*1 HOLLOMAN, on behalf of and Michael SILVERS, Appellee, Nancey Plaintiff - son, Michael Next Friend of his HOLLOMAN, Plaintiff-Appellant, v. v. PICTURES, Entertainment SONY Allred, George HARLAND, Fawn Appellant. Inc., Defendant - Defendants-Appellees. No. 01-56069. Holloman, Jr., Plaintiff- Michael Appellant, Appeals, Court of United States Ninth Circuit. County Education, Board of Walker 9, 2004.
June Defendant-Appellee. 01-13864, Nos. 01-15094. Glaser, Glaser, Los Gelfand & Steven CA, Angeles, Plaintiff-Appellee. Appeals, Court of United States Eleventh Circuit. Esq., Proskauer Rauchberg, Ronald S. May Block, York, NY, Rose, LLP, New Simon LLP, George P. Proskauer Rose Esq., Shatz,
Schiavelli, Esq., Esq., Benjamin G. CA, Smith, LLP, Jon Angeles, Los Reed Rose Baumgarten, Esq., A. Proskauer DC, LLP, Defendant-Ap- Washington, pellant.
ORDER SCHROEDER, Judge. Chief majority nonre- the vote of a
Upon court, regular judges cused active by the that this case be reheard is ordered Rule 35- pursuant court to Circuit en banc three-judge panel opinion shall not 3. The court or precedent by or to this be cited as Circuit, any court of the Ninth district adopted by extent the en except to the court. banc *7 AL, Tatum, Jr., Clyde Jasper,
Charles for Holloman. Robertson, Laird, Laird &
Phillip A. Robertson, P.C., Laird & Russell Brown AL, P.C., for Defendants- Wiley, Jasper, Appellees. TJOFLAT,
Before WILSON *, Judges. Circuit COWEN TJOFLAT, Judge: Circuit
I. Holloman, a student at former
Michael County, High Parrish School Walker Alabama, against § 1983 suit Fawn filed a Allred, government his economics Harland, teacher; prin- the school George County Board of cipal; and Walker *8 (“School Board”), over- Education rights that his He claimed saw the school. Speech First Amendment’s under the Allred and when were violated Clause silently raising him for punished Harland instead daily flag salute during fist the his Pledge Allegiance reciting the claims He further of his class. the rest * Cowen, designation. United States Honorable Robert E. Circuit, sitting by Judge Circuit for the Third rights
that his Establishment Clause were by daily Allred’s “ritual” of con- violated taught Allred her Economics and Gov- ducting prayer. a silent moment of He in period ernment class the first of each legal equitable sought both relief. day, during Pledge which time the of Alle- granted summary The court district giance was recited over the school inter- judgment on both claims to Allred and system. customary com It was for stu- qualified immunity Harland on grounds. desks, to dents stand their with their separate opinion, granted summary hearts, hands over their and recite the Board, judgment concluding to the School pledge. that Holloman failed to articulate a viola- During flag May the salute on rights tion of his constitutional or demon- Hutto remained silent with his hands (as way strate which the Board pockets, causing without a disturbance. municipal governing entity) could be held why When Allred asked him he was not liable for the acts at issue here. Holloman salute, participating in flag the Hutto re- appeals rulings. both it, sponded say that he “didn’t want he Subpart A of Part examines the it, say didn’t have to and he hadn’t said it supporting Speech facts Holloman’s Clause stated, for a month.” Allred “You don’t B Subpart explains claim. his Establish say pledge want and the United allegations. Subpart ment Clause C sets Air Academy given you States Force has forth the framework of state statutes and scholarship?,” then continued class. regulations implicated by School Board At lunch day, Allred told Harland of claims, Subpart D delves say pledge. Hutto’s refusal to Har- into procedural history of this case very angry land became and met with greater Throughout detail. this discus Allred, Hutto, Principal and Vice Jason sion, reviewing grants because we are Adkins in his office. Harland told Hutto defendants, summary judgment to the disappointed he was in Hutto’s refusal light view evidence most favor flag, report to salute the and threatened to plaintiff. able to the See Johnson v. Gov the incident to both Hutto’s recruiter at Florida, 1287, 1292 ernor F.3d Air Academy Force as well as the Cir.2003).
Congressman who had recommended Hut- to to Academy. Harland also ordered A. apologize Hutto to Allred her class contends Allred and Har- refusing flag. salute the land violated his First Amendment (as speech incorporated free against day, Later that Harland went to Hutto’s (in through states physics the Fourteenth Amend- class which Holloman was a Clause) student) ment’s Due by treating Process “anyone and declared that who adversely him silently joined because he raised protest and refused to [Hutto’s] his fist flag say salute instead pledge or committed similar action reciting Allegiance.1 punished.” To un- would following day, happened, necessary what it is *9 Pledge derstand to Hutto recited the of Allegiance class, consider their treatment of another stu- day with the rest of the and the after dent, Hutto, John day Michael the before that he apologized to Allred and her stu- their confrontation with Holloman. dents. "Pledge Allegiance" "flag
1. We use the interchangeably. terms and salute” B. and Gov- began Allred her Economics day after flag salute on During every day by asking, class almost ernment incident, stood with Holloman the Hutto requests?” anyone any prayer have “Does did Allred’s.class, but other students dedica- offered various her students After In- Allegiance. not recite tions, of si- a moment Allred would hold in the air his fist stead, silently raised he mo- frequently opened this lence. Allred class recited the rest while by saying pray,” “Let us of silence ment over, sat he pledge once pledge; All- by saying “Amen.” often ended and say He did not everyone else. like down over the 1999- explicitly states that red students, dis- any other anything, touch year, practice became school this class, view of anyone’s or obstruct rupt her told students daily “ritual.” She never however, Allred, immediately flag. free to leave the room they were class, saying him in front of the chastised or the prayer requests her during either and “dis- inappropriately had acted that he prayer. silent subsequent moment of “disap- and that she respectfully],” class her then started She pointed.” Adkins sat in on day, Principal One Vice fashion. normal phe- personally observed class and her to be- attempted Allred When nomenon. Harland day, Allred informed Later that lesson, of her stu- one gin her economics summoned happened, and Harland of what reminded Allred raised her hand and dents principal’s and Holloman into Allred her custom- forgotten had to elicit that she had that he explained Holloman office. At that Allred requests. point, ary prayer happened protest “in what his fist raised class, then requests from the prayer took Holloman “how Harland told to [Hutto].” by saying, of silence a moment commenced was, he felt that and that he disappointed occasion, at pray.” us On another “Let teaching Holloman failed Michael he had silence, of the moment the conclusion He and values.” morals responsibility, students to one of her permitted Allred that he would Holloman also informed the Bible. passage aloud a read days’ detention to serve three have after he diploma until not receive his could C. addition, In
completed punishment. his apologize Holloman to required Harland did not occur The events this case Har- left class. When Allred’s legis- state the Alabama vacuum. office, Harland land’s called required the enacted a statute lature mother, was too mad explaining “that he and all local Board Education State the time upset punish Michael boards hurt he Michael.” because compre- ... a develop implement program education character Friday, there hensive graduation was that Since not less than grades for all consist year the school enough time left in was not day fo- per minutes of instruction ten his detentions while to serve for Holloman development cusing upon the students’ diploma being able to receive still cour- traits: following character of- day. consequently Harland graduation honesty, citizenship, age, patriotism, to receive opportunity fered Holloman kindness, others, fairness, and, respect agreed paddling instead. Holloman self-control, self-respect, cooperation, paddled by Har- watching, was with Allred tolerance, dili- courtesy, compassion, land. *10 plan cleanli- before it was forwarded to the State. generosity, punctuality, gence, cheerfulness, daily of ness, pride, respect school Aired contends that her moment environment, patience, creativi- ful- prayer partial for the silent was conducted loyalty, persev- and ty, sportsmanship, fillment of these character education re- shall plan quirements Each of instruction was intended to teach com- erance. —it Pledge Allegiance to the passion. include the flag. American D. 16-6B-2(h). § This law made
