson. As to each of

these incidents, the complaint alleges that the principals acted not only

pursuant to a written policy, but also pursuant to unwritten “customs” and

“practices,” which treated religious viewpoints differently from all other

viewpoints, when they discriminated against religious viewpoints in favor of

non-religious ones.

Incident One

At all relevant times, Stephanie was enrolled in the fifth grade at Rasor

Elementary School, part of the Plano Independent School District (Plano ISD)

2

The complaint also alleges that the principals censored parent speech, but those

claims were not subject to the motion to dismiss and remain pending before the district court.

In addition, the complaint asserts claims against Plano ISD. A number of these claims,

including an as applied challenge to the 2004 Policy (the relevant policy in this case),

violations of the U.S. Constitution, the Texas Constitution, and the Texas Religious Freedom

Restoration Act (TRFRA), remain pending before the district court.

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in Texas. In January 2004, “while at school but during non-curriculum times

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

Stephanie talked to her friends and classmates about a drama being put on at

a local church. If a student expressed a desire to attend, Stephanie would give

that student a free ticket. After she had given out several tickets, Principal

Bomchill learned of her actions and instructed school officials to prevent

Stephanie from giving out any more tickets and to confiscate any tickets that she

had already given to her classmates. School officials collected and discarded

those tickets. Bomchill notified Stephanie’s mother that the tickets were not

allowed because they expressed a religious viewpoint and later told her that if

Stephanie attempted to share the tickets again on school property, Stephanie

would be “kicked out of school.” No other reason was given.

Incident Two

In the same month, on January 16, 2004, Stephanie wanted to share

brownies and two pencils with her friends in the cafeteria during her half-

birthday party. Plano ISD permits students to celebrate their birthdays with

parties at school. Students with summer birthdays may celebrate their half-

birthdays during the school year with their classmates while at school.

Celebrants often distribute snacks and small gifts to their classmates. In the

past, school officials have permitted students to share a Chinese bookmark with

a printed message on it, a Lion King ring with words and symbols, a bracelet,

and pencils with various words and symbols, including the commercial

statement “Where’s Hippo?” The parties are celebrated during “non-curriculum

times” at school—“primarily at the end of the lunch period or during a snack

break between instructional time.” For her half-birthday party, Stephanie had

brought brownies, along with two pencils, one inscribed with the word “moon”

and another inscribed with the phrase “Jesus loves me this I know for the Bible

tells me so.” Stephanie’s mother unsuccessfully attempted to meet with

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Principal Bomchill prior to the party to discuss the snacks and gifts, so on the

day of the party, Stephanie’s mother took the pencils and brownies to the

school’s office and requested to see Bomchill. As she entered the school’s office,

Stephanie’s mother received a letter accusing her of distributing material to

students on school property and threatening that “law enforcement officials”

would be called to arrest her.3

Bomchill also threatened that, if Stephanie shared any more materials

that expressed a religious viewpoint while on school property, the school would

call the police and Stephanie “would be in trouble.” Bomchill forbade Stephanie

from giving her friends the “Jesus” pencils, but gave her permission to share the

brownies and the “moon” pencils. According to Bomchill, such “religious”

material (i.e., the tickets and “Jesus” pencils) could only be distributed “outside

of the school building.” Stephanie’s mother removed the “Jesus” pencils from the

tie wrapping the brownies and brought the brownies and “moon” pencils to

Stephanie so that she could share them with her friends during her half-

birthday party in the school cafeteria during lunch break. Stephanie asked her

mother what happened to the “Jesus” pencils. Her mother replied that Principal

Bomchill would not allow her to give those pencils to her friends at the party,

and that she could only share those pencils with her friends after school outside

of the building. Her mother gave her the “Jesus” pencils she had removed from

the brownies and instructed her to keep them in her backpack until school was

over.

Incident Three

3

The school’s security guard followed Stephanie’s mother as she was leaving the

school building. As she exited the building, she noticed that two police cars were driving

toward the school. When she drove away, the police followed her and pulled her over. The

officers let her go without incident.

