Legislative Privilege Is Personal: Fifth Circuit Dismisses Appeal and Clarifies Conjunctive Test for Non‑Party Appellate Standing

Introduction

In Arnold v. Barbers Hill Independent School District, the Fifth Circuit confronted an interlocutory appeal arising from discovery disputes over “legislative privilege” in litigation challenging a public school district’s male hair-length policy. The plaintiffs—students and a parent—alleged the policy violated the First and Fourteenth Amendments, Title VI, Title IX, and Texas law. During discovery, plaintiffs noticed the depositions of Superintendent Greg Poole and former Board President Fred Skinner. The district court declined to rule on privilege issues in the abstract and instead ordered an “assert–disclose–review” protocol: deponents must answer deposition questions, assert privilege on the record, designate the answers confidential, and any later use would proceed via sealed in camera review with a motion to compel.

The school district (BHISD), the Board of Trustees, and the two individual deponents appealed, arguing the protocol compelled disclosure of privileged material and thus eviscerated the legislative privilege. The Fifth Circuit, however, never reached the merits or the collateral-order question. It dismissed for lack of appellate jurisdiction based on prudential standing: the privilege holders had not individually invoked the privilege or otherwise adequately participated in the district court, and the entities could not assert a personal privilege belonging to individual legislators.

The opinion sets two important jurisdictional markers. First, it reinforces that legislative privilege is personal to the legislator and cannot be asserted by a governmental entity to shield its members. Second, it clarifies—expressly—that a non-party’s appellate standing in the Fifth Circuit requires satisfying all three elements of the Castillo test conjunctively, not as a balancing inquiry. These clarifications will shape how parties, government bodies, and individual officeholders litigate legislative-privilege questions in discovery going forward.

Summary of the Opinion

The Fifth Circuit dismissed the interlocutory appeal for lack of appellate standing, holding:

Legislative privilege is personal. BHISD and its Board cannot assert legislative privilege on behalf of individual members. Because the asserted right belongs to the legislators themselves, the governmental entities were not “aggrieved” and lacked third-party appellate standing.
Non-party legislators lacked standing. Poole and Skinner, no longer parties in the case, did not “participate adequately” in the district court on this issue—most critically, they had not actually invoked the privilege or otherwise engaged with the privilege dispute below—so they failed the first element of non-party standing.
Castillo test clarified. The court expressly clarifies that the three-part non-party standing test (participation, equities, personal stake) must be satisfied conjunctively; it is not a balancing test that allows shortfalls on one element to be offset by the others.
Scope of disposition. Because no appellant had standing, the court dismissed the appeal and denied the stay motion as moot. It did not reach whether the order was an appealable collateral order, the merits of the discovery protocol, any waiver arguments, or whether Poole (as an executive officer) could invoke legislative privilege.
Mandamus declined. The court declined to treat the appeal as a mandamus petition, emphasizing the extraordinary nature of the writ and the appellants’ failure to brief the required elements.