Ala.Code July Hutto On Holloman and daily Pledge Allegiance of the recitation filed a class action suit under U.S.C. character education part program § in the Northern District of Ala- Legislature required local school against County Board of bama Walker statute, separate A implement. to boards Adkins, Education, Harland, and Aired. however, emphasized students should They alleged that their First Amendment See pledge. recite the not be forced to rights they had been violated because had (“The § Board of Aa.Code 16-43-5 State threatened, chastised, punished been and afford all students attend- Education shall refusing say Pledge of Ale- kindergarten, primary and sec- ing public giance. They also claimed that Alred’s opportunity each ondary schools the practice soliciting prayer requests and voluntarily day pledge recite the school setting pray- aside a moment of silence for allegiance flag.” to the United States er violated the Establishment Clause. The added)). (emphasis sought complaint compensatory puni- and implement requirements, To these Lar- damages, declaratory tive as well as Banks, ry Superintendent the Walk- injunctive relief. District, sent a letter on County er School later, County behalf of the Board of A few months an amended com- Walker filed; principals plaint substantially to all the in the dis- iden- Education trict, system stating, original except school must tical to the Hutto was no “[EJach incorporate longer party. a Character Education Plan The district court dis- (with which will consist of 10 minutes of instruc- missed Adkins as a Jason defendant areas, as, consent), day tion in various such per and declined certi- Allegiance.... day fy Each must action. class Holloman does not Pledge Allegiance rulings. and then either of these appeal include you other areas as mentioned as determine In their answer to Holloman’s amended your school.” complaint, quali- Aired and Harland cited principal immunity Banks also sent each a form to fied as an affirmative defense. They in- complete specify summary how each school later moved the court for immunity its curriculum incorporate judgment qualified grounds. tended to into requirements granted court the character-education set The their motion and dis- directed, forth above. The memo “Please missed them from the case. It concluded prepared begin plans Speech allegations to make that Holloman’s Clause your submit local Education did not constitute a Character First Amendment vio- lation, Plan county certainly [to board] violation of a Superin- “clearly must be forwarded to the State that was established” at the County tendent’s Office.” The School time of the incidents. The court also re- jected apparently Board had to either review or Holloman’s Establishment Clause claims, approve stating each school’s character education there was no Eleventh Cir-
1263 evidence sufficient that he has introduced during the 1999-2000 precedent cuit clearly that a a moment “clearly support established” determination year that being unconstitu- as has been violated.4 Part prayer established of silence de- the court’s appealed successfully Holloman has tional. how Holloman V discusses sum- Allred Harland grant cision to theories under which articulated several immunity qualified on mary judgment liable may be held the School Board grounds.2 vio- Establishment Clause Speech lations, briefly Part VI concludes. while court’s dismissal
Following the district Allred and against claims of Holloman’s also
Harland, Board of Education II. court judgment. The summary sought provides: Section 1988 motion, concluding the Board’s granted who, any suffi- under color of alleged Every person had not facts Holloman ordinance, custom, under statute, regulation, the Board liable or hold cient ruling as appeals this subjects, § ... usage any 1983. State claims well, he stated valid arguing that subjected, any citizen of the causes to be Board.3 School against the deprivation ... to the States United se- any rights, privileges, or immunities review appeals, consolidated these laws, cured Constitution and shall de- granting court orders the district injured in an ac- party to the be liable Part II of summary judgment. fendants equity.... suit in [or] court tion at law explains why the district opinion and Harland sum- granting Allred erred in ways § two There are U.S.C. 1983. immunity qualified mary judgment on may held liable an individual be Clause Speech grounds against § sued for his under 1983—he own Allred is Part shows that claims. III (“direct or, liability”), actions un- personal judg- summary entitled potentially even circumstances, for der certain limited immunity grounds qualified ment on (“supervisoral of his subordinates actions Establishment Clause against Holloman’s Smith, see, liability”), e.g., Lewis has not she established claims because Cir.1988).5 (11th F.2d that, holding daily of law her matter official is government aWhen engaged prayer, she was moment of silent liability, he theory of direct sued under job. discretionary function of her in a summary judgment qualified on may seek underlying assesses Holloman’s Part IV potential- To even be claim, immunity grounds.6 concluding Clause Establishment course, may respon- be held supervisor, A opinion of Hollo- 5. dismissed all 2. The court's See or both theories. sible under either against both de- claims man’s constitutional Crawford, F.2d Brown v. prejudice. It a final entered fendants Cir.1990) ("Supervisoty liability either occurs pur- judgment of Allred and Harland in favor supervisor personally participates in 54(b), rendering when its or- Fed.R.Civ.P. suant to alleged violation lia- [direct appeal constitutional immediately appealable. der bility] there is a causal or when connection court as No. in this 01-13864. docketed supervising official and between actions of the deprivation [super- appeal alleged docketed as No. 01-15094. constitutional This liability].”). visoral legal 4. We this discussion because include may also rights government official seek 6. The that his constitutional determination qualified im- complaint dismissed necessary predicate to al- have were violated is a discovery, munity grounds prior based lowing against the Board to his suit School pleadings. solely allegations in the on the proceed. *12 judgment plaintiff the burden shifts to the to show summary due for eligible ly immunity, quali the official must have that the defendant is not entitled qualified “discretionary Jenne, function” engaged immunity. been fied Cottone v. 326 F.3d Cir.2003) (“Once acts of the performed (11th he the when a defen 1358 Fitzgerald, Harlow v. plaintiff complains. acting that he was within dant establishes 2727, 2738, 800, 818, 102 S.Ct. 73 457 U.S. discretionary authority, the burden (1982) (holding qualified 396 L.Ed.2d plaintiff to the to show the shifts “government officials immunity extends im qualified defendant is not entitled to functions”). discretionary It is performing immuni munity”). qualified To overcome official to governmental the the burden satisfy prong ty, plaintiff the must two City v. Cor showing. Storck make this (1) test; must show that: the defendant he (2003) F.3d 1314 354 Springs, al (2) right, a constitutional this violated (“Under immunity analysis, the qualified right clearly established at the time of prove first that he was must public official alleged Layne, violation.7 the Wilson discretionary scope of his the acting within 603, 