Oliver v. Arnold
3 F.4th 152
| 5th Cir. | 2021Background
- Texas law requires daily recitation of the Pledge in public schools but permits written parental opt-outs; Klein ISD's policy tracked the statute.
- Student Mari Leigh Oliver, who objects to the Pledge on religious and racial-justice grounds, had prior complaints by her mother to school officials about harassment over nonparticipation.
- In 2017 teacher Benjie Arnold assigned students to transcribe the Pledge; Oliver refused and drew a line. Arnold allegedly threatened zeros, delivered a hostile classroom speech, and thereafter treated Oliver worse than other students (seat moves, name‑calling, Christian music in class).
- The district court found genuine disputes of fact (including the teacher’s motive and whether a valid parental written exemption was submitted) and denied Arnold summary judgment on First Amendment compelled‑speech and retaliation claims, concluding Barnette and retaliation law were clearly established.
- Arnold appealed the denial of qualified immunity; Oliver moved to dismiss the interlocutory appeal for lack of jurisdiction. The Fifth Circuit granted the motion, dismissing the appeal and denying Oliver’s request for appellate attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Compelled speech: Did the Pledge transcription assignment unconstitutionally compel speech? | Oliver: assignment was intended as a mandatory pledge and thus violated Barnette. | Arnold: assignment was pedagogical (didactic exercise), not compelled patriotic speech. | Court: Must accept district court’s assumed facts favoring Oliver; under those facts Barnette governs—factual disputes preclude resolving immunity on appeal. |
| 2) Retaliation: Did Arnold retaliate against Oliver for refusing to complete the assignment? | Oliver: post‑assignment threats, hostile speech, and disparate treatment were motivated by her protected refusal and would chill an ordinary person. | Arnold: he treated students evenly and was not motivated by retaliation; conduct was permissible classroom management. | Court: On the assumed facts favoring Oliver, a reasonable jury could find actionable retaliation; dispute is for trial, not interlocutory appellate resolution. |
| 3) Exemption request: Was there a valid written parental opt‑out under Tex. Educ. Code §25.082(c)? | Oliver: her mother’s Nov. 2016 email effectively asked school to protect Oliver’s right not to pledge. | Arnold: contends no valid written exemption was submitted; later testimony allegedly contradicts the email. | Court: The district court found the 2016 email constituted a valid exemption; appellant did not challenge that legal conclusion, and credibility disputes are factual and not reviewable on interlocutory appeal. |
| 4) Qualified‑immunity interlocutory appeal jurisdiction: May this court reexamine disputed facts to decide immunity now? | Oliver: No; appellate court lacks jurisdiction to reweigh or decide genuineness of factual disputes on interlocutory qualified‑immunity appeals. | Arnold: asks court to resolve motive and credibility issues and grant immunity now. | Held: Appeal dismissed for lack of jurisdiction — appellate review cannot reexamine factual-genuineness findings; must assume plaintiff‑favorable facts and decide only legal sufficiency. |
Key Cases Cited
- West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (First Amendment forbids compelling students to salute or pledge allegiance)
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (students retain First Amendment rights at school subject to material‑and‑substantial disruption limits)
- Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d 338 (5th Cir. 2017) (retaliation standard and school‑context First Amendment analysis)
- Colston v. Barnhart, 146 F.3d 282 (5th Cir. 1998) (limits on appellate jurisdiction to reexamine factual disputes in interlocutory qualified‑immunity appeals)
- Behrens v. Pelletier, 516 U.S. 299 (1996) (procedural principles on immediate appeals of qualified‑immunity rulings)
- Mitchell v. Forsyth, 472 U.S. 511 (1985) (qualified immunity is an immunity from suit, permitting immediate appeal of some rulings)
- Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (educators entitled to qualified immunity unless no reasonable official would deem conduct constitutional)