Analysis

Precedents Cited and Their Influence

La Unión del Pueblo Entero v. Abbott (LUPE), 93 F.4th 310 (5th Cir. 2024).
LUPE provides the backbone for two propositions central to this case: (1) legislative privilege is personal to the legislator (drawing from Speech or Debate Clause principles, e.g., Gravel v. United States), and (2) a non-party legislator can, in appropriate circumstances, appeal a discovery order denying privilege if the legislator personally asserted the privilege and participated adequately below. In LUPE, non-party legislators had responded to subpoenas, asserted privilege, and participated through briefing and hearings. That robust engagement satisfied the non-party standing test. Here, by contrast, Poole and Skinner had not invoked the privilege or participated in the privilege dispute in the district court, making LUPE’s path to appellate standing unavailable.
Castillo v. Cameron County, 238 F.3d 339 (5th Cir. 2001); In re Lease Oil Antitrust Litigation, 570 F.3d 244 (5th Cir. 2009); Lewis v. Crochet, 105 F.4th 272 (5th Cir. 2024).
These cases outline and apply the Fifth Circuit’s non-party standing framework: a non-party may appeal if (1) it actually participated below, (2) the equities favor hearing the appeal, and (3) it has a personal stake in the outcome. The Arnold court resolves lingering ambiguity by clarifying that these are required elements, not merely factors to be weighed. The clarification aligns with precedent describing the test in the conjunctive and promotes predictability by foreclosing ad hoc balancing that could produce inconsistent results.
Rohm & Haas Texas, Inc. v. Ortiz Bros. Insulation, Inc., 32 F.3d 205 (5th Cir. 1994); United States v. Fletcher ex rel. Fletcher, 805 F.3d 596 (5th Cir. 2015); In re Deepwater Horizon, 857 F.3d 246 (5th Cir. 2017).
These decisions articulate prudential limits on appellate standing: a party may not appeal merely to champion the rights of others, and an appellant must be aggrieved by the order. In Arnold, those principles mean BHISD and the Board cannot use their party status to advance the personal legislative privileges of individual members.
Gravel v. United States, 408 U.S. 606 (1972).
Gravel underscores the personal nature of legislative privilege/immunity rooted in legislative functions. Arnold invokes this lineage to reaffirm that entities cannot assert individual legislators’ privileges.
Pen American Center, Inc. v. Escambia County School District, No. 24-13896, 2025 WL 1937264 (11th Cir. July 15, 2025) (unpublished); Kimberly Regenesis, LLC v. Lee County, 64 F.4th 1253 (11th Cir. 2023).
The Fifth Circuit finds persuasive the Eleventh Circuit’s approach in nearly identical circumstances: a school board lacked standing to assert legislative privilege on behalf of individual members, and non-party members who did not otherwise participate lacked standing to appeal. Kimberly Regenesis similarly denied a government entity standing to appeal denial of an immunity that belonged to others, reinforcing the aggrievement principle.
United States v. Fluitt, 99 F.4th 753 (5th Cir. 2024); Overby, 224 F.2d 158 (5th Cir. 1955).
These cases illustrate when non-parties may appeal discovery orders: where they asserted privilege, opposed compulsion, and thus meaningfully participated. Arnold contrasts those scenarios with the complete lack of personal assertion or participation by Poole and Skinner.
League of United Latin American Citizens v. Abbott (LULAC I), No. EP‑21‑CV‑00259, 2022 WL 1570858 (W.D. Tex. May 18, 2022); League of United Latin Am. Citizens v. Abbott (LULAC II), No. 22‑50407, 2022 WL 2713263 (5th Cir. May 20, 2022) (unpublished motions-panel order).
The district court borrowed LULAC I’s “assert–disclose–review” deposition procedure. Although a Fifth Circuit motions panel once commended that approach, LULAC II is unpublished and non-precedential. Arnold carefully refrains from approving or disapproving the protocol because the appeal is dismissed on jurisdictional grounds.
Cheney v. U.S. District Court for D.C., 542 U.S. 367 (2004); In re Westcott, 135 F.4th 243 (5th Cir. 2025).
These mandamus authorities frame the writ as an extraordinary remedy. Arnold declines mandamus for inadequate briefing, underscoring that mandamus is no backdoor to immediate review absent careful satisfaction of the stringent criteria.

Legal Reasoning

The court’s reasoning proceeds in discrete steps focused on appellate jurisdiction rather than the merits of privilege.

Threshold: Standing can be raised sua sponte. Even though appellees only briefly flagged the failure of individual invocation, the court may—and does—examine prudential appellate standing on its own initiative. This is consistent with the court’s practice in considering both constitutional and prudential standing issues sua sponte.
Assumption without decision: Collateral order doctrine. The court assumes arguendo that an order like the district court’s discovery protocol could fit within the collateral-order doctrine, but finds that assumption irrelevant because the appellants lack standing to appeal in any event.
Entities cannot assert personal legislative privilege. Legislative privilege is personal to the legislator. Because BHISD and its Board do not themselves hold that privilege, they are not “aggrieved” by an order that addresses others’ privileges and therefore lack third-party appellate standing. A party cannot appeal to vindicate another’s right.
Non-party standing requires three conjunctive elements. The court clarifies the non-party standing standard: (1) adequate participation below, (2) equities favoring appeal, and (3) a personal stake in the outcome. All three must be met; this is not a flexible balancing exercise.
Application to Poole and Skinner: inadequate participation. Although Poole and Skinner were once parties, they did not participate in the privilege dispute after dismissal and, critically, did not personally assert legislative privilege in the district court. Their lack of involvement fails the first, indispensable element. Even assuming the equities and personal stake favored appeal, failure on participation is dispositive.
Board of Trustees: no standing under either theory. As a non-party, the Board did not participate adequately; as an entity, it cannot assert members’ personal privilege. Either way, it lacks standing.
Unresolved issues preserved. Because standing is lacking, the court does not decide waiver, whether the superintendent qualifies as a privilege holder in this context, or the propriety of the “assert–disclose–review” protocol.
Mandamus not available on this record. The appellants offered perfunctory mandamus arguments and did not show the “drastic and extraordinary” prerequisites. The court declines to entertain mandamus in lieu of appeal.