609, 119 1692, 1697, 143 526 U.S. S.Ct. allegedly unconstitu authority when (1999) (“A evaluating L.Ed.2d 818 court added)). place.” (emphasis acts took tional immunity de qualified claim of must first to meet this burden A unable defendant plaintiff alleged has termine whether summary judgment on may not receive of an actual constitutional deprivation immunity Lumley v. qualified grounds. all, so, right at and if to determine proceed City, 327 F.3d 1194 City Dade right clearly whether established Cir.2003) (“If (11th the defendants were violation.”) alleged (quo at the time of the discretionary au acting within their omitted). If tations and citations for the benefit thority, they ineligible are plaintiff prevails prongs on both of this immunity.”); see also Lee v. qualified test, then the defendant is unable to obtain Ferraro, 1188, 1194 Cir. immunity summary judgment qualified on 2002). of our cases omit a number While grounds. see, step analysis, e.g., of the Denno v. this (11th Cir.2000); Bd., F.3d 1267 Sch. 218 test, Applying this the district Educ., Talladega City Bd. 115 Hall v. court Harland sum awarded Allred and (11th Cir.1997), binding Supreme 821 F.3d mary judgment against Speech precedents re and Eleventh Circuit Court Speech Clause claims. The Clause critical quire expressly us to consider protects First Amendment least two explain matter. this “discre threshold We (1) related, separate, yet rights: right tionary greater function” test detail (2) expression, to freedom of Subpart II.A. compelled expression. free from Foods, Inc., If, United States v. United interpreting the evidence in 2334, 2338, S.Ct. light plaintiff, most favorable to the (2001). rights unques L.Ed.2d 438 These court concludes that the defendant was function, discretionary tionably public in a then exist in schools. See Tink- engaged rulings questions legal may attempt quali- on these two dants not later to re-assert Our binding immunity against purely those claims on conclusions that are law of the case fied rights proceedings. legal (e.g. by arguing that the do revisited in later bases not be established). deny clearly Consequently, defendants sum- not exist or are not once immunity only remaining questions mary judgment qualified issues are of fact— i.e., actually plaintiff alleged plaintiff prove at grounds has vio- whether the can because alleged clearly rights, occurred. lations established the defen- trial that violations Dist., ed, violated Allred’s behavior nevertheless Seh. Indep. Comm. v. Des Moines er pun- she First Amendment because 503, 506, 89 S.Ct. viewpoint she (1969). expressing him ished L.Ed.2d any dis- rather than for repugnant, found Har- Allred and argues that (which, in- caused ruption purportedly he violating both directly liable land are *13 favor, in his terpreting evidence rights guaranteed constitutional Hollo- Consequently, entirely negligible). maintains, First, they he Speech Clause. necessary showings has made the man com- to be free from right his violated Speech Clause regard to his three threaten- by chastising, expression pelled Harland’s overcome Allred’s and claims to fail- him for ultimately punishing ing, and immunity at this qualified of assertions Pledge Allegiance. of ing to recite stage. Second, punished that he was to the extent in the air raising his fist silently
for A. (rather for than Allegiance of many qualified In areas other than Hollo- pledge), failing to recite the simply “discretionary function” is de immunity, a Harland vio- Allred and man contends that the exercise activity requiring an fined as in affirmative right engage his lated judgment, oppo and is the independent of whether Finally, regardless expression. See, e.g., of a “ministerial task.” site constitutionally expression was (5th Wood, 982, F.2d 985 612 Williams First itself, has the in he protected Cir.1980).8 immunity qualified In the viewpoint- right to be free Amendment however, context, to have appear we punishment. and based discrimination func “discretionary this abandoned Allred nor that neither conclude We dichotomy. In task” tion/ministerial judg- summary are not entitled to Harland (11th Webster, 47 F.3d 407 McCoy v. immunity grounds qualified on ment Cir.1995), “the term ‘dis interpreted Amendment any of these First against include actions cretionary authority’ to II.A, that we conclude Subpart In claims. element involve an necessarily do not engaged Harland were Allred and both that, choice,” pur emphasized they function at the time discretionary a immunity, governmen a poses qualified in connection with disciplined Holloman ac purely ministerial engaged actor tal incident, poten- so are flag salute performing can nevertheless tivities summary judgment tially entitled to discretionary function. Subpart In immunity grounds. qualified focusing on whether Instead of how the evidence—inter- II.B, we discuss the exercise question involved Hollo- acts most preted light favorable they discretion, we assess whether that his actual supports the conclusion man — employ type that fell within right to be free clearly-established inquiry is responsibilities. Our job ee’s Subpart speech was violated. compelled govern ask his We whether finding regarding two-fold. makes a similar II.C (a) legit performing employee ment engage expression. affirmative (that is, pursu job-related that, function even if—as imate II.D concludes Subpart (b) through means goal), ing job-related expres- the dissent contends—Holloman’s See power to utilize. were constitutionally protect- within not itself sion was Prichard, down Circuit handed the former Fifth City F.2d sions of 8. Bonner v. 1981) banc), (en (11th Cir. prior to October binding precedent all deci- adopted as court Ctr., part job-related powers respon- of his Reg’l Youth Det. Hill v. Dekalb (“A (11th Cir.1994) See, Savaiko, e.g., Madiwale v. n. 17 sibilities. F.3d Cir.1997). Put within his or her government official acts objective way, pass step circum- the first discretionary authority if another im- discretionary qualified that chal- function test for compel the conclusion stances munity, per- have been perform- the defendant must lenged actions occurred that, alleged a function but forming duties and within the ance of the official’s infirmity, would have fallen authority.” (emphasis add- constitutional scope of this ed)). legitimate job description. with his course, reasonably not to char believe vio Of we must be sure might
One
act at
rights
constitutional
acterize and assess the defendant’s
lating someone’s
*14
Nearly
job-related
high
generality.
function or
a level of
legitimate
a
too
never
government
every
performed by government
a
act
a
em
scope of
official’s
within the
described,
terms,
in
in
power.
explained
ployee
general
As we
can be
authority or
James,
ostensibly “furthering
public
Inc. v.
inter
Harbert
Int'l
Cir.1998)
(quotation
jump
high
est.” If we
to such a
level of
omitted), however,
abstraction,
impossible
“the
it
to de
marks and citation
becomes
truly
it
employee
not whether
was within the
termine whether the
inquiry is
job-
authority
alleg
acting
proper scope
to commit the
within the
of his
defendant’s
edly
way,
Consequently,
act. Framed that
related activities.
we con
illegal
than an
tau
at
government
is no more
untenable
sider a
official’s actions
inquiry
generality necessary
minimum
to
tology.”
applying
prong
In
each
level
test,
general
of the
taint.
In consid
we look to the
nature
remove
constitutional
action,
temporarily putting
ering
allegedly
an act of
excessive
defendant’s
whether
duties,
may
police
the fact that it
have been com
force fell within a
officer’s
for
aside
example,
purpose,
police
mitted for an unconstitutional
we do not ask whether
manner,
right
an
to an uncon
have the
to use excessive force.
unconstitutional
We
extent,
constitutionally
immediately jump
high
stitutional
or under
also do not
to a
inappropriate
generality
police
circumstances.
level of
and ask whether
responsible
enforcing
the law or
prong
first
Consider the
promoting
public
interest. We instead
in a
engaged
test-—-whether the official is
they
power
ask whether
have the
to at
job-related
legitimate
function.
Sims v.
See,
tempt
e.g.,
to effectuate arrests.
