Case: 20-20215 Document: 00515919207 Page: 1 Date Filed: 06/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 29, 2021
No. 20-20215
Lyle W. Cayce
Clerk
Mari Leigh Oliver,
Plaintiff—Appellee,
versus
Benjie Arnold,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-3234
Before Wiener, Dennis, and Duncan, Circuit Judges.
James L. Dennis, Circuit Judge:
Mari Leigh Oliver brought suit against Benjie Arnold, her former
Sociology teacher at a public high school in Texas, alleging that he violated
her First Amendment rights by attempting to compel her to transcribe the
United States Pledge of Allegiance and by retaliating against her after she
refused. Arnold moved for summary judgment on the ground that qualified
immunity protected him from liability. The district court denied the motion,
finding that genuine factual disputes regarding Arnold’s conduct and
intentions precluded a finding that he did not violate any of Oliver’s clearly
established rights. Arnold filed this interlocutory appeal, and Oliver filed a
Case: 20-20215 Document: 00515919207 Page: 2 Date Filed: 06/29/2021
No. 20-20215
motion to dismiss the appeal for lack of jurisdiction. Because Arnold seeks
to have this court resolve the very factual disputes that the district court
found to be genuine and properly submitted for trial on the merits, which we
do not have jurisdiction to do, we grant Oliver’s motion and DISMISS the
appeal.
I. FACTS AND PROCEDURAL HISTORY
A. Background
As discussed in more detail below, we lack jurisdiction in an appeal of
a denial of qualified immunity at the summary judgment stage to reexamine
the evidence in the record to determine whether the factual disputes
identified by the district court are genuine. See Colston v. Barnhart, 146 F.3d
282, 284 (5th Cir. 1998) (examining Johnson v. Jones,
515 U.S. 304 (1995),
and Behrens v. Pelletier,
516 U.S. 299 (1996), in explaining that we lack
jurisdiction in this context to consider whether “evidence could support a
finding that particular conduct occurred” (quoting Behrens,
516 U.S. at 313)).
Instead, we must look only to the district court’s ruling, accepting as true the
version of the purportedly disputed facts that is most favorable to the claims
asserted by the plaintiff. See
id. We therefore assume the following facts to
be true while expressing no opinion as to whether they are fully supported by
the evidence in the record, and we note that a wholly different version of
events may ultimately be proven at trial.
Under Texas state law, public school districts must require students
to recite the United States Pledge of Allegiance (the “Pledge”) every school
day. See TEX. EDUC. CODE § 25.082(b). However, the law requires schools
to excuse any student from this obligation “[o]n written request from a
student’s parent or guardian.” Id. at § 25.082(c). Klein Independent School
District (“KISD”)’s pledge policy tracks the Texas statute, and, absent a
2
Case: 20-20215 Document: 00515919207 Page: 3 Date Filed: 06/29/2021
No. 20-20215
written excuse from a parent or guardian, students are required to recite the
Pledge each day.
Oliver is a young black woman who was enrolled as a student at Klein
Oak High School (“Klein Oak”) within KISD during the events that gave
rise to this case. Oliver objects to the Pledge because she feels that the
portion declaring America to be a nation “under God” fails to recognize
many religions and does not match her personal religious beliefs. She further
believes that, contrary to the words of the Pledge, there is not “freedom and
justice for all” in America because she and other black people continue to
experience widespread racial persecution. Oliver therefore declines to stand
for or recite the Pledge.
During her time at Klein Oak, Oliver’s refusal to participate in the
Pledge led to a number of confrontations with KISD employees and her
fellow students. On November 30, 2015, following one such conflict between
Oliver and her Journalism teacher, Oliver’s mother LaShan Arceneaux sent
an email to the Klein Oak principal and guidance counselor that objected to
the teacher “giving [Oliver] a hard time” for abstaining from the Pledge and
asked that Oliver be transferred to a different class. The problems persisted,
and approximately a year later, on November 14, 2016, Arceneaux sent a
second email, this time to the Klein Oak principal and the KISD
superintendent. The second email faulted the school for failing to stop the
“harass[ment] of students who choose not to say the pledge.” It further
asserted that Oliver’s “desire not to say the pledge is not an opinion, it is a
constitutional right.”
The following year, Oliver took Arnold’s Sociology class. On August
18, 2017, the Klein Oak principal held a meeting with Oliver’s teachers,
including Arnold, and instructed them that Oliver was not required to
participate in the Pledge. Nonetheless, on September 20, 2017, Arnold gave
3
Case: 20-20215 Document: 00515919207 Page: 4 Date Filed: 06/29/2021
No. 20-20215
the class an assignment to transcribe the words of the Pledge of Allegiance
(“the Pledge assignment”). Although Arnold claims that the assignment had
a pedagogical purpose, the district court found that his intentions were
genuinely disputed, and we therefore must assume for purposes of this appeal
that Arnold’s justification was pretextual and Arnold intended the
assignment as a mandatory statement of patriotic belief from his students.
