Dоug MORGAN; Robin Morgan; Jim Shell; Sunny Shell; Sherrie Versher; Christine Wade, Plaintiffs-Appellees, v. Lynn SWANSON, In Her Individual Capacity and as Principal of Thomas Elementary School; Jackie Bomchill, In Her Individual Capacity and as Principal of Rasor Elementary School, Defendants-Appellants.
No. 09-40373
United States Court of Appeals, Fifth Circuit
June 30, 2010
610 F.3d 877
Based upon our own reading of the record, we conclude that the bankruptcy court carefully analyzed the statements made by Paige‘s counsel at the sanctions hearing and reasonably exercised its discretion in deciding that judicial estoppel was not warranted. Against this backdrop and given that our review of the use of judicial estoppel is for abuse of discretion only, Hopkins, 545 F.3d at 347, we cannot say that the bankruptcy court abused its discretion in disallowing judicial estoppel in this case.
IV. Conclusion
Because the bankruptcy court properly granted Paige‘s motion for summary judgment, we AFFIRM.
William Charles Bundren (argued), Wm. Charles Bundren & Associates, Frisco, TX, Hiram S. Sasser, Liberty Legal Institute,
Thomas Phillip Brandt (argued), Joshua Alan Skinner, Fanning Harper Martinson Brandt & Kutchin, P.C., Dallas, TX, Charles J. Crawford, Abernathy, Roeder, Boyd & Joplin, P.C., McKinney, TX, for Defendants-Appellants.
Christopher Blewer Gilbert, Thompson & Horton, L.L.P., Houston, TX, for Tex. Ass‘n of School Boards Legal Assistance Fund, Amicus Curiae.
Paul D. Clement (argued), Ashley Charles Parrish, King & Spalding, L.L.P., Washington, DC, for Gathie Barnett Edmonds, Marie Barnett Snodgrass, Amici Curiae.
Before DeMOSS, ELROD and HAYNES, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
This appeal arises from the district court‘s denial of Lynn Swanson and Jackie Bomchill‘s (Appellants) Second Motion to Dismiss based on qualified immunity. Appellants argue, as they did below, that the First Amendment does not apply to elementary school students. Because it has been clear for over half a century that the First Amendment protects elementary school students from religious-viewpoint discrimination, we AFFIRM.
I.
Appellees allege that “[Appellants] have in the past, and continue in the present, to ban the distribution of religious messages by [Appellees] and other students while on school property,” thereby resulting in “religious viewpoint discrimination in violation
A.
Each elementary school classroom in Plano Independent School District (Plano ISD)2 hosts a “winter break” party at which students, if they so choose, may exchange “goodie bags” containing gifts. At the December 2001 winter break party at Thomas Elementary School, Michaela Wade gave each of her classmates a goodie bag containing, among other items, a pencil inscribed with the phrase “Jesus is the Reason for the Season.” Each gift bag was sealed and had a sticker affixed to it which addressed the bag to a specific student in Michaela‘s class. Before allowing her to distribute the goodie bags containing the pencils, the school officials searched her gift bags in order to determine whether they contained any “religious” material. Upon discovering the pencils, Plano ISD officials confiscated and banned them from school property.
Swanson, the principal at Thomas Elementary School, called Michaela‘s mother, Christine Wade, to inform her of the school‘s action and to explain that the candy canes that were also in Michaela‘s goodie bags were acceptable gifts but the pencils were unacceptable because they were inscribed with a religious message. Swanson informed Christine Wade that Plano ISD administrators specifically instructed her that the school district would not allow Michaela to pass out pencils with the phrase “Jesus is the Reason for the Season” affixed to them because of the religious viewpoint of the gift. At the 2001 winter break party, school оfficials permitted Michaela to hand out candy canes without a religious message attached and permitted her classmates to pass out goodie bags containing gifts inscribed with secular phrases and symbols, such as snowmen and snowflakes. Neither Michaela nor her younger sister Bailey attempted to distribute gifts at their respective winter break parties in subsequent years because they believed that Swanson (and Plano ISD) would continue to prohibit their distribution of religious materials.3
B.
Plano ISD, Swanson, and other school officials at Thomas Elementary School also
Several weeks before the winter break party, Jonathan‘s parents, Doug Morgan and Robin Morgan, met with Swanson in order to determine whether she would permit students to exchange gifts bearing “religious” messages. The Morgans discussed with Swanson how
students and parents are being interrogated by school officials at the “winter break” parties as to whether or not the contents of their gift or “goodie” bags—which they have brought to school to distribute to their classmates during the “winter break” party—contain any religious viewрoint, religious references or religious message and if the students or their parents acknowledged that the gift bags do contain religious messages or religious viewpoint materials, the bags are then confiscated by school officials and are banned from the classroom and prohibited from being distributed by the students while they are on school property. Swanson affirmed that those actions of school officials have occurred in the past and will occur in the future.
Swanson further emphasized that students were forbidden from using the term “Christmas” in conjunction with any school event or activity (including writing “Merry Christmas” on greeting cards sent to retirement homes) and affirmed that the school would permit secular gifts to be distributed between students at the winter break parties but would prohibit religious-viewpoint messаges and gifts of a religious nature.
On the day of the party, Jonathan and his father unsuccessfully attempted to meet with Swanson and then proceeded to Jonathan‘s classroom. Jonathan‘s teacher met them at the door and prevented Jonathan from bringing his goodie bags into the classroom to exchange with his classmates because they contained “religious” messages. Once Swanson arrived at Jonathan‘s classroom and was apprised of the situation, she immediately informed the Morgans that Jonathan could place his goodie bags in the school library or he could distribute his gift bags on a public sidewalk off of school property. All of Jonathan‘s other classmates were allowed to exchange gift bags inside the classroom.4 Swanson only prohibited students from exchanging materials that contained a “religious” viewpoint. Swanson allowed students to exchange other materials,5 and, other than noting the “religious” nature of the materials, Swanson offered no other justification for her censorship of Jonathan‘s speech.