Fer
Metropolitan
County,
Dade
wanting
flag.
to salute the
affidavit,
Third, according to Holloman’s
the First
Speech
Clause of
interrupted
physics
Harland
states,
shall make
“Congress
Amendment
any
explicitly
class to
threaten
stu-
...
the freedom of
abridging
no law
say
dents who refused to
”
Const, amend. I. The
speech....
U.S.
Fourth,
Allegiance
punished.
would be
Amendment,
through
incorporated
First
the affidavits of both Holloman and his
Fourteenth
the Due Process Clause of the
being
mother state that he was told he was
Minnesota,
Amendment,
Near v.
In-
punished
failing
flag.
to salute the
625, 628,
figure with tremendous
thority,
carry
presumption
whose words
help but
a tre-
legitimacy,
cannot
have
Barnette,
Finally,
played
Allred
role in
recovery
under the First Amendment
for-
the administration Holloman’s more
punished
him for
is
the defendants
punishment,
paddling.
report-
mal
his
She
constitutionally
in
engaging
protected
to
principal
ed the incident
with the
maintains,
words,
in
speech. He
other
hope
intent and
that Holloman be disci-
if
him
punished
that even
the defendants
plined,
present during
was
Holloman’s
during
his
silently raising
fist
Harland,
object
questioning by
did not
or
Allegiance
than for
Pledge of
any way,
to
Harland in
attempt
dissuade
—rather
merely
remaining
silent
present
paddling,
was
for the
and mani-
rights
Speech
under
pledge
throughout
approval
fested her
—his
reasons,
still violated. The district
Clause were
process.
entire
For similar
Hol-
majority
overwhelming
court dedicated the
loman has
adduced sufficient evidence
also
Harland,
and Har
opinion regarding
of its
Allred
support
against
his claim
argument, concluding that
actually spanked him.
land to this
one who
jury
reasonably
Schonberg,
Jabberwocky
of Arnold
or
could
conclude
“[n]o
like-situated,
‘every
Hurley
verse of Lewis Carroll.”
v. Irish-
reasonable’ teacher or
Am., Gay,
&
Group
Lesbian
Bisexual
principal
necessarily
pun-
would
know that
Boston, etc.,
557, 569,
515 U.S.
115 S.Ct.
ishing Holloman for his unorthodox and
(1995).
2338, 2345,
Thus,
1271
may
(holding
at 740
that a school
89
principles
applies
and
these
summarizes
.S.Ct.
activity
prohibit expressive
not
unless
instant case.
them to the
might reasonably
“facts which
there are
a.
authorities to forecast sub
have led school
disruption of or material interfer
stantial
scope
of the
rights,
with all
As
activities”); Shanley, 462
ence with school
has boundaries.- On
Amendment
First
(“The
in-
curtailing
969
test for
F.2d at
occasions,
have affirmed the
many
or
expression
school exercise of
whether
institutions “to
public educational
right of
reasonable,
expression
its method of exer
not
or
non-discrim
and enforce
adopt
substantially’
time,
‘materially
cise
inter
place
to the
regulations as
inatory
discipline
or
expressions and
feres with
activities
of student
and manner
school.”).
Martine,
This doctrine allows school au
v.
430
Bayless
demonstrations.”
(5th Cir.1970).
prohibit, among
things,
other
This “rea
thorities
F.2d
878
“lewd, indecent,
speech....
simu
or offensive
test is not the anemic
sonableness”
not prevent
The First Amendment does
governmental
a constraint on
lacrum of
determining
school
Due Process Clause’s
officials
found in the
power
test, see,
vulgar
speech
such as
e.g.,
permit
lewd
Williamson
“rational basis”
483, 487-88,
respondent’s
would undermine the school’s
U.S.
Optical,
v. Lee
(1955),
educational mission.” Bethel Sch.
461, 464,
L.Ed. 563
but
basic
S.Ct.
Fraser,
675, 683, 685, 106
of “reason Dist. v.
a more robust notion
rather
(1986);
3159, 3164-65, 92
in the S.Ct.
L.Ed.2d
applied
such
ableness”
as
James,
169, 189,
context,
Healy v.
see also
Amendment
see U.S.
Fourth
Const,
(1972)
L.Ed.2d 266
“unreason
(prohibiting
amend. IV
(“[First
seizures”).
activi
Amendment] [a]ssociational
able
searches
in
they
not be tolerated where
ties need
Byars,
we articulated the
Burnside
rules,
campus
interrupt
fringe reasonable
public
whether a
way to determine
classes,
substantially
with the
interfere
expression
that curtailed
regulation
to obtain an
of other students
opportunity
reasonable:
education.”).
ignore expres-
cannot
officials
[S]chool
they do not
feelings
sions of
with which
However,
assessing
the reasonable
They
infringe
cannot
to contend.
wish
upon expres
that tread
regulations
ness. of
right to free and unre-
on their students’
sion,
specter
to the
simply
we cannot
defer
guaranteed
expression
stricted
possi
or the mere theoretical
disruption
First Amendment to the
them under the
minimis,
discord,
bility of
or even some de
Constitution,
the exercise of such
where
impact on classroom deco
insubstantial
buildings
and school-
rights
the school
Particularly given the fact
rum.
materially
rooms
and substan-
do[es]
spend
law to
young people
required
requirements
tially interfere with
of their lives
class
portion
a-substantial
operation
appropriate discipline
rooms,
sup
expression
student
the school.
-gives
rise to
pressed simply because
disruption,
slight, easily overlooked
the Burnside
some
classrooms”
other
point
quite clearly
This
was made
if there was a realistic threat that The dissent that concludes Hollo conduct at issue “materially would and gesture unprotected man’s substantially because require- interfere with the appropriate “[t]he students’ comments Allred discipline oper- [to after ments of ation of the school.” Id. they demonstrate that at least class] fo 355. The court, correctly applying precedents, cused their attention our portion held: the recitation of the on Holloman’s ... planned
fist rather than on the curric being Rather than there a threatened or ulum saying Pledge.” ap This actual substantial disruption to the edu- proach appears ignore principle school, dis processes cational of the the evi- expression cussed above that student must dence reflects that assigning (or cause) likely cause be story greeted with apathy by “material[] most Burnside, disruption, Only of the students. plaintiffs three of substantial^” brief, 363 F.2d at than a students asked to more be excused from the overlooked, de minimis easily assignment. impact, question On this be wheth- may fore it er there was a material be curtailed. The dissent ar and substantial threat of gues disruption, Principal Holloman’s act was “meant testi- fied at the hearing School Board compete students’ attention.” The there was no any plain- indication that any same can be said of of the forms of tiffs other 87 planning students were expression student that have been found to disrupt the normal routine of the school. protected, including wearing This Court now specifically finds and armbands or buttons in A class. student concludes that the conduct for which expressing ways clearly himself those plaintiff was dismissed was not such that intends to attract the other students’ at materially “would substantially in- consider, tention and have them however terfere with” requirements reasonable briefly, meaning symbolism. behind the discipline in the school. Indeed, if a student’s attention is never focused, moment, if even for a on the Id. at 356. There is no evidence in the expression, pointless. it becomes Under record suggest gesture approach, the dissent’s may where schools any caused more disturbance or unrest prohibit any speech any or acts that do than assignment. By Parducci’s focusing thing to distract a student’s mind —howev entirely on whether students have briefly er or insubstantially “distracted,” been momentarily rather —from curriculum, planned constitutional protec- than on whether the distraction or disrup-
1273
to follow
“substantial,”
of one. We
bound
possibility
the
or
“material”
tion was
it is
rather than Ferrell because
Burnside
to stu-
protection
gives insufficient
dissent
Local Union
earlier
See
case.
the
incor-
48
rights and
First Amendment
dents’
Co.,
Pappas &
v. S.L.