Oliver refused to complete the assignment and instead drew a “squiggly
line.”
During class the next day, Arnold told his students that anyone who
did not complete the Pledge assignment would receive a grade of zero. 1
Arnold then engaged in an extended diatribe, which we must assume was
aimed at Oliver and motivated by his hostility toward her refusal to transcribe
the Pledge, in which he lamented what he viewed as the decline of American
values and decried a variety of people whose attitudes he deemed to be unAmerican, including communists, supporters of Sharia law, foreigners who
refuse to assimilate into American culture, and sex offenders and those that
argue for their rehabilitation. 2
Your assignment yesterday was to write the Pledge. If you have
a math class and that teacher gives you 10 problems to do, and
you say you don’t wanna do ‘em, tell me what your grade is[.]
It’s a zero. And you have the option to do that, but what you’ve
done is leave me no option but to give you a zero. And you can
1
The district court twice stated that “[t]he parties dispute whether Arnold actually
gave Oliver a zero” for failing to complete the Pledge assignment. The court then found
that “a reasonable jury could conclude that Arnold . . . threatened to give a zero to anyone
who refused to write the pledge (whether he acted on the threat or not).” From this
language, it does not appear that the district court made any finding regarding whether
Arnold actually gave Oliver a zero.
2
Oliver made a surreptitious recording of Arnold’s speech, and it is transcribed
verbatim in the district court’s memorandum opinion.
4
Case: 20-20215 Document: 00515919207 Page: 5 Date Filed: 06/29/2021
No. 20-20215
have all the beliefs, and resentment, and animosity that you
want. But I made it clear yesterday: Writing it is not something
you pledge. But again, but I know the sticker’s gone—I used
to have it, and it said “America, love it, or leave it.” And if you
can tell me two countries you’d rather go to[,] I will pay your
way there if they’re communist or socialist. Most of Europe is
socialist and it’s crumbling. Or it’s communism. But if you
ever come back you have to pay me twice what it cost me to
send you there. You know there’s a lot of things I complain
about. So when it comes time in November I go vote, or I
protest in writing, in legal. Those are the ways we do it in
America. Where a country will crumble is when people coming
into a country do not assimilate to that country. That doesn’t
mean you forget Day of the Dead, and whatever cultures[,] you
maintain your language. That doesn’t mean that. But you’re
not gonna drive on the left side of the road, and you’re not
gonna impose Sharia law. Because it’s not. [T]his. [C]ountry.
But what is happening, and I can say it a lot more than you
because I’ve lived longer. It’s almost as America’s assimilating
to THOSE countries.
Arnold’s speech continued, discussing the Cuban Missile Crisis and the
Pope’s opposition to the construction of a wall at the United States’ southern
border before digressing into a discussion of a local sex offender in the news.
Okay, so keep you[r] house when the guy next to you has to put
a sign out saying that he’s a sex offender. And welcome him to
the neighborhood. That’s fine. And maybe that person needs
that kind of welcome. And if you didn’t hear in Houston, there
was a—he was a Mariachi teacher. And the Principal[] also got
removed. She hired him, but she was paying him out of a
different account. Il[l]egal. The guy had about five counts of
molestation, lewd exposure to young people, and there he was
working in the school system. So you can say “Well, he needs
a second chance[.”] Tell that to the people that he abused.
Tell that to those kids.
5
Case: 20-20215 Document: 00515919207 Page: 6 Date Filed: 06/29/2021
No. 20-20215
In the days that followed, Arnold continued to exhibit hostility toward
Oliver and treat her more harshly than other students as a result of her refusal
to transcribe the Pledge, including by repeatedly moving her seat,
intentionally calling her by the wrong name, and making disparaging
comments about her accomplishments in extracurricular activities. Although
Arnold denies treating Oliver differently than other students and maintains
that he enforced his classroom rules evenly, the district court again found
that these facts are genuinely disputed, and we thus must assume that Arnold
singled Oliver out for hostile mistreatment as a result of her opposition to the
Pledge assignment.
In response to Oliver’s complaints, the Klein Oak assistant principal
and associate principal held another meeting with Arnold in which they
reminded him of the August 2017 meeting in which he was informed of
Oliver’s right to abstain from the Pledge. The principals instructed Arnold
to maintain neutrality in class discussions and to be sensitive to students’
rights regarding the Pledge, and they told him to refrain from interacting with
Oliver except as necessary. Arnold agreed to follow these instructions.
This agreement notwithstanding, hostilities between Arnold and
Oliver continued to increase when, the following month, Arnold learned that
Oliver had filed the initial complaint in the present lawsuit and named him
among the defendants. Arnold authored a document in response entitled
“The Truth Lies Herein,” in which he set forth a renunciation of what he
termed the “malicious accusations” and “trail of deception and blatant
falsehoods” in Oliver’s complaint.