Impact

Arnold has immediate, practical effects for legislative-privilege litigation in the Fifth Circuit:

Government entities cannot front the privilege. School districts, boards, councils, and agencies may not invoke or appeal to protect legislative privilege for members. If privilege is at issue, the individual legislators must assert it themselves.
Non-party appellate pathway tightened. By clarifying that all three Castillo elements are required, the court narrows non-party avenues for interlocutory appellate review. Legislators who want appellate review must create a record of personal assertion and participation in the trial court (e.g., object at deposition, move for protective order, brief and attend hearings, and, if necessary, move to intervene).
Discovery will proceed unless privilege is personally invoked. District courts may continue using procedural mechanisms like “assert–disclose–review” without appellate interruption where privilege holders have not personally invoked the privilege or participated below. The merits of such protocols remain open for a future case with proper standing.
Strategic shift: early coordination and intervention. Counsel for government bodies should promptly coordinate with individual members to ensure that, if legislative privilege is to be asserted, the members personally invoke it and participate meaningfully. Moving to intervene is a “more certain way” than hoping for non-party appellate standing later.
Mandamus remains possible but demanding. If immediate review is essential, litigants must diligently brief and satisfy the Cheney criteria. Arnold signals that cursory mandamus arguments will not be entertained.
Unanswered questions preserved for future cases. Whether certain executive officials (like a superintendent) may claim legislative privilege, the contours of waiver, and the validity of compelled-answer protocols await a case with proper procedural posture and standing.

Complex Concepts Simplified

Legislative privilege vs. legislative immunity.
Legislative privilege is an evidentiary protection that shields legislators (and sometimes their aides) from inquiry into legislative acts, motives, and deliberations. Legislative immunity protects against being sued or held liable for legislative acts. Arnold addresses privilege, not immunity, and emphasizes its personal nature—only the legislator (or properly situated aide) can assert it.
Personal nature of the privilege.
The privilege belongs to the individual legislator, not to the body (e.g., school board) or the government entity. As a result, only the individual holder can assert or waive it, and entities cannot appeal to vindicate it on members’ behalf.
Prudential (appellate) standing.
Separate from Article III standing, prudential standing limits who may appeal. A party must be “aggrieved” by the order. A non-party may appeal only if it (1) actually participated below on the issue, (2) the equities favor immediate review, and (3) it has a personal stake in the outcome. Arnold clarifies that all three are required.
“Participated adequately.”
Adequate participation typically means the non-party personally asserted the privilege or right at issue and engaged with the trial court (e.g., objected at deposition, moved for a protective order, filed briefs, attended hearings). Mere awareness or later-filed declarations are not enough.
Collateral order doctrine.
A narrow exception allowing certain non-final orders to be appealed immediately if they conclusively determine an important issue separate from the merits and would be effectively unreviewable after final judgment. Arnold avoids deciding whether the discovery protocol fit this doctrine because standing was lacking.
“Assert–disclose–review” deposition protocol.
A procedure where a deponent answers questions, asserts privilege on the record, and designates the testimony confidential; any subsequent use requires a sealed filing and in camera judicial review. Arnold does not endorse or reject this approach; it remains an open question in the Fifth Circuit pending a case with proper standing.
Mandamus.
An extraordinary writ reserved for truly exceptional circumstances where a clear and indisputable right to relief exists and no adequate alternative remedy is available. It is not a substitute for routine appellate review. Arnold underscores the need for rigorous briefing to invoke this remedy.

Conclusion

Arnold v. Barbers Hill ISD sets a clear jurisdictional boundary for legislative-privilege disputes in the Fifth Circuit: legislative privilege is personal, so governmental entities cannot assert it for their members, and non-party legislators must personally invoke the privilege and participate adequately in the trial court to secure appellate standing. The court also removes any ambiguity about the non-party appellate standing test by declaring the Castillo elements conjunctive rather than a balancing exercise.

The opinion’s immediate consequence is to leave undisturbed the district court’s discovery management, including an “assert–disclose–review” protocol, because no appellant with standing brought the privilege question to the court of appeals. Its longer-term effect is to channel privilege disputes into the trial court record with the active involvement of the actual privilege holders, and to discourage interlocutory appeals by entities seeking to shield their members. For practitioners, the message is straightforward: if legislative privilege is at stake, ensure that the individual legislators themselves timely assert it, participate meaningfully in the district court, and, where appropriate, intervene—because without those steps, appellate review will be out of reach.

In sum, Arnold is a significant jurisdictional decision. It safeguards the personal nature of legislative privilege, promotes orderly development of the record in the district court, and brings needed clarity to the Fifth Circuit’s non-party appellate standing doctrine. The merits of how legislative privilege applies to school-board discovery and the validity of compelled-answer protocols remain for another day, and for appellants with standing.