C.
In January 2004, “[w]hile at school, but during non-curriculum times and with no
D.
Plano ISD permits students to celebrate their birthdays with parties at school. Students with summer birthdays may celebrate their half-birthdays during the school year with their classmates while at school. Celebrants often distribute snacks and small gifts to their classmates. For example, students have distributed bookmarks with printed messages, key rings with words and symbols, bracelets, and pencils with various words and symbols. The parties are celebrated during “non-curriculum times” at school—“primarily at the end of the lunch period or during a snack break between instructional time.”
For her half-birthday party, on January 16, 2004, Stephaniе wanted to give her classmates brownies along with two pencils: one inscribed with the word “moon” and another inscribed with the phrase “Jesus loves me this I know for the Bible tells me so.” Stephanie‘s mother, Sherrie Versher, unsuccessfully attempted to meet with Principal Bomchill prior to the party to discuss the snacks and gifts, so on the day of the party, she took the pencils and brownies to the school‘s office and requested to see Bomchill. Upon arriving, Sherrie Versher received a letter accusing her of distributing material to students on school property and threatening that “law enforcement officials” would be called to arrest her.6 Bomchill also accused Sherrie Versher of distributing religious-viewpoint materials to students at school.
Furthermore, Bomchill threatened that, if Steрhanie distributed any more religious-viewpoint material while on school property, the school would call the police and Stephanie “would be in trouble.” Bomchill allowed Stephanie to distribute the brownies and the “moon” pencils but not the “Jesus” pencils. According to Bomchill, such “religious” material (i.e., the tickets and “Jesus” pencils) can only be distributed “outside of the school building.” Accordingly, Stephanie‘s mother removed the “Jesus” pencils from the tie wrapping the brownies and brought the brownies and “moon” pencils to Stephanie so that she could give them to her classmates during her half-birthday party in the school cafeteria during lunch break.
E.
When Sherrie Versher arrived in the afternoon to pick Stephanie up from school, she observed her daughter “amongst a small group of her classmates outside of the school building on the sidewalk and lawn” giving the “Jesus” pencils to her friends after school. As Stephanie was attempting to give a pencil to one of her close friends, Bomchill grabbed her by the shoulder, took the pencil away from
II.
This court has jurisdiction to review the district court‘s denial of Appellants’ motion to dismiss based on qualified immunity under
Here, Appellants’ motion to dismiss before the district court is based on a claim of qualified immunity, which the Supreme Court has held “is an immunity from suit rather than a mere defense to liability.” Mitchell, 472 U.S. at 526. Where the defense is raised in a
III.
Qualified immunity does not provide officials with a license to engage in lawless conduct. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). Rather, “[w]here an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action.” Id. (footnote omitted). Qualified immunity thus shiеlds government officials performing discretionary functions from individual liability for civil damages
Appellants argued before the district court that (1) “the United States Constitution does not prohibit viewpoint discrimination against religious speech in elementary schools” and (2) Appellees’ claims “should be dismissed because [Appellees] have failed to allege any conduct of these [Appellants] which constitutes a violation of [Appellees‘] clearly established constitutional rights.” The district court adopted the magistrate judge‘s report denying Appellants’ Motion to Dismiss, which correctly found that “a child‘s right to freedom of expression is not forfeited simply because of her age,” and that this right is clearly established in light of “the specific context of the case.” Appellants allege that the district court erred in denying the motion to dismiss based on qualified immunity because “[t]he First Amendment is not implicated by restrictions on student-to-student distribution of non-curricular materials by elementary school students to their classmates.”9 In the alternative, Appellants allege that the 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.”
IV.
The issues before this court are straightforward and limited. This court is not tasked with determining whether Appellants’ conduct actually violated Appellees’ constitutional rights, because at this juncture, we must accept Appellees’ 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 (1969), or because of its potential to subvert the school‘s educational mission, see Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). Because Appellants asserted qualified immunity in a motion to dismiss, this court must accept as true Appellees’ allegation that their actions “did not cause substantial and material disruption of school operations.” 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 (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.10
A.
Appellants contend that “neither the Supreme Court nor this Court has ever ex-
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.
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 Barnett11 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 elementаry school students. Id. at 630, 633, 644 (describing the plaintiffs as “children” and “little children“).
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 (1940), which involved a ten-year-old child. Id. at 591; see also Bowen v. Roy, 476 U.S. 693, 705 (1986) (stating that Barnette involved “young children at elementary and second-
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 Rights, “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; see also Wallace v. Jaffree, 472 U.S. 38, 51 (1985) (citing Barnette, 319 U.S. at 633-34, 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. 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. 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.
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 Suрreme 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
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.12
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 (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 (1995) (“It is axiomatic that the government may not regulate speech basеd 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 (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 (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).13 In addition, this court has already observed in a related case that elеmentary 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 covered protected by First Amendment), cert. denied, 561 U.S. ___, 130 S.Ct. 3503, ___ L.Ed.2d ___, 2010 WL 1004558 (2010).
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
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 estab-
V.
Appellees have alleged a violation of clearly established law; therefore, Appellants are not entitled to qualified immuni-
Wendell Keith WHITE, Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
No. 06-20736.
United States Court of Appeals, Fifth Circuit.
June 30, 2010.