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Later that day, after school hours, outside of the school on the sidewalk

and lawn, Stephanie was talking to some of her friends. As she reached over to

one of her best friends to share one of the “Jesus” pencils, Bomchill saw

Stephanie and grabbed her shoulder. Bomchill confiscated the pencil and

scolded Stephanie. Despite Bomchill’s earlier statement that Stephanie could

share the pencils after school outside of the school building, she told Stephanie

that she could not give out the pencil on school property at all because it

expressed a religious viewpoint. Bomchill then told Stephanie’s mother that if

Stephanie tried to give out these pencils again, she would be “kicked out of

school.”

Incident Four

The remaining incident involved Principal Swanson of Thomas

Elementary School—also in Plano ISD—and one student, third-grader Jonathan

Morgan. Each elementary school classroom in Plano ISD hosts a “winter break”

party at which students, if they so choose, may exchange “goodie bags”

containing gifts. For his upcoming December 2003 “winter break” party,

Jonathan wanted to give his classmates goodie bags containing candy-cane

shaped pens along with a laminated card entitled the “Legend of the Candy

Cane” that explained the Christian origin of candy canes. Each bag would be

individually addressed to a specific classmate with a tag specifying that the gift

was from Jonathan.

Jonathan’s parents, Doug and Robin Morgan, were aware that in the past,

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

had prevented students from including “religious” materials in their goodie bags

for the “winter break” parties. For example, Michaela Wade, another student

at Thomas, wanted to include a pencil inscribed with the phrase “Jesus is the

Reason for the Season” in her goodie bags at a 2001 “winter break” party. School

officials would not allow her to include the pencils in her goodie bags because of

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their religious message, but did permit her classmates to pass out goodie bags

containing gifts inscribed with secular phrases and symbols,4 such as snowmen

and snowflakes.

Given this history, Doug and Robin Morgan decided to meet with Swanson

several weeks before the “winter break” party, in order to determine whether she

would allow Jonathan to share his candy canes in his goodie bag. According to

the complaint, the Morgans discussed with Swanson how

students and parents are being interrogated by school officials at

the “winter break” parties as to whether or not the contents of their

gift or “goodie” bags—which they have brought to school to

distribute to their classmates during the “winter break”

party—contain any religious viewpoint, religious references or

religious message and if the students or their parents acknowledged

that the gift bags do contain religious messages or religious

viewpoint materials, the bags are then confiscated by school officials

and are banned from the classroom and prohibited from being

distributed by the students while they are on school property.

The Morgans also complained to Swanson that students and parents were not

being allowed to bring red and green materials to the “winter break” party, and

that students were not allowed to write “Merry Christmas” on greeting cards to

U.S. soldiers fighting abroad and to retirement homes. Swanson said she would

investigate these claims. Swanson also confirmed that in the past, school

officials had confiscated items deemed “religious” but had permitted “secular”

items and school officials would continue to do so in the future. When asked

about Jonathan’s intended gift, Swanson indicated that he could share the candy

4

Although in modern usage the term “secular” is often used as an antonym for “sacred”

or “religious,” scholars have observed that, originally, the term secular was actually a religious

concept. See generally Steven D. Smith, Constitutional Divide: The Transformative

Significance of the School Prayer Decisions, 38 Pepperdine L. Rev. 945, 973 (2011). Classically,

“secular” was the term used by lay people and ecclesiastics alike “to refer to the here and now

of this world, understood as a specialized area of God’s domain.” Id. (internal quotation marks

omitted). Understood in that way, even medieval governments were secular—that is, they

concerned themselves with the government of this world, and not the next.

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canes with his classmates only if he removed the laminated cards containing the

religious message. Doug Morgan also asked Swanson if he could share the

Legend of the Candy Cane cards with other interested parents present at the

party. Swanson refused his request.