Workers
Sheet Metal
applies
precedents.
our
rectly
Cir.1997).
(11th
970,
Similar
F.3d
975
106
un-
expression
of
types
certain
While
Fer
Tinker rather than
follow
ly, we must
threat of
enough of a
cause
questionably
intervening, inconsis
it
an
rell because
is
be-
even
suppression
disruption to warrant
decision. See
Supreme Court
tent
Lufkin
occur, “undif-
consequences
negative
fore
(11th
McCallum, 956 F.2d
of distur-
apprehension
or
ferentiated fear
Cir.1992).
the
Consequently,
apply
right
the
enough to overcome
bance is
in this case.
doctrine
Tinker-Burnside
in schools.
expression,”
of
even
to freedom
standard we reaf
This Tinker-Burnside
at 737.
Tinker,
89 S.Ct.
at
in
v. Bd.
today
applied
was
Banks
firm
factors
be demonstrable
must
“[TJhere
(S.D.Fla.
Instr.,
F.Supp. 285
Public
any
to
reasonable
give rise
that would
n 1970),
by 401 U.S.
vacated
'administration
by the school
forecast
(1971),
reinstated
L.Ed.2d 526
disruption
material’
‘substantial and
ct. and
by dist.
published opinion
without
may be
expression
activities before
school
Cir.1971),
(5th
a case
F.2d 1103
aff'd, 450
Shanley, 462
constitutionally restrained.”
one,
was
where a student
to this
similar
Participant
974;
Center
accord
F.2d
for
during
to
the
failing
stand
suspended
Marshall,
F.Supp.
Ed. v.
court
Allegiance. The district
Pledge of
(N.D.Fla.1972)
“specula-
(suggesting that
Banks
held,
of Andrew
“The conduct
justify restric-
to
is insufficient
tive fear”
cere
pledge
the
to stand
refusing
a “real
expression, but
on
tions
student
his reli
expression
an
mony constituted
potentially
of conduct
immediate fear
and
His
opinions.
political
and
beliefs
gious
routine” is
university
disruptive
a form of
was no less
to stand
refusal
enough).
the black
wearing
the
than
expression
more re
this
recognize that
test
We
He
Mary Beth Tinker.
was to
armband
interpreta
parsimonious
than the
strictive
pure
right
‘akin to
exercising a
”
free
Amendment
First
tion of students’
at first
Id. at
While
speech.’
Indep.
Dallas
in Ferrell v.
doms offered
right
seem like Banks’s
might
glance
Cir.1968).
In
Dist.,
Sch.
speech was
issue
compelled
free from
suspended
Ferrell,
principal
high
the
case,
quote from
above
grow
ruling
in a rock-and-roll band
students
that its
clear
court makes
district
upheld
This court
long.
hair too
Amend
ing their
Banks’s
First
not based
prin
silent,
First
regulation because
his
principal’s
but
right
ment
remain
style
affirmatively express
length
and
cipal
right
felt “that
Amendment
trouble,
commotion,
administration
cause
Both the school
boys’ hair would
himself.
perceived
case
distraction,
in that
disturbance
the court
”
ev
degree
remaining
while
seated
Id. at 699. To
act
school....
Banks’s
expressive
an
standing
ab
as
principal’s
eryone
else was
ruling
based on
this
speak.
act,
refusal
concerns,
inconsistent
than a mere
patently
rather
it is
stract
Tinker,
way,
to act
such
upholding
articulated
principle
observed,
unrefuted
“The
cases dis
district court
Burnside,
other
numerous
plain
Subsection,
clearly reflects
testimony
throughout
cussed
any
has not caused
to stand
refusal
threat
tiffs
a real
substantial
there must be
process.”
educational
disruption
the mere
disorder,
opposed
of actual
*21
Id.;
v. Louisiana State Bd.
students who did not
participate
cf. Jenkins
wish to
(5th Cir.1975)
Educ.,
(uphold-
wearing
F.2d 992
the buttons.”
Id. at 753.
college
on
ing restrictions
students’ activi-
Burnside,
however,
In
appellants
“[t]he
ties
actions of
because
court,
panel
same
day,
of this
on the same
disruption
in a material
resulted
emphasized that
'possibility
the mere
rights
campus
They
and of the
of others.
consequences
justify
such
did not
a differ
protected by
the First
were
Amend-
banning
ent school in
freedom buttons.
ment.”).
therefore find Banks to
We
363 F.2d at
(overturning
school’s ban
fully
approach
consistent with the
mandat-
on freedom buttons because “affidavits and
Tinker,
by Burnside and
ed
conclude
testimony before the District Court reveal
gesture
sufficiently
that Holloman’s
was
no interference
activity
with educational
(in
akin to Banks’s refusal to stand
and do not
support
conclusion that there
any
impact
neither had
real
on class disci-
awas
commotion or that the buttons tend
pline)
to be entitled to
First Amend-
ed to distract
the minds of the students
protection.
ment
teachers”)
away
(emphasis
from their
omitted). The
involving
dyad
Our cases
“freedom buttons”
Bumside-Blackwell
perhaps
permissibility
even more
demonstrates that the
instructive.
of a
Educ.,
Cty.
expression
restriction on
Issaquena
Blackwell v.
Bd.
student
cannot be
(5th Cir.1966),
abstract,
unpleasantness
F.2d at 700-01.
Near v. Minneso-
viewpoint.”);
unpopular
a
to curtail a student’s
Allowing
school
625, 633,
ta,
S.Ct.
on such fac-
expression
freedom of
based
(1931) (“If
township may
L.Ed. 1357
If certain
tors turns reason on its head.
newspaper for
the circulation of a
prevent
violently
a
likely
are
to act
when
bullies
of its
other than that some
no reason'
hair,
long
unquestion-
it is
student wears
it,
may violently disagree with
inhabitants
easy
principal
ably
preclude
for
by resorting
circulation
resent
its
and
the student from
by preventing
outburst
violence,
is no limit to what
there
physical
however,
so,
hair. To do
wearing long
and cita-
(quotation
prohibited.”)
be
of or-
upon
to sacrifice freedom
the alter
omitted).
tion
der,
liberty to
scope
and allow the
of our
expression
removed
Nor is
by the inclinations of the un-
be dictated
protection
realm of constitutional
from the
disrupted
If
classes
lawful mob.
bullies
cloaked their
the students
simply
join
because
a student who refused to
up
and beat
of offense or
disagreement
guise
team,
proper
solution
the football
was not di-
Holloman’s behavior
disgust.
join
to force the student to
would
be
any
anyone
group
“toward”
team,
rected
but to
the stu-
protect
the football
by a reasonable
not be construed
could
If bullies
punish
the bullies.
dent
student) as
(including high
school
person
aup
and beat
student
disrupted classes
offense or insult.
personal
enough
wearing fancy
because he wasn’t
clothes,
solution would not
proper
argu-
Dist.
