concluding that an analysis of whether student speech infringes on the right to be let alone may “look different in the elementary- school context” given that elementary students are “more susceptible to coercion and peer pressure” than older students
How later courts described this case
- concluding that an analysis of whether student speech infringes on the right to be let alone may “look different in the elementary- school context” given that elementary students are “more susceptible to coercion and peer pressure” than older students
- holding, for the majority, that discriminating against student speech on the basis of religious viewpoint violated the First Amendment and concluding, in dissent, that the right was clearly established
- holding that student passing out pencils with the word “Jesus” on them during non-curricular time was protected by the First Amendment
- holding “[t]he defendants in this case are entitled to qualified immunity because existing precedent failed to place the constitutionality of their conduct ‘beyond debate’ ”
Written by the judges who cited it.
The opinion
KING, Circuit Judge,
with whom W. EUGENE 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 *391 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.
. 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).