MORGAN v. SWANSON

law did not clearly establish that the First Amendment Free Speech Clause is implicated under the alleged circumstances of this case because neither "this [c]ourt nor the Supreme Court has ever upheld a First Amendment free speech claim by an elementary school student."

This court has' previously recognized this broad characterization of Appellants' argument in a related case. Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 744 (5th Cir. 2009) ("Defendants Lynn Swanson and Jackie Bomchill, Principals at Thomas Elementary School and Rasor Elementary School, urge that the First Amendment does not apply to elementary school students."), cert. denied, ___ U.S. ___, 130 S.Ct. 3503, ___ L.Ed.2d ___ (2010).

IV.

The issues before this court are straightforward and limited. This court is not tasked with determining whether Appellants actually engaged in religious-viewpoint discrimination because at this juncture, we must accept Appellees' factual allegations that Appellants discriminated against religious viewpoints. Nor is this court tasked with drawing the line at which student speech may be properly censored because of its potential to disrupt the classroom, see Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), or because of its potential to subvert the school's educational mission, see Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). Because Appellants asserted qualified immunity in a motion to dismiss, this court must accept as true Appellees' factual allegations, and accordingly, we conclude that their actions, as alleged, did not cause substantial and material disruption of school operations. Tinker, 393 U.S. at 509, 89 S.Ct. 733. Furthermore, the facts alleged, viewed in a light most favorable to Appellees, provide no indication that the events at issue were curricular or that the speech was inconsistent with the school's "basic educational mission." Hazelwood, 484 U.S. at 266, 108 S.Ct. 562 (internal quotations and citation omitted). In fact, some of the alleged speech at issue occurred after school hours. Therefore, we need only determine, under the facts pleaded here, whether it was clearly established at the time of the alleged misconduct that elementary school students have a First Amendment right to be free from religious-viewpoint discrimination while at school.

Appellants do not argue in their motion to dismiss or in their initial brief before this court (1) that they are entitled to qualified immunity with respect to their restriction of parent-to-parent speech on school grounds or (2) that Appellees have failed to plead (or have waived the argument) that Appellants engaged in unconstitutional viewpoint discrimination with respect to parent-to-parent speech. Accordingly, this court does not consider such arguments, which were raised for the first time in Appellants' reply brief on appeal. "An appellant abandons all issues not raised and argued in its initial brief on appeal." Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (citations omitted).

A.

Appellants contend that "neither the Supreme Court nor this Court has ever extended First Amendment `freedom of speech' protection to the distribution of non-curricular materials in public elementary schools." They are wrong. The Supreme Court has long recognized that public school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker, 393 U.S. at 506, 89 S.Ct. 733. Furthermore, for 67 years, the Supreme Court has recognized that school officials are subject to the Constitution, and the Free Speech Clause of the First Amendment is no exception. "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. . . ." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Over six decades ago, Barnette made it clear that the First Amendment applies to 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. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. 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.

Barnette, 319 U.S. at 637, 63 S.Ct. 1178.

Appellants argue that reliance on Barnette is misplaced because "(1) there is nothing in the Supreme Court's decision in Barnette, nor in the lower court's decision, that indicates that the plaintiffs in Barnette were elementary school students nor that the decision generally applies the free speech clause in the elementary school context, (2) the Supreme Court was not presented with the question of whether it should differentiate between elementary school and high school students, and (3) Barnette involved compelled speech, not a restriction on the distribution of non-curricular materials." These arguments are meritless. With respect to the age of the Barnett Sisters, although the Supreme Court opinion does not specifically use the term "elementary school," it is evident on the face of the decision itself that the plaintiffs were elementary school students. Id. at 630, 633, 644, 63 S.Ct. 1178 (describing the plaintiffs as "children" and "little children").

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.

Furthermore, the fact that the Supreme Court did not analyze whether it should differentiate between elementary and high school students is inconsequential and does nothing to subvert the clarity of the opinion. The issue here is whether elementary school students have any First Amendment rights, not whether their rights are coextensive with high school students. In addition, Barnette overruled Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940), which involved a ten-year-old child. Id. at 591, 60 S.Ct. 1010; see also Bowen v. Roy, 476 U.S. 693, 705, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986) (stating that Barnette involved "young children at elementary and secondary schools" (citation omitted) (Brennan, J., concurring)).