Indep.
Ferrell v. Dallas
Sch.
to wear Abercrombie
to force the student
Ferrell,
position.
ably supports Allred’s
Crew, attire,
protect
but to
& Fitch or J.
prohibit
could
court held that a school
punish the bullies.
the student and
long
simply
hair
wearing
students
with
to a student
analysis applies
same
hairstyle “pro-
their choice
because
hair,
nothing that the
doing
who is'
long
breaking
into
school
voked” other students
objec-
conclude is
person
reasonable
would
violently.
by responding
the law
rules and
any-
tively
directly
wrong or
offensive
justified
hair-length regula-
The court
might
other students
one. The fact that
considerations:
by pointing to such
tion
hairstyle as an incitement
take such a
boys in his
group
On one occasion
of those other
an indictment
violence is
that a classmate’s
had decided
students,
long hair.
they
were
long
hair was too
reasoning
part
basis
in their own
Such
to take the matter
going
York, 394
v. New
Mr. Lan- Street
and trim it themselves.
hands
(1969),
reversed “[tjhough because it is conceiva- c. that some might
ble
listeners
have been
moved to
upon hearing appel-
retaliate
appeal,
On
repeatedly emphasizes
Allred
words,
disrespectful
lant’s
say
we cannot
punished
Holloman was
not for his
*23
appellant’s
act,
remarks were so inherent-
but for disobeying directions from her
ly inflammatory as to come within
only
and Harland
to the
permissible
as
‘fighting
ways
small class of
flag. By
words’ which
to salute
raising
fist
his
‘likely
provoke
average
day,
the air the next
person to
Holloman contra-
retaliation,
thereby
and
vened these
cause a breach
instructions. Consequently,
of
”
peace.’
argues,
Allred
(quoting
Id.
Chaplinsky
punished
v.
Holloman was
for
Hampshire,
568, 574,
orders,
Neiv
insubordination for violating
315 U.S.
these
62
(1942));
exercising
rather than for
S.Ct.
tesy, personal no preferences of others.” v. Sabel While the same constitutional (11th standards Stynchcombe, 728, 746 F.2d 731 Cir. always do not apply public 1984). schools as on As throughout discussed this Sub streets, public we cannot afford students section, Holloman had the constitutional less simply constitutional protection be- right to raise fist during their peers might illegally cause express Allegiance long so as he not disrupt did disagreement through violence instead of the educational process or the any class in reason. If acting the people, through a way. real legislative assembly, may not proscribe prevent Allred could not from Holloman speech, certain may they neither do so exercising a right constitutional simply acting individually as Principals criminals. him telling not to do so. School officials duty have the public maintain order in punish not indirectly, through the schools, they may but not do so while insubordination, guise of what they may turning a eye blind to basic notions of punish directly. Rutland, See 316 right wrong. F.Supp. at (ordering reinstatement of
Thus, under the Tinker-Burnside public doc high school teacher who was dis trine, we are required reject portion missed in violation the First Amend Ferrell, as well. Even if Allred were assigning ment for story a short adminis in fearing correct that other students may objectionable trators found because react inappropriately or illegally, such “plaintiffs re ‘insubordination’ was not insub actions do not justify suppression of any not, Hollo- ordination in sense and was expression. man’s expression reality, a reason for the School Board’s constitutionally protected action”); because the Dickey v. Alabama State Bd. of record Educ., reveals no inway (M.D.Ala. which he “materi F.Supp. ally (“The 1967) substantially with interfere[d] attempt to characterize Dick requirements appropriate discipline conduct, ey’s the basis for their action with consistent is not munity standard'... re- him, ‘insubordination’ expelling Hope v. Court’s] eases.” action, Supreme [the disciplinary severe rather quiring n. Pelzer, 739 & Dick- fact that the basic disguise does (2002). L.Ed.2d 666 n. 2515 & College Troy State expelled ey was constitutionally guaran- exercising his While officials must have fair ex- political academic right of teed and/or are unconstitution- that their acts warning nom. sub as moot vacated pression.”), fours,” all al, “on not be case there need Dickey, Troy Univ. State facts, before we materially identical Cir.1968). lacked Allred A principle against them. allow suits will place; in the first his behavior proscribe “clearly can estab- law constitutional punish Harland nor could she neither if are “notable factual even there lished” a directive violating relied precedents between distinctions *24 nullity. was a constitutional Court, so then before and the cases gave reasonable decisions long prior as the no choice but we have Consequently, violated at issue that the conduct warning that Holloman of law as a matter conclude v. United States rights.” constitutional of his a violation articulated successfully 1219, 259, 269, Lanier, 117 S.Ct. of ex- to freedom right First Amendment (1997); 536 Hope, 1227, 137 L.Ed.2d now Allred. We Harland and by pression (“[Officials at 2516 122 S.Ct. at rights 'were these whether must assess their conduct notice that be on still can time of at the “clearly established” fac- novel law even established violates incidents. Lanier, Indeed, in we circumstances. tual pre- requirement that rejected expressly 2. ”). ‘fundamentally similar.’ cases be vious recently chastised circuit was This we held jurisprudence, pre-Hope In our taking an unwar- for Supreme Court that of the circumstances rantedly narrow view rules, or abstrac- propositions, [gjeneral re can be held public officials
in which im- qualified ... not determine tions do for their constitutional violations. sponsible that Instead, the circumstances munity. Cox, F.3d v. Vaughan See must actor government confronted (“[T]he Cir.2003) (11th Supreme Court prior materially similar been have un we should not that Hope cautioned clearly estab- to constitute precedent similarity requiring factual duly rigid public officials law because lished under and the case prior cases between imagina- to be creative obligated consideration.”). circuit of this The law analogies previous- drawing tive in could actor government that a used to be qualified immuni- cases. For ly decided acts immunity only qualified be denied surrendered, law pre-existing ty to be light of obviously wrong, in that are “so (not is, compel dictate, truly that must law, plainly only that pre-existing question raise a or allow or just suggest know one who was officer or incompetent every like- about), the conclusion done have violating the law would ingly agent situated, government reasonable A. & v. Alabama thing.” Lassiter such a doing violates defendant that what (11th Univ., Cir. M. in the circumstances. federal law Court, (en banc). spe 1994) Supreme Lakeland, 203 F.3d City a hand (along with Wood cifically citing Lassiter Cir.2000) (citations quo- cases), held 1291-92 Eleventh Circuit ful other omitted). im- tations qualified rigid gloss “[t]his above, Hope cases, As discussed reminds our us earlier question “the salient ... longer no that we need focus on whether is whether the state of the [at law the time are “materially the facts of case similar question] the events gave respon- Moreover, prior precedent.” Hope em dents fair warning that their alleged treat- phasized “general statements of the ment plaintiff] of [the was unconstitution- incapable are not inherently law of giving al.” 536 U.S. at fair and ... warning clear [A] constitution claims, to Holloman’s Turning