Then, on November 1, 2017, Arnold played Christian music in class
at the beginning of a unit on suicide and stared at Oliver continuously as the
song played. Again, Arnold argues that there was a pedagogical purpose for
the music and that he has played it and other music for all of his classes. But
6
Case: 20-20215 Document: 00515919207 Page: 7 Date Filed: 06/29/2021
No. 20-20215
again, the district court found that these facts are genuinely disputed, and we
must assume that Arnold played the music as an expression of hostility
toward Oliver. Oliver’s counsel objected to the Christian music, and the
assistant and associate principals met with Arnold a third time, this time
reprimanding him for failing to follow the instructions he had agreed to and
for violating state and local rules and ethical standards regarding religious
neutrality.
B. District Court Proceedings
Oliver filed her last amended complaint on December 11, 2019, adding
those allegations recounted above that postdated her original complaint.
Pursuant to 42 U.S.C. § 1983, Oliver asserted claims that Arnold had violated
her First Amendment rights by attempting to compel her to transcribe the
Pledge and by retaliating against her for her refusal to do so, including by
giving her a zero on the assignment and giving a speech to the class that
compared people who declined to say the Pledge to communists, supporters
of Sharia law, and defenders of pedophilia. 3 Arnold filed a motion for
summary judgment arguing that, as a government actor, he was entitled to
qualified immunity.
On March 25, 2020, the district court entered a memorandum opinion
denying Arnold’s motion. 4 The court first noted that Oliver was not
3
Oliver also asserted claims against a number of other KISD employees and the
school district itself. The district court granted summary judgment to the other defendants
on various grounds, and Oliver’s separate appeal of these rulings is also currently pending
before this court. See Oliver v. Champion, No. 20-20438 (5th Cir. 2020).
4
Oliver had filed her own motion for summary judgment on her claims against
Arnold, asking that the district court rule there was no genuine dispute that Arnold had
violated her First Amendment rights and that he was not entitled to qualified immunity. In
its memorandum opinion, the court also denied Oliver’s motion. The court stated that
whether Oliver was entitled to summary judgment was “a closer question” than with
7
Case: 20-20215 Document: 00515919207 Page: 8 Date Filed: 06/29/2021
No. 20-20215
challenging the facial constitutionality of TEXAS EDUCATION CODE
§ 25.082, and the district court therefore presumed the statute was
constitutional and that it would not violate Oliver’s First Amendment rights
to require her to participate in the Pledge if her parent or guardian had not
made a written request that she be exempted. The court then examined
Arceneaux’s two emails to school officials to determine whether they
constituted effective requests to excuse Oliver from participating in the
Pledge pursuant to TEXAS EDUCATION CODE § 25.082(c).
The court found that Arceneux’s first, November 2015 email asking
that Oliver be moved out of her Journalism class was not an effective written
request because the email ultimately “propose[d] a course of action that did
not specifically request exempting Oliver from participating in the pledge.”
However, the court determined that Arceneaux’s second, November 2016
email was “clearly an effective exemption request” because it “effectively
communicated to [school officials] that she, as Oliver’s mother, wanted them
to protect Oliver’s constitutional right to abstain from the pledge.” The
court thus appeared to conclude that Arnold could not rely on TEXAS
EDUCATION CODE § 25.082(c) as a defense because his alleged conduct
occurred after Arceneaux’s second email.
As to the merits of Oliver’s claims against Arnold, the district court
determined that, “the Supreme Court made it clear in 1943, in West Virginia
State Board of Education v. Barnette, 319 U.S. 624 (1943), the First
Amendment forbids compelling saluting or pledging allegiance to the flag.”
This precedent means, the district court explained, that for purposes of
qualified immunity, “[a] public school student’s First Amendment right to
respect to Arnold but concluded that “the full record at trial will provide a more secure
basis for an accurate ruling.” The district court’s denial of Oliver’s motion is not at issue
in this appeal.
8
Case: 20-20215 Document: 00515919207 Page: 9 Date Filed: 06/29/2021
No. 20-20215
abstain from the Pledge of Allegiance is well, long, and clearly established.”
Similarly well established is the principle that “[a] school official engages in
unconstitutional retaliation when, substantially motivated by a student’s
protected speech, the official takes actions causing an injury that would ‘chill
a person of ordinary firmness from continuing’ the protected activity,” the
court continued, quoting Brinsdon v. McAllen Independent School District, 863
F.3d 338, 351 (5th Cir. 2017).
The district court then found that genuine disputes of fact existed
regarding whether Arnold assigned transcription of the Pledge with the
impermissible motive of requiring a statement of patriotism from his
students, and the court therefore concluded that Arnold was not entitled to
summary judgment on Oliver’s compelled speech claim. The court further
determined that “a reasonable jury could conclude that Arnold exhibited
hostility toward, and retaliated against, Oliver for refusing to write the
pledge, and that he threatened to give a zero to anyone who refused to write
the pledge (whether he acted on the threat or not).” “A jury could also
reasonably find that Arnold’s speech to the class and threat to punish refusal
to write the pledge with a zero would chill a person of ordinary firmness from
exercising protected speech,” the district court concluded, which precluded
a grant of summary judgment on Arnold’s claim for First Amendment
retaliation. Arnold timely appealed.