As to Appellants' third contention, the state school board's policy, which required every student to pledge allegiance to the United States flag regardless of religious beliefs, effectively prevented the Barnett Sisters from privately expressing their religious viewpoint — albeit through silence — at school. The Bill of Eights, "which guards the individual's right to speak his own mind, [does not leave] it open to public authorities to compel him to utter what is not in his mind." Barnette, 319 U.S. at 634, 63 S.Ct. 1178; see also Wallace v. Jaffree, 472 U.S. 38, 51, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (citing Barnette, 319 U.S. at 633-34, 63 S.Ct. 1178, for the proposition that "freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all").

Twenty-six years after Barnette, the Supreme Court reiterated that the First Amendment Free Speech Clause applied to all students while in school:

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. This has been the unmistakable holding of this Court for almost 50 years. . . . Students in school . . . are "persons" under our Constitution. . . . They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.

Tinker, 393 U.S. at 506, 511, 89 S.Ct. 733. In Tinker, the "problem [involved] direct, primary First Amendment rights akin to `pure speech'" and, similarly to the allegations in this case, did "not concern speech or action that intrudes upon the work of the schools or the rights of other students." Id. at 508, 89 S.Ct. 733. In that case, there was no evidence that the students' expressive conduct materially and substantially disrupted the work and discipline of the school. Id. at 508, 514, 89 S.Ct. 733.

Appellants "contend that the First Amendment, and therefore Tinker, does not apply to student-to-student distribution of non-curricular materials by students in elementary schools" and cite Tinker, attempting to show that the "United States Supreme Court has never clearly addressed the question of whether any First Amendment free speech protections apply in public elementary schools." Once again, Appellants are mistaken. It does not follow that, because the majority opinion in Tinker did not use the precise term "elementary school," the Court's holding that " First Amendment rights . . . are available to teachers and students" somehow specifically excludes elementary school students. Id. at 506, 89 S.Ct. 733. On the contrary, the petition for certiorari in Tinker, "urg[ed] that the First and Fourteenth Amendments protect the right of school pupils to express their political views all the way `from kindergarten through high school'" Id. at 516, 89 S.Ct. 733 (Black, J., dissenting). Justice Black's dissent further illustrates that the Court's decision in Tinker applied to elementary school students: "[I]f the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary." Id. at 518, 89 S.Ct. 733 (Black, J., dissenting). In sum, given the factual allegations, which we must accept as true at this pleading stage, the school unconstitutionally discriminated against the speech of the elementary school students on the basis of religious viewpoint.

B.

Appellants nevertheless contend that they are entitled to qualified immunity because the law does not clearly establish that the Constitution prohibits viewpoint discrimination against religious speech in elementary schools. Appellants are again mistaken.

Appellees contend that the clearly established inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." The Supreme Court, however, has held that "general 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." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (internal quotation marks and citations omitted). The Supreme Court's general and broad prohibitions are sufficient to provide "fair warning" that the general rule prohibiting viewpoint discrimination applies to elementary school students. Furthermore, when pressed to do so at oral argument, Appellants had great difficulty providing a single case in all of American history holding that religious-viewpoint discrimination against elementary school children is appropriate. "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.'" Safford Unified Sch. Dist. No. 1 v. Redding, ___ U.S. ___, 129 S.Ct. 2633, 2643, 174 L.Ed.2d 354 (2009) (citing K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990)).