al already rule identified the decisional that, find May as of Tinker apply clarity law with obvious to the Bumside specific clearly standard was question, conduct in though even established sufficiently very specific action in question give has as previ the de [not] ously warning” been held unlawful.” fendants “fair 536 U.S. at their conduct 741, 122 (quotations omitted). constitutionally S.Ct. prohibited. do not We Thus, just compare we do not the facts of find it expect unreasonable to the defen an prior instant case to cases to determine dants —who holds themselves out edu established;” if “clearly we also apply cators—to be able to such a stan assess whether the facts of the instant dard, notwithstanding the lack of a case fall within general case statements of prin with material factual similarities. While ciple from our precedents. See Vinyard v. we have *25 traditionally not upon called gov Wilson, (11th 1340, 311 F.3d 1351 Cir. ernment to officials be “creative or imagi 2002) (“When looking law, at case some in native” determining scope the of consti broad of statements in principle case law rights, tutional Adams v. Cty. see St. Lucie particularized not tied to are facts and can (11th Dep't, 962 F.2d 1575 Sheriffs clearly applicable establish law in the fu Cir.1992) (Edmondson, J., dissenting), nei facts.”). ture to different sets of detailed they ther are free of responsibility the to put Hope forth at abrogated seems to least many have some mental effort in of other Wood, applying reasonably the standards articulated in well-defined doctri as well. For example, nal require- Wood’s test to a particular situation. Our particular ment that a conclusion precedents must be would of be little value if gov “dictate[d], is, that truly compel[led]” inti- ernment officials were free to disregard mates a level of crystal-clear absolute cer- fairly specific statements of principle they tainty precedent about part forms no contain and focus their attention solely on of Hope’s requirements. To degree the particular the factual in scenarios there exists a conflict between Hope and they arose. cases, are,
our earlier course, we bound The Tinker-Burnside test to follow calls for Supreme the Court’s intervening (1) teachers to two ruling. McCallum, assess factors: See v. whether 956 F.2d Lufkin (11th (either Cir.1992). student is expression in engaged Hope, Since pure conduct) many speech (2) or expressive our cases have applied its stan- and dard to earlier, the exclusion of our whether the expression having is a non- more rigorous See, negligible effect, doctrinal e.g., disruptive likely tests. or is Holmes to Kucynda, (11th v. effect, 321 F.3d have such an 1077-78 on classroom or order Cir.2003); Holley, Dahl v. the 312 F.3d educational process. The first is factor (11th Cir.2002); Bonner, quite easy Weaver v. to apply; test for determin (11th Cir.2002). Hope ing whether an act expressive constitutes that, emphasizes notwithstanding conduct more is per whether “reasonable stringent standards articulated some of son” perceive would it as such. See silently to Indeed, right Holloman’s 410-11, Spence, Alle- Pledge of during his fist raise principal or a teacher Consequently, “clearly considered even be would giance determining problem have no should As discussed Barnette. under established” expres- engaged is a student whether to remain earlier, clearly he had myriad forms Indeed, given sion. Pledge Allegiance; silent about hesitant be we should expression, to conclude very be reluctant would expression means of that a requiring the protection shed somehow offer- before case subject of previous lifting his simply by First Amendment protection. § 1983 speaker full ing the right. exercising this air while into the fist quite also be should The second factor asking essentially are Harland Allred A apply. educator for an effortless on constitutional distinguish, us in- be able should principal or teacher his hands with a student between grounds, dis- Hutto) (like a student whether recognize stantly at his sides pockets hard not be too class, it should air. his hand rupting with a student split; activities First a student’s whether hair we will is a to determine This lost that effect. Conse- are not such an protections likely have Amendment Tinker-Bum- easily. find the we do quently, unreasonable of such an to be
side test
D.
and Harland
that Allred
generality
level
init
apply
expected
with the
have been
takes issue
dissent
could not
Roberts,
C, contending
F.3d
Subpart
analysis
Thomas
this case. Cf.
be
Cir.2003) (“[Wjhere
unprotected
applica-
expression
one,
activity that com
the sort
general
“is
highly
is a
cause
legal standard
ble
students’
the teacher
case-
‘reasonableness,’
petes
*26
preexisting
such as
discussed
reasons
For the
specific
to
attention.”
law
general
applied
has
law that
not believe
do
Subpart, we
previous
always be neces-
almost
will
circumstances
had virtual
activity, which
Holloman’s
that
giving
of
capable
that
a line
sary
draw
to
class,
sufficient
on the
impact
no
ly
con-
that an official’s
clear notice
fair and
fall outside
to
Burnside
Tinker
under
law.”). Because
federal
violate
duct will
protection.
constitutional
of
realm
established,” is
“clearly
this standard
(or
on
based
jury,
However,
if we
even
gener-
level
high
at an unreasonable
not
trial)
to
were
they unfold
as
facts
to
facts
applied
and when
ality,
did “mate
expression
find that Holloman’s
fairly
determinate
yields
case
Holloman’s
interfere
substantially
rially and
clear, Allred
have been
should
result
discipline,”
appropriate
requirements
summary
to
entitled
are not
and Harland
to articulate
able
still be
would
grounds
immunity
qualified
on
judgment
rights.
Amendment
First
his
violation
claim
Speech Clause
against
types
expres-
egregious
to affirmative
most
right
concerning his
One of
is view
gave
principle
violations
Amendment
Tinker-Bumside
First
sion.
Chandler
vio-
conduct
See
that their
discrimination.
point-based
notice”
“clear
them
(11th
James,
Cir.
un-
rights;
180 F.3d
constitutional
v.
lated Holloman’s
discrimina
1999)
“viewpoint
(noting that
dissent,
that teachers
we believe
like the
of con
form
egregious
the most
“readily
tion[ ][is]
determine
to
equipped
well
are
Har
Searcey v.
censorship”);
tent-based
the Tinker-
within”
falls
conduct
what
Cir.1989)
1314, 1324
ris,
F.2d
standard.
Bumside
(“The prohibition against viewpoint dis-
tionally proscribable category
expres-
firmly
crimination is
embedded in first
380-81,
sion.
Id. at
This theory
abusive
was most
no
clearly
in
mat-
applied
Paul,
ter how
severe,
R.A.V. v.
vicious or
permissible
St.
112 S.Ct.
(1992).
unless they
viewpoints of the Libertarians were less against Clause claim them. valuable than those the Democrats and Republicans.”). III. emphasized earlier,
As
claims that
rights
under
evidence
trial
Establishment
prove that Allred
Clause
did not
were violated
disci
pline
daily
Allred’s
moment of
prayer.
Holloman because of his
silent
viewpoint,
The district
granted
but
court
legitimate
for a
both
reason.
Allred and
Interpreting
summary
Harland
judgment
against
evidence in Holloman’s favor for
this
sum
claim. While
mary
Holloman’s
judgment
appeal
brief on
purposes, however, we
vigorously
ruling
contests this
applies
must
as it
conclude that her motive was dis
Allred,
it does not
criminatory.
even mention wheth-
Because Holloman had the
er Harland was entitled
qualified
right to
immu-
from viewpoint
free
discrimina
nity on this claim.
tion,
Consequently,
we are
was clearly established
(both
forced
conclude that Holloman
general
has
as well
inas
the public
abandoned his appeal regarding
context)
Harland’s
precedents
under the
dis
summary judgment on qualified immunity
above,
cussed
deny
we must
quali
Allred
grounds against Holloman’s Establishment
fied immunity at
stage.
this
As Justice
claim.9
Clause
We reverse the district
us,
Blackmun reminds
“[I]f
in
educators
grant
court’s
of summary judgment on this
tentionally may eliminate all diversity of
Allred,
claim to
however.
thought, the school will strangle the free
mind
its source and
youth
teach
As
II,
noted
Part
the first
step
important
discount
principles of our gov
assessing the viability of a qualified immu-
ernment as
platitudes.”
mere
Bd.
nity defense is to determine
whether the
Pico,
Educ. v.