II. ANALYSIS
Government officials who are sued for money damages under § 1983
are entitled to qualified immunity from liability unless their actions violated
a federal statutory or constitutional right and that right was clearly
established at the time of their conduct. Brinsdon, 863 F.3d at 347. “Another
articulation particularly for the school setting is that educators are entitled to
qualified immunity unless no ‘reasonable official’ would have deemed the
9
Case: 20-20215 Document: 00515919207 Page: 10 Date Filed: 06/29/2021
No. 20-20215
disputed conduct constitutional.” Id. (citing Morgan v. Swanson,
659 F.3d
359, 371 (5th Cir. 2011) (en banc)).
Students do not “shed their constitutional rights to freedom of speech
or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty.
Sch. Dist., 393 U.S. 503, 506 (1969). And while student’s First Amendment
rights “are not automatically coextensive with the rights of adults in other
settings,” Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 675, 682 (1986),
“[s]chool officials may only restrict . . . private, personal expression to the
extent it would ‘materially and substantially interfere with the requirements
of appropriate discipline in the operation of the school,’ or ‘impinge upon
the rights of other students.’” Swanson,
659 F.3d at 375 (quoting Tinker,
393
U.S. at 509).
Thus, as the district court noted, the Supreme Court has held since
the landmark 1943 decision in West Virginia State Board of Education v.
Barnette that the First Amendment prohibits compelling students to salute or
pledge allegiance to the American flag. “[T]he Barnette right to abstain from
the pledge” is well established enough that our court has previously
described a case in which it was violated as a “rare exception” to the trend
“that educators are rarely denied immunity from liability arising out of First–
Amendment disputes.” Morgan v. Swanson (“Swanson II”), 755 F.3d 757,
760 (5th Cir. 2014) (citing Holloman ex rel. Holloman v. Harland,
370 F.3d
1252 (11th Cir.2004)). It is also well established that a government official
violates the First Amendment by retaliating against a person for exercising
First Amendment rights—that is, by taking “adverse actions” that are
“substantially motivated against the plaintiffs’ exercise of constitutionally
protected conduct” that cause the plaintiff “an injury that would chill a
person of ordinary firmness from continuing to engage in that [protected]
activity.” Brinsdon,
863 F.3d at 351 (quoting Keenan v. Tejeda,
290 F.3d 252,
258 (5th Cir. 2002)).
10
Case: 20-20215 Document: 00515919207 Page: 11 Date Filed: 06/29/2021
No. 20-20215
This court generally reviews a district court’s ruling on a motion for
summary judgment de novo, applying the same standard as the district court.
Mack v. City of Abilene, 461 F.3d 547, 555 (5th Cir. 2006). However, an
exception to this general rule applies when a defendant appeals a denial of
qualified immunity at the summary judgment stage. See Colston,
146 F.3d at
284. Although our review is still de novo, we are limited in what aspects of
the district court’s ruling we are permitted to review.
Id.
A district court’s finding that the evidence is sufficient to create
genuine factual disputes is a preliminary ruling because the factual issues will
ultimately be resolved at trial, and it therefore is not a final order over which
28 U.S.C. § 1291 grants us appellate jurisdiction. See id.; Acoustic Sys., Inc. v.
Wenger Corp.,
207 F.3d 287, 290 (5th Cir. 2000). Nevertheless, qualified
immunity is not “a mere defense to liability,” but rather “an immunity from
suit,” and it would be effectively lost if a defendant were forced to defend at
trial against allegations that would not overcome qualified immunity even if
proven. Mitchell v. Forsyth,
472 U.S. 511, 526 (1985) (emphasis in original).
A district court’s decision that a given set of facts will overcome a
defendant’s qualified immunity if proven is therefore immediately appealable
under the collateral order doctrine.
Id. at 527 (citing Cohen v. Beneficial Indus.
Loan Corp.,
337 U.S. 541, 545 (1949)).
The interaction of these two jurisdictional principles means that,
when considering an appeal of a district court’s denial of a defendant’s
summary judgment motion that asserts qualified immunity, we must accept
that the evidence gives rise to the factual disputes identified by the district
court, and we may only review whether the version of those facts that is most
favorable to the plaintiff’s claim is sufficient to overcome qualified immunity.
See Colston, 146 F.3d at 284; Trent v. Wade,
776 F.3d 368, 376 (5th Cir. 2015)
(“[W]e cannot challenge the district court’s assessments regarding the
sufficiency of the evidence—that is, the question whether there is enough
11
Case: 20-20215 Document: 00515919207 Page: 12 Date Filed: 06/29/2021
No. 20-20215
evidence in the record for a jury to conclude that certain facts are true.”
(quoting Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc))). Put
another way, “[i]n deciding an interlocutory appeal of a denial of qualified
immunity, we can review the materiality of any factual disputes, but not their
genuineness.” Wagner v. Bay City,
227 F.3d 316, 320 (5th Cir. 2000).
While this appeal was pending before our court, Oliver filed a motion
to dismiss the appeal and for attorneys’ fees, arguing that Arnold’s appeal
was frivolous because the district court’s ruling centered on factual disputes
and this court lacks jurisdiction over interlocutory challenges to such
determinations. Oliver is correct that the limits on our jurisdiction foreclose
Arnold’s arguments.