In addition to Tinker and Barnette, the Supreme Court, the Fifth Circuit, the United States government, and even Plano ISD notified Appellants that elementary school students have First Amendment rights. See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 103, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (applying the First Amendment Free Speech Clause to students "ages 6 to 12"); Rosenberger v. Rector Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) ("It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . . Discrimination against speech because of its message is presumed to be unconstitutional." (citations omitted)); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (holding, without distinguishing on the basis of age, that "the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others" (citation omitted)); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (citing Tinker for the holding that "[c]onstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority" and that "[m]inors, as well as adults, are protected by the Constitution and possess constitutional rights" (citations omitted)); Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273, 280 (5th Cir. 2003) (holding in the middle school context, without distinguishing on the basis of age, that "[i]t is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys" and that "government actors violate a clearly established right if they discriminate on the basis of the views espoused by the speaker" (internal quotation marks and citations omitted)); United States Department of Education, Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools (February 7, 2003), available at http://www2.ed.gov/policy/gen/guid/ religionandschools/prayer_ guidance.html (stating that the First Amendment "protects privately initiated religious expression and activities from government interference and discrimination"); Plano ISD, Student Expression: Distribution of Nonschool Literature, R. 3812-13 (showing that Plano ISD did not distinguish the legal right of a student to distribute non-school literature on the basis of age). In addition, this court has already observed in a related case that elementary school students are entitled to First Amendment rights. Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 745 (5th Cir. 2009) (applying the O'Brien "time, place, and manner" test to Plano ISD's policy regulating student-to-student distribution of non-curricular materials in elementary schools — a test that would have been inappropriate had the court concluded that elementary school students are not protected by the First Amendment), cert. denied, ___ U.S. ___, 130 S.Ct. 3503, ___ L.Ed.2d ___ (2010).

Appellants' reliance on Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007), to suggest that the law is not clearly established is misplaced. First, Morse was decided several years after the alleged conduct at issue, and therefore, Appellants could not have relied on it at the time of the alleged conduct to assess whether their actions were constitutionally permissible. Second, assuming arguendo that Appellants could consider Morse, the appeal in that case arose out of a summary-judgment motion, not a 12(b)(6) motion as in the instant case. Morse did not unsettle Tinker's application to elementary schools. Rather, Morse analyzed a specific type of conduct — promotion of illegal drug use — that can be restricted under Tinker given the "special characteristics of the school environment." Morse, 551 U.S. at 397, 127 S.Ct. 2618.

Moreover, Appellants' reliance on Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), to urge us to look to courts in other circuits to support their novel proposition — that there is no clearly established right of elementary school students to distribute non-curricular materials to their classmates — is both misplaced and unhelpful. Pearson does not stand for the proposition that courts are always required to consider decisions in other circuits when evaluating whether a right is clearly established. Rather, Pearson gives state officials the liberty to rely on clearly established law in other circuits in situations where the Supreme Court and their own circuit have not yet acted. Id. at 822-23. Conversely, even prior to Pearson, we have observed that other precedent may be used in some circumstances to demonstrate the presence of a clearly established right in situations where the Supreme Court and this circuit have not yet addressed the issue. McClendon v. City of Columbia, 305 F.3d 314, 329 (5th Cir. 2002) (en banc) ("[I]n the absence of directly controlling authority, a consensus of cases of persuasive authority might, under some circumstances, be sufficient to compel the conclusion that no reasonable officer could have believed that his or her actions were lawful." (internal quotation marks and citations omitted)).

Even assuming arguendo that it were necessary to consider the law of other circuits, Appellants would not be entitled to qualified immunity. See, e.g., Peck v. Baldwinsville Central Sch. Dist., 426 F.3d 617, 625-29, 633 (2d Cir. 2005) (applying the Hazelwood framework in the kindergarten setting to conclude that certain speech was "school-sponsored" but nevertheless holding that "a manifestly viewpoint discriminatory restriction on school-sponsored speech is, prima facie, unconstitutional, even if reasonably related to legitimate pedagogical interests"); Walker-Serrano v. Leonard, 325 F.3d 412, 417 (3d Cir. 2003) (concluding that although age is a factor, "this calculus does not [necessarily] mean that third graders do not have First Amendment rights under Tinker"); Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 280 (3d Cir. 2003) ("[Elementary school students retain certain First Amendment rights of expression." (citation omitted)); Brown v. Gilmore, 258 F.3d 265, 278 (4th Cir. 2001) ("Despite language in Supreme Court precedent recognizing the impressionability of elementary school children . . . nothing the Court has said `sugges[s] that, when the school was not actually advancing religion, the impressionability of students would be relevant to the Establishment Clause issue.'" (quoting Good News Club v. Milford Cent. Sch., 533 U.S. 98, 116, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001))); Curry v. Hensiner, 513 F.3d 570 (6th Cir. 2008) (applying Hazelwood's First Amendment framework in the elementary school setting); Hosty v. Carter, 412 F.3d 731, 735 (7th Cir. 2005) ("The Supreme Court itself has established that age does not control the public-forum question. . . . No public school, of any level — primary, secondary, or post-secondary — may discriminate against religious speech in a public forum (including classrooms made available to extracurricular activities). . . . Hazelwood'?, framework applies to . . . elementary and secondary schools." (citations omitted)); Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1538 (7th Cir. 1996) (recognizing that "religious speech cannot be suppressed solely because it is religious . . ., a principle that makes sense in the elementary school environment"); Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1298 (7th Cir. 1993) ("[N]othing in the [F]irst [A]mendment postpones the right of religious speech until high school."); Frazier v. Winn, 535 F.3d 1279, 1281-83 (11th Cir. 2008) (finding that all Florida public school students "at all grade levels from kindergarten to twelfth grade" have the First Amendment right to not stand during the pledge of allegiance).