On the day of the party, Jonathan and his father unsuccessfully attempted

to meet with Swanson and then proceeded to Jonathan’s classroom. Jonathan’s

teacher met them at the door and prevented Jonathan from bringing his goodie

bags into the classroom to exchange with his classmates because they contained

“religious” messages. Once Swanson arrived at Jonathan’s classroom and was

apprised of the situation, she immediately informed the Morgans that Jonathan

could place his goodie bags in the school library or he could distribute his goodie

bags on a public sidewalk off of school property. Swanson later announced to

the entire school that students were not allowed to bring any outside materials

into the classrooms. Despite having just observed other outside materials in

Jonathan’s classroom, however, she never required the other students to remove

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

Jonathan’s other classmates were allowed to exchange gift bags inside the

classroom. Swanson only prohibited students from exchanging materials that

contained a “religious” viewpoint. Swanson allowed students to exchange other

materials, and, other than noting the “religious” nature of the materials,

Swanson offered no justification for her censorship of Jonathan’s speech.

B.

This case is before us on an interlocutory appeal of a denial of a motion to

dismiss. The students filed a complaint alleging violations of the First and

Fourteenth Amendments, as well as of Article 1, § 8 of the Texas Constitution.5

5

Specifically, the complaint alleges four federal causes of action under 42 U.S.C.

§ 1983—violations of the First Amendment’s Free Speech, Free Exercise, and Establishment

Clauses, as well as violations of the Fourteenth Amendment’s Equal Protection Clause—and

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The principals filed a motion to dismiss before the district court on qualified

immunity grounds. Recognizing that “for the purposes of this motion to dismiss,

the Court must accept the allegations contained in the [complaint] that

Defendants practiced viewpoint discrimination against Plaintiffs’ religious

speech,” they argued that elementary school students do not have First

Amendment rights. The principals “contend[ed] that the First Amendment free

speech protections do not apply to elementary schools or, alternatively, that, as

a matter of law, elementary schools are permitted to practice viewpoint

discrimination so as to exclude religious messages from elementary schools.”

The magistrate judge rejected the principals’ assertion, noting that it was a

“novel and specious argument that elementary school students have no

constitutional rights in the area of free speech” and recommended that the

district court deny their motion to dismiss—a recommendation that the district

court adopted in full.

After the magistrate judge and the district court dismissed their argument

that “First Amendment free speech protections do not apply to elementary

schools,” the principals appealed to this court. On appeal, the principals urged

the panel to reverse the district court on qualified immunity because, as stated

in their issue presented, “[t]he First Amendment is not implicated by

restrictions on student-to-student distribution of non-curricular materials by

elementary school students to their classmates.” In addition, the principals

asserted that they are entitled to qualified immunity because neither “this

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

claim by an elementary school student.” A unanimous panel of this court, like

the district court and the magistrate judge, rejected their argument, holding that

two state causes of action—violations of Title V of the Texas Civil Practice and Remedies Code

and Article 1, § 8 of the Texas Constitution.

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“it has been clear for over half a century that the First Amendment protects

elementary school students from religious-viewpoint discrimination.”

The principals petitioned for rehearing en banc, arguing that it was not

clearly established that elementary school students had a First Amendment

right to be free from viewpoint discrimination, and that the prohibition on

viewpoint discrimination did not apply to religious speech. This court granted

rehearing en banc.

II.

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

principals’ motion to dismiss based on qualified immunity under 28 U.S.C.

§ 1291 and the collateral-order doctrine, but only to the extent that the appeal

turns on questions of law. Mitchell v. Forsyth, 472 U.S. 511, 528-30 (1985). We

review a district court’s determination of a motion to dismiss de novo. In re S.

Scrap Material Co., 541 F.3d 584, 587 (5th Cir. 2008). For a complaint to avoid

being dismissed for failure to state a claim, the “[f]actual allegations must be

enough to raise a right to relief above the speculative level, . . . on the

assumption that all the allegations in the complaint are true (even if doubtful

in fact)” and the non-moving party must plead “enough facts to state a claim to

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

555, 570 (2007).

Here, the principals’ motion to dismiss before the district court was based

on a claim of qualified immunity, which “is an immunity from suit rather than

a mere defense to liability.” Mitchell, 472 U.S. at 526. Qualified immunity does

not provide officials with a license to engage in lawless conduct, however.

Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). Rather, “[w]here an official

could be expected to know that certain conduct would violate statutory or

constitutional rights, he should be made to hesitate; and a person who suffers

injury caused by such conduct may have a cause of action.” Id. “Qualified

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immunity shields federal and state officials from money damages unless a

plaintiff pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time

of the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011).

Therefore, qualified immunity protects government officials performing

discretionary functions from individual liability for civil damages, but only

“insofar as their conduct does not violate clearly established . . . rights of which

a reasonable person would have known.” Harlow, 457 U.S. at 818; see also

Thompson v. Upshur Cnty., 245 F.3d 447, 456-57 (5th Cir. 2001).

At this early pleading stage, our factual universe is bounded by the four

corners of the complaint. See Brown, 188 F.3d at 585-86. In other words, we

must determine whether the principals are entitled to qualified immunity based

on the facts alleged in the complaint, which we must accept as true, drawing all

reasonable inferences in favor of the students. Id. We lack jurisdiction to

resolve disputed factual issues or consider whether such disputes might entitle

the principals to qualified immunity. See Roe v. Tex. Dep’t of Protective and

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

III.

The first prong of qualified immunity asks whether the principals’ alleged

conduct violated a statutory or constitutional right. See al-Kidd,131 S. Ct. at

2080. Under Pearson v. Callahan, courts have discretion to decide which of the

two prongs of qualified immunity to tackle first. 555 U.S. 223, 236 (2009).

Although courts should “think hard” before exercising this discretion, “it

remains true that following the two-step sequence—defining constitutional

rights and only then conferring immunity—is sometimes beneficial to clarify the

legal standards governing public officials.” Camreta v. Greene, 131 S. Ct. 2020,

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2032 (2011).6 Here, the students argue that the principals violated their First

Amendment rights by discriminating against their speech because of its

religious viewpoint. Based on the facts alleged, we agree.

A.

The First Amendment protects an individual’s right to speak freely, a right

whose value lies in the fact that it defends equally all viewpoints, even

disfavored ones. Thus, viewpoint discrimination “strikes at the very heart of the

First Amendment.” Morse, 551 U.S. at 423 (Alito, J., concurring). “When the

government targets not subject matter, but particular views taken by speakers

on a subject, the violation of the First Amendment is all the more blatant.”

Rosenberger, 515 U.S. at 829. This prohibition is so well-established as to be

“axiomatic.” Id. at 828. “If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can prescribe what shall be

orthodox in politics, nationalism, religion, or other matters of opinion . . . .”

Barnette, 319 U.S. at 642.

The right to be free from viewpoint discrimination is no less important in

our public schools. Our public school officials “influence the attitudes of students

toward government, the political process, and a citizen’s social responsibilities.”

Ambach v. Norwick, 441 U.S. 68, 79 (1979). Our schools are tasked with

“inculcat[ing] the habits and manners of civility.” Bethel Sch. Dist. No. 403 v.

Fraser, 478 U.S. 675, 681 (1986). The habits and manners of a free people

include tolerance and consideration of a range of political and religious views.

For these reasons, the Supreme Court held over forty years ago that the

First Amendment prohibits viewpoint discrimination against all students in

public schools, absent material and substantial disruption. See Tinker v. Des

Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969). Students do not “shed their

6

At oral argument, the principals indicated that guidance in this area from our court

would be helpful to public officials.

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constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Id. at 506. In Tinker, the principals of the Des Moines schools became aware of

a plan by students to wear armbands protesting the Vietnam War. Id. at 504.