Foremost among Arnold’s contentions on appeal are that the Pledge
assignment had a legitimate instructional purpose and he did not intend it to
instill or require patriotic belief, nor did he harass Oliver or treat her more
harshly than her classmates because she refused to complete the assignment.
However, what Arnold’s motivations were, whether he engaged in the
actions toward Oliver that she alleges, and how he treated other similarly
situated students are all quintessential questions of fact. See, e.g., Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1265 (5th Cir. 1991) (“[A]
party’s state of mind is inherently a question of fact which turns on
credibility. Credibility determinations, of course, are within the province of
the fact-finder.”); Kinney,
367 F.3d at 346 (“[T]he court decides that a
genuine issue of fact exists regarding whether the defendant(s) did, in fact,
engage in such conduct.”).
Arnold also repeatedly argues that Arceneaux did not submit a request
that Oliver be excused from participating in the Pledge. To be sure, whether
the text of the emails that the district court found Arceneaux sent constituted
an effective exemption request under TEXAS EDUCATION CODE
12
Case: 20-20215 Document: 00515919207 Page: 13 Date Filed: 06/29/2021
No. 20-20215
§ 25.082(c) is a question of statutory construction, which is a purely legal
matter that would fall within our limited appellate jurisdiction. See Kemp v.
G.D. Searle & Co., 103 F.3d 405, 407 (5th Cir. 1997) (“Questions of statutory
interpretation are questions of law and thus reviewed de novo.” (citing Estate
of Bonner v. United States,
84 F.3d 196, 197 (5th Cir.1996))). But Arnold
raises no arguments as to why Arceneaux’s emails did not satisfy the statute,
and arguments that are not raised on appeal are waived. Hidden Oaks Ltd. v.
City of Austin,
138 F.3d 1036, 1045 n.7 (5th Cir. 1998).
Instead, Oliver contends that Arceneaux stated in a deposition that
she never submitted an exemption request in writing because she thought the
school knew that she approved of Oliver abstaining from the Pledge and
because no school official had asked her for a written statement. But, as the
district court concluded, “Arceneaux[’s] . . . subsequent testimony does not
negate the November 2016 email’s legal effect under the Texas pledge
statute.” At best, the testimony creates a factual dispute over whether
Arceneaux in fact sent the email in question, and, again, we lack jurisdiction
to review the district court’s factual determinations. 5 See Trent, 776 F.3d at
376.
5
Arnold invokes our court’s rule that we do “not allow a party to defeat a motion
for summary judgment using an affidavit that impeaches without explanation sworn
testimony.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996). The copies
of the emails Oliver submitted into evidence are neither affidavits nor impeachment
evidence, but rather documentary evidence that bears directly on the question of whether
Arceneaux submitted a written § 25.082(c) request. More fundamentally, however,
whether we allow testimony to be impeached bears only on whether that testimony is true
or not, which is a factual issue over which we lack jurisdiction. See Int’l Shortstop, Inc.,
939
F.2d at 1265 (“Credibility determinations, of course, are within the province of the fact-finder.”). The district court found that Arceneaux sent the emails in question, and we must
accept this determination. See Colston,
146 F.3d at 284. And because Arnold does not raise
any cognizable challenge to the district court’s ruling that Arceneaux submitted a valid
13
Case: 20-20215 Document: 00515919207 Page: 14 Date Filed: 06/29/2021
No. 20-20215
Arnold’s legal arguments are inextricably intertwined with his
challenges to the facts that the district court found to be disputed, over which
we lack jurisdiction. He contends that Oliver’s compelled speech claim fails
because Arceneaux did not submit a § 25.082(c) request and Oliver was thus
required by state law to participate in the Pledge; because the Pledge
assignment was given for pedagogical purposes, and, under Brinsdon v.
McAllen Independent School District, 863 F.3d 338 (5th Cir. 2017), it does not
violate clearly established law to require a student to participate in the Pledge
for didactic reasons; and, relatedly, because a refusal to complete a class
assignment given for pedagogical reasons is not expressive conduct protected
by the First Amendment. But, as we have stated, the district court found
these facts to be genuinely disputed, and we must assume due to the posture
of this appeal that Arceneaux did submit a valid § 25.082(c) request and that
Arnold gave the Pledge assignment “for the purposes of teaching, fostering[,]
and perpetuating the ideals, principles[,] and spirit of Americanism,”—the
intent the Supreme Court found impermissible in Barnette.