Appellants contend that the law is not clearly established and argue that the Third and the Sixth Circuits have upheld viewpoint discrimination against religious speech in elementary schools. See Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 278-79 (3d Cir. 2003) (holding that the school could prohibit gifts with "commercial, political, religious, or other undertones that promoted a specific message" in an organized curricular activity); Curry v. Hensiner, 513 F.3d 570 (6th Cir. 2008) (holding that the school could prohibit religious messages on goods sold during a simulated marketplace that was part of the formal curriculum). Initially, we note that the speech restriction in Walz was not limited to a religious viewpoint. More importantly, these cases fail to support Appellants' novel proposition that school officials may discriminate against religious viewpoints because of the age of the speaker. Rather, both cases apply the principle that a school may restrict student speech when it occurs during "school-sponsored" activities that "the public might reasonably perceive to bear the imprimatur of the school" and the restriction is "reasonably related to legitimate pedagogical concerns." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271, 273, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). Here, the alleged events fall outside the Hazelwood context because Appellees' complaint, which we must accept as true, indicates that Appellants restricted the students' speech solely because of its religious character, not for a pedagogical reason or because of a concern that the public might misperceive the speech as bearing the imprimatur of the school.

In light of the overwhelming precedent and persuasive authority to the contrary, it is unsurprising that Appellants can point to no case stating that elementary school students are without protection under the First Amendment from religious-viewpoint discrimination, absent evidence of disruption to the classroom or subversion of educational mission. Appellants thus had fair warning that the suppression of student-to-student distribution of literature on the basis of religious viewpoint is unlawful under the First Amendment with respect to elementary school students. Therefore, Appellants are not entitled to qualified immunity. "If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Furthermore, this case does not present extraordinary circumstances, and Appellants have set forth no argument that they "neither knew nor should have known of the relevant legal standard." Id. at 819, 102 S.Ct. 2727. Appellants' conduct, as alleged, violated the elementary school students' clearly established First Amendment rights.

We reach our holding in light of the facts as alleged in the complaint, which we must accept as true at this pleading stage, and Appellants' acknowledgment that the speech, as alleged, is non-disruptive student-to-student speech. Moreover, Appellants have consistently argued both before the district court and this court that qualified immunity should be granted because elementary school students do not have any First Amendment rights. No law supports Appellants' novel proposition. It is clearly established that elementary school students have First Amendment rights. Our holding, however, does not preclude the district court from granting qualified immunity in this case should the facts demonstrate that this is other than non-disruptive student-to-student speech. In addition, nothing prohibits Appellants from raising other grounds for qualified immunity in the future.

Appellants contend that, even if the law is clearly established that the First Amendment prohibits religious viewpoint discrimination at the elementary school level, qualified immunity nevertheless applies because of current confusion with respect to Establishment Clause jurisprudence. This argument borders on the frivolous and is a red herring. Appellees' complaint provides no indication, whatsoever, that the student speech was anything other than non-disruptive, non-curricular student-to-student speech, and no facts pleaded suggest that the speech bears the imprimatur of the public schools or that any students were confused as to the source of the speech. "[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990).

V.

Appellees' have alleged a violation of clearly established law; therefore, Appellants are not entitled to qualified immunity. The district court's denial of Appellants' Motion to Dismiss is AFFIRMED.