457 102 S.Ct. government official defendant was en-
(1982) (Black
9. Based on the record
appears
before
premised
supervisoral
liability. Because
*29
if Holloman would be able to
a
articulate
failed
to articulate such a cause of
ways
number of
in which Harland could be
any point
court,
at
action
before the district
held liable
supervisoral
a
theory
under
of
we need not
viability
consider the
of such
liability.
earlier,
As
qualified
discussed
im-
claims here.
munity is not a
§
defense to a
1983 suit
powers
or
as a teach-
All-
fell within her duties
to
willing
are
assume
We
of this test
prong
first
is a
satisfies the
The fact that Allred
teacher does
red
er.
attempting
pursue
to
because she
in
anything
says
mean
she
or does
not
fostering
of
job-related function
legitimate
necessarily
a
constitutes
front of classroom
by
education
teach
character
her students’
discretionary powers
of her
or
an exercise
nevertheless fails
ing compassion. She
job-related
Prayer
function.
is dis-
is a
“discretionary func
of the
prong
second
type
from
of civil virtue and
tinct
pursuing
was not
tion”
because she
test
pro-
to
sought
moralism Alabama
secular
legitimate
job-related
through
goal
this
pro-
through its character education
mote
powers.
her
While
fell
means that
within
Allred
not
Consequently,
is
even
gram.
and moral
development
character
fostering
judgment
summary
to
potentially entitled
All-
undoubtedly parts of
education were
immunity grounds against
qualified
on
not
this does
responsibilities,
official
red’s
claim.
Holloman’s Establishment Clause
anything
her to do
automatically empower
judgment
that furthers those
within her
takes
with this conclu-
The dissent
issue
all
cannot educate students
goals; she
sion, concluding that school
a
prayer is
costs.
scope
a
of act that falls within the
of
type
beyond
sufficiently
Praying goes
discretionary
teacher’s
au-
public school
performed
range
normally
activities
of
certainly within
thority.
argues,
It
“It was
commonly accept-
high school teachers
scope
public high
of a
school teacher’s
part
job
as
of their
as to fall outside
ed
prior
authority
prayer
lead students
to
duties,
if
even
she
scope of Allred’s official
ruled that teacher
when
Court
achieving
a
of
using prayer as means
were
is a violation of
public
schools
prayer
led
It is not within the
job-related goal.
a
analysis
This
Establishment Clause.”
are
range
among
tools
which teachers
of
determining
wheth-
point.
beside the
is
empowered to
furtherance
select
perform
public
a
official is authorized to
er
Prayer
a
duties.10
is
pedagogical
their
(abstracting away
of act
type
a certain
Put
generis activity.
anoth-
relatively s%ui
aspects), we
its unconstitutional
look
way,
ignoring
Estab-
er
even
authority
their
as it exists
scope
claims,
still
praying
lishment
would
Clause
as what the
today,
inquire
do
public
teacher’s
part
not be
a
school
present-
forty-year old root causes
or
responsibilities
duties.
Prayer
been.
day situation
have
that,
juncture,
we
emphasize
We
falls within a reason-
type
not a
of act that
denying
summary judgment
are not
Allred
that teach-
ably specific category of actions
against this
qualified immunity grounds
on
there
no
perform;
are authorized to
ers
her acts violated the
claim because we feel
away
way
abstracting
its unconsti-
easy
Instead,
are
Establishment Clause.
type
to arrive at a
aspects
tutional
ineligible
qualified
her
immuni-
holding
discre-
that falls within teachers’
behavior
she failed
ty as a matter
law because
authority.
tionary
type of act—
establish that her act—this
a
the Ten Command-
emphasize
is not
case
10. We
that students were
part
studying
literature,
integrated
as
of a course
curricu-
Bible
into
ments
hymn
singing
religious
lum,
or
may constitutionally be
the Bible
where
class,
analyzing prayer
poem,
music
study
history,
appropriate
civili-
in an
used
actually encouraged
pray.
but
were
instead
zation, ethics,
religion, or the
comparative
Graham,
39, 42,
Stone
like.”).
Cf.
(“This
(1980)
S.Ct.
we
against
Court
A.
important
other
stimuli that has
to
led
The Establishment Clause of
gradual secularization of
country
this
over
the First
states,
Amendment
“Congress
past
half
century
determine why shall make no law respecting an establish
prayer
type
is not a
of act that public
Const,
religion....”
ment of
amend.
are empowered
teachers
per-
I. This restriction has been
applica
made
Consequently,
form.
Allred acted outside
states,
ble to
as well as state-created enti
her discretionary authority and is not even ties and their employees, through the Due
potentially eligible
qualified
to invoke
im- Process Clause of the Fourteenth Amend
munity against Holloman’s Establishment ment.
Connecticut,
Cantwell v.
310 U.S.
Clause claims.
296, 303,
900, 903,
60 S.Ct.
(1940). The Establishment
applies
Clause
IV.
only
statutes,
state
but acts and
decisions of individual governmental ac
The district court granted Allred sum-
tors, such as teachers and school adminis
mary judgment
qualified
immunity
Weisman,
trators. Lee v.
577,
505 U.S.
grounds against Holloman’s Establishment
2649, 2655,
112 S.Ct.
1285 “amen,” gave the she and pray” “let us entanglement why recognize to simplest is of moment during the aspect praying of an practice it ... as treat significant is imprimatur. implicit effect.” her a statute’s into silence inquiry tradi- its has folded Thus, the Court while a higher- have had may also she While inquiry entanglement” “excessive tional compas- promoting goal ultimate order the sub- analysis, effect” “primary its into goal the ultimate only to sion, we look juris- Clause Establishment its stance of behavior, but also of the objective or fundamentally unal- remains prudence immediate, lower-order tangible, or more v. Simmons- See, e.g., Zelman tered. actor intends government consequences 648-49, 639, Harris, 536 mere “testimonial Allred’s bring about. (2002). This 2465, 604 2460, 153 L.Ed.2d is not suffi- purpose ... secular avowal practice that Allred’s demonstrates Section with the Establish- conflict to avoid cient stu- from her requests prayer soliciting Treen, 653 B. v. Karen Clause.” ment moment silence enforcing a dents Cir.1981). 897, 900 F.2d stan- Lemom-Agostini runs afoul (a) purpose to the looks dard. Subsection that em- closely follows reasoning This (b) examines acts, while Subsection of her v. Stone Supreme Court by the ployed effect. primary their that, Graham, it held notwith- wherein justifications secular standing supposedly 1. district, pre- “[t]he the school by offered the Estab violates official government A the Ten posting Com- for purpose eminent if “secular she lacks lishment Clause plainly is on schoolroom walls mandments her actions