319 U.S. at 625.
Similarly, Arnold argues that Oliver does not have a valid claim for
retaliation because her refusal to complete the Pledge assignment was not
constitutionally protected activity, because “the evidence” shows he did not
harass her or treat her differently than other students, and because any
adverse actions he took were not motivated by Oliver’s refusal to complete
the Pledge assignment. But, again, because the district court found these
facts to be genuinely disputed, we must assume for purposes of this appeal
that Arnold gave the Pledge assignment for impermissible purposes,
rendering Oliver’s refusal protected activity; that Arnold singled Oliver out
and treated her differently than other students; and that these adverse actions
§ 25.082(c) request, we need not and do not consider how our analysis would differ had no
request been submitted.
14
Case: 20-20215 Document: 00515919207 Page: 15 Date Filed: 06/29/2021
No. 20-20215
were motivated by hostility to Oliver’s refusal to complete the Pledge
assignment. See Colston, 146 F.3d at 284. We do not have jurisdiction to
reexamine “the evidence” as Arnold urges. And Arnold raises no argument
as to why, if he did engage in the actions toward Oliver that she alleges and
he was substantially motivated by opposition to Oliver’s refusal to complete
the Pledge assignment, they nonetheless failed to cause Oliver “an injury that
would chill a person of ordinary firmness from continuing to engage in that
[protected] activity” Brinsdon,
863 F.3d at 351 (quoting Keenan,
290 F.3d at
258). And, again, arguments that are not raised on appeal are waived. Hidden
Oaks,
138 F.3d at 1045 n.7.
Our dissenting colleague argues that Arnold simply gave an
unconventional teaching assignment that no clearly established law prohibits.
Dissent at 3. He further posits that, in holding that Arnold’s conduct, if
proven, would violate clearly established rights, we open the door for
students to sue over any classwork they deem offensive. Dissent at 3-5. But
the dissent fails to heed the limits on our jurisdiction in this context and to
consider the facts in the light most favorable to Oliver. In this appeal, the
“impure motive” we must assume Arnold had for giving the Pledge
assignment is not simply “foster[ing] respect for the Pledge” as the dissent
contends. Dissent at 3. Instead, because the district court found that
Arnold’s motives are genuinely disputed, we must presume here that Arnold
was requiring his students to make precisely the sort of written oath of
allegiance that the dissent acknowledges would be impermissible. Dissent at
3. We are not permitted to look beyond the district court’s findings of
disputed facts to conclude that, based on the evidence in the record, Arnold
was instead merely employing a “curious teaching method.” Dissent at 2.
The dissent also places much weight on the fact that what is at issue
here is a “written assignment.” Dissent at 1, 3. But the Court in Barnette
stated, “If there is any fixed star in our constitutional constellation, it is that
15
Case: 20-20215 Document: 00515919207 Page: 16 Date Filed: 06/29/2021
No. 20-20215
no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to confess
by word or act their faith therein.” 319 U.S. at 642 (emphasis added). It is
immaterial that, under the facts we must accept here, the required pledge was
a written oath rather than an oral one and that the consequence for noncompliance was an academic penalty rather than an overt disciplinary action.
Barnette clearly states that teachers and other school officials may not require
students to swear allegiance, and with the case in this posture, we must
assume that this is what Arnold did. Thus, there is no danger that our
decision will pave the way for students to file lawsuits over their being
required to study Dr. Suess or any of the other figures featured in the
scenarios the dissent imagines. Dissent at 4-5. Unless a teacher is requiring
students to swear their fealty and devotion to Dr. Suess and his teachings, the
assignments the dissent envisions are clearly not implicated by the present
case.
What remains is Oliver’s motion for attorneys’ fees for this appeal.
We, of course, follow the “American Rule” under which “[e]ach litigant
pays his own attorney’s fees, win or lose, unless a statute or contract provides
otherwise.” Peter v. Nantkwest, Inc., 140 S. Ct. 365, 370 (2019) (quoting
Hardt v. Reliance Standard Life Ins. Co.,
560 U.S. 242, 252–253 (2010)).
Oliver’s motion itself identified no source of authority that would permit us
to award attorneys’ fees, though in the conclusion of her response brief she
requests attorneys’ fees “pursuant to
42 U.S.C. Section 1983.” Although
§ 1983 itself does not authorize an award of attorneys’ fees,
42 U.S.C. § 1988
provides that “[i]n any action or proceeding to enforce a provision of
section[] . . . 1983 . . .of this title. . . the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney’s fee as part of the costs.” But
Oliver makes no separate argument as to why an award of attorneys’ fees is
appropriate in this case, and “[t]he question of which party is entitled to fees
16
Case: 20-20215 Document: 00515919207 Page: 17 Date Filed: 06/29/2021
No. 20-20215
under Section 1988 ‘require[s] an inquiry separate from the decision on the
merits.’” Zimmerman v. City of Austin, 969 F.3d 564, 568 (5th Cir. 2020)
(quoting White v. N.H. Dep’t of Emp’t Sec.,
455 U.S. 445, 451 & n.13 (1982))
(second alteration in the original). In the absence of any specific argument
regarding attorneys’ fees, we decline to exercise our discretion to award
them.