They adopted a policy that any student wearing such an armband would be

asked to remove it or face suspension. Id. Seven students decided to defy the

policy, including eight-year-old Paul Tinker, eleven-year-old Hope Tinker, and

thirteen-year-old Mary Beth Tinker. Id. at 516 (Black, J., dissenting).

The Supreme Court upheld the rights of those students against the

school’s efforts to prohibit the students from speaking their minds, holding that

“[i]n the absence of a specific showing of constitutionally valid reasons to

regulate their speech, students are entitled to freedom of expression of their

views.” Id. at 511. The Court even characterized this holding as “obvious”:

If a regulation were adopted by school officials forbidding discussion

of the Vietnam conflict, or the expression by any student of

opposition to it anywhere on school property except as part of a

prescribed classroom exercise, it would be obvious that the

regulation would violate the constitutional rights of students, at

least if it could not be justified by a showing that the students’

activities would materially and substantially disrupt the work and

discipline of the school.

Id. at 513.

Thus, under Tinker, school officials may not restrict student speech on

school property solely on the basis of viewpoint, unless there is a showing of

material and substantial disruption. See id. This holding was not revolutionary,

even in 1969.7 Indeed, almost thirty years before Tinker, the Supreme Court

7

Even before Tinker was decided, this court warned: “[S]chool officials cannot ignore

expressions of feelings with which they do not wish to contend. They cannot infringe on their

students’ right to free and unrestricted expression as guaranteed to them under the First

Amendment to the Constitution, where the exercise of such rights in the school buildings and

school rooms do not materially and substantially interfere with the requirements of

appropriate discipline in the operation of the school.” Burnside v. Byars, 363 F.2d 744, 749

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

Speech Clause of the First Amendment is no exception. See Barnette, 319 U.S.

at 642. Barnette involved two sisters who were in elementary school. They

challenged a West Virginia statute that required every child within the State’s

public school system to salute the American flag. As practicing Jehovah’s

witnesses, the Barnett8 sisters believed that pledging allegiance to the flag was

a prohibited form of idol worship. Id. at 629. After they declined to participate

in the ceremony, the school expelled them. Id. at 630. The Supreme Court

struck down the West Virginia statute and established the bedrock principle

that the First Amendment applies to all public school students: “The Fourteenth

Amendment, as now applied to the States, protects the citizen against the State

itself and all of its creatures—Boards of Education not excepted. . . . That they

are educating the young for citizenship is reason for scrupulous protection of

Constitutional freedoms of the individual, if we are not to strangle the free mind

at its source and teach youth to discount important principles of our

government as mere platitudes.”9 Id. at 637.

Since Tinker and Barnette, the Supreme Court has consistently reinforced

the notion that First Amendment rights are of paramount importance in school

facilities. See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112

(2001) (holding that a school violated the First Amendment when it prohibited

(5th Cir. 1966).

8

We use the correct spelling of the Barnett surname, which does not match the case

caption because courts misspelled the surname as “Barnette” during the litigation.

9

Although Barnette involves compelled speech and this case involves compelled silence,

the Supreme Court has explicitly stated that any distinction between “compelled speech” and

“compelled silence” is “without constitutional significance.” See Riley v. Nat’l Fed’n of the

Blind of N.C., Inc., 487 U.S. 781, 796 (1988).

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a private Christian organization for children aged six to twelve from holding

meetings at the school for the purpose of singing Christian songs, hearing Bible

lessons, and memorizing scripture); Lamb’s Chapel v. Ctr. Moriches Union Free

Sch. Dist., 508 U.S. 384, 393-94 (1993) (holding that the prohibition of Christian

perspective speech in a school facility constituted unconstitutional viewpoint

discrimination); Widmar v. Vincent, 454 U.S. 263, 265, 267 (1981) (holding that

a public university could not “close its facilities to a registered student group

desiring to use the facilities for religious worship and religious discussion”).

In its most recent school speech case, Morse v. Frederick, the Supreme

Court reaffirmed Tinker’s maxim that students do not “shed their constitutio

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