III. CONCLUSION
Based on the foregoing, Oliver’s motion for attorneys’ fees is
DENIED. Oliver’s motion to dismiss the appeal for lack of jurisdiction is
GRANTED, and the appeal is DISMISSED.
17
Case: 20-20215 Document: 00515919207 Page: 18 Date Filed: 06/29/2021
No. 20-20215
Stuart Kyle Duncan, Circuit Judge, dissenting:
I respectfully dissent.
The law forbids a public school teacher from compelling students to
recite the Pledge of Allegiance. W. Va. State Bd. of Educ. v. Barnette, 319 U.S.
624, 627, 642 (1943). But nothing like that is going on here. As part of an in-class exercise, a sociology teacher asked students to see if they could write
the Pledge’s words from memory. This assignment followed one where
students would ponder the lyrics to Bruce Springsteen’s “Born in the
U.S.A.” No case says this teaching method—unorthodox though it may be—
violates the First Amendment. That is true whatever the teacher’s motives
for giving the assignment. So, we should dismiss this case based on qualified
immunity now. The majority’s contrary approach, which sends the case to
trial, would make countless classroom assignments fodder for federal
lawsuits whenever a student claims offense. Indeed, so far as I can tell, this is
the first decision by any federal circuit permitting a student to challenge a
written assignment as “compelled speech” under the First Amendment. We
should not go down that road.
The genesis of Oliver’s First Amendment claims was an assignment,
repeated yearly, where Arnold would ask his sociology students to see if they
could “transcribe the words of the Pledge of Allegiance” within a set time
period. Ante at 4. The exercise was paired with another where the students
would listen to, and then discuss, “Born in the U.S.A.” The majority
concludes the Pledge assignment implicates Barnette, which famously held
that “the First Amendment prohibits compelling students to salute or pledge
allegiance to the American flag.” Ante at 10. The majority further holds that
material fact disputes prevent our resolving Arnold’s qualified immunity
claim on interlocutory appeal—specifically, disputes over whether Arnold
gave the assignment “for pedagogical purposes” or instead for the
18
Case: 20-20215 Document: 00515919207 Page: 19 Date Filed: 06/29/2021
No. 20-20215
“impermissible motive of requiring a statement of patriotism from his
students.” Ante at 14, 9. I disagree on both points.
Qualified immunity yields only where an official violates “clearly
established law,” meaning binding authority “that defines the contours of
the right in question with a high degree of particularity.” Morgan v. Swanson,
659 F.3d 359, 371–72 (5th Cir. 2011) (en banc). But Barnette does not provide
the “particularity” to settle Oliver’s First Amendment claims. In Barnette,
the Pledge figured in a distinct context: students were made to join in a
“ceremony” where they stood and “salut[ed]” the American flag while
reciting the Pledge. Barnette, 319 U.S. at 626–30 & n.2. By contrast, the
Pledge assignment here involves nothing like Barnette’s coerced ceremonial
recitation. Rather, the undisputed record shows students would
“transcribe” the Pledge’s words as part of a timed in-class exercise.
This is a curious teaching method, but no case cited to us addresses
whether it violates the First Amendment. The majority mentions our
Barnette-related decision in Brindson, ante at 14, but that case addressed a
mock exercise where students had to “mimic the pledge ceremony that
Mexican citizens follow” by reciting the Mexican Pledge of Allegiance and
singing the Mexican National Anthem. Brindson v. McAllen Indep. Sch. Dist.,
863 F.3d 338, 343 (5th Cir. 2017). Like Barnette, Brindson involved a coerced
pledge recitation, not an assignment where students write a pledge’s words.
The majority concludes we lack jurisdiction to decide this issue
because of disputes about Arnold’s motives for giving the assignment. Ante
at 14–15. Like the district court, it relies on an in-class monologue Arnold
gave the day after the assignment—a stream-of-consciousness rant ranging
from the Pledge to communism, the Pope, the Cuban Missile Crisis, sex
offender laws, and the Day of the Dead (the Mexican holiday, not the zombie
movie). Ante at 4–6. This appeal being interlocutory, I assume a jury could
19
Case: 20-20215 Document: 00515919207 Page: 20 Date Filed: 06/29/2021
No. 20-20215
therefore infer that Arnold gave the assignment hoping to inculcate respect
for the Pledge. See, e.g., Cunningham v. Castloo, 983 F.3d 185, 190 (5th Cir.
2020) (on interlocutory appeal of qualified immunity denial, “[w]e lack
jurisdiction to review the genuineness of the factual disputes the district court
identified”). But nothing prevents us from deciding whether that dispute is
material to qualified immunity. See
id. (“We may of course decide whether
the factual disputes the district court said were material are in fact material.”)
(citing Melton v. Phillips,
875 F.3d 256, 261 (5th Cir. 2017) (en banc)). I fail to
see how it is.
Let’s assume Arnold had an impure motive for giving the Pledge
assignment. What decision clearly establishes that, because of that motive,
he violated the First Amendment? Indeed, what decision says that asking
students to write down words as part of a class exercise constitutes “compelled
speech” in the first place? 1 To be sure, one can conjure up a scenario where
a teacher makes students “swear allegiance” to the flag through a written
oath. But no one pretends that is the situation here. 2 Even if Arnold hoped
1
Cf. Wood v. Arnold, 915 F.3d 308, 318–19 (4th Cir. 2019) (assignment asking
history students to list the “Five Pillars” of Islam “did not require [the plaintiff student]
to profess or accept the tenets of Islam”); C.N. v. Ridgewood Bd. of Educ.,
430 F.3d 159, 187
(3d Cir. 2005) (“A student may . . . be forced to speak or write on a particular topic even
though the student might prefer a different topic.”); Axson-Flynn v. Johnson,
356 F.3d 1277
(10th Cir. 2004) (declining to adopt a First Amendment standard that would “effectively
give each student veto power over curricular requirements, subjecting the curricular
decisions of teachers to the whims of what a particular student does or does not feel like
learning on a given day”); see also, e.g., Mahanoy Area Sch. Dist. v. B.L., --- S. Ct. ---,
2021
WL 2557069, at *8 (U.S. June 23, 2021) (Alito, J., concurring) (“In a math class, for
example, the teacher can insist that students talk about math, not some other subject.”).
2
See, e.g., Torcaso v. Watkins, 367 U.S. 488, 491 & n.4 (1961) (discussing tender to
Lord Baltimore by the Colony of Virginia of the “oaths of supremacy and allegiance,” and
recounting that Baltimore, “who making profession of the Romish Religion, utterly refused
to take the same”). One can also imagine a written classroom assignment so contrary to a
20
Case: 20-20215 Document: 00515919207 Page: 21 Date Filed: 06/29/2021
No. 20-20215
to foster respect for the Pledge, that does not make him a latter-day Henry
VIII.
Finally, consider the implications of the majority’s approach. It sends
to trial a § 1983 claim based on a student’s objection to a written assignment,
merely because there is a question about the teacher’s motive for giving it.
One can imagine where this approach, if taken in a precedential opinion,
might lead. It is not a happy place.
We live in an easily offended age. Even Dr. Seuss is controversial. 3
Suppose, for instance, a teacher asks students to memorize and write down
these well-known passages:
We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the
pursuit of Happiness. That to secure these rights,
Governments are instituted among Men, deriving their just
powers from the consent of the governed[.]
student’s religious beliefs that making him do it would violate the Free Exercise Clause—
for instance, an assignment to write the words, “Jesus was not the Son of God” or “Praise
be Quetzalcoatl.” See, e.g., Christopher F. Rufo, Revenge of the Gods (discussing a proposed
“ethnic studies curriculum” in California that “urges students to chant to the Aztec deity
of human sacrifice”), https://christopherrufo.com/revenge-of-the-gods/ (last visited June
24, 2021). Again, we do not have anything like that here.
3
See Seussville.com (reporting Dr. Seuss Enterprises’ “decision . . . to cease
publication and licensing of the following titles: And to Think That I Saw It on Mulberry
Street, If I Ran the Zoo, McElligot’s Pool, On Beyond Zebra!, Scrambled Eggs Super!, and The
Cat’s Quizzer” because “[t]hese books portray people in ways that are hurtful and
wrong”), available at https://www.seussville.com/statement-from-dr-seuss-enterprises/
(last visited June 24, 2021). See also Philip Nel, Was the Cat in the Hat
Black? The Hidden Racism of Children’s Literature and the Need
for Diverse Books 32 (2017) (“The Cat in the Hat is . . . racially complicated,
inspired by blackface performance, racist images in popular culture, and at least one real
African American.”).
21
Case: 20-20215 Document: 00515919207 Page: 22 Date Filed: 06/29/2021
No. 20-20215
Unanimous Declaration of the Thirteen United States
of America (July 4, 1776). The words teem with occasions for offense:
they are arguably sexist (“Men”) and religious (“Creator”), and were
written by a notorious slaveholder. What if there were evidence the teacher
gave the assignment to inculcate respect for Thomas Jefferson? Lawsuit.
Or suppose a teacher, hoping to pass on the legacy of Dr. Martin
Luther King, Jr., asks students to transcribe his most famous speech, which
contains this passage:
I have a dream that my four little children will one day live in a
nation where they will not be judged by the color of their skin
but by the content of their character.
Martin Luther King, Jr., I Have a Dream: Address to the
March on Washington for Jobs and Freedom (Aug. 28, 1963).
Today, this aspiration of colorblindness has come under fire. 4 May an
offended student sue the teacher for being asked to copy Dr. King’s words?
Under the majority’s approach, yes.
I respectfully dissent.
4
See, e.g., Ibram X. Kendi, How to be an Antiracist 10 (2019) (“The
language of color blindness . . . is a mask to hide racism.”); Cornel West, Foreword to
Michelle Alexander, The New Jim Crow: Mass Incarceration in the
Age of Colorblindness x (2010) (“In fact, the very discourse of colorblindness
. . . has left America blind to the New Jim Crow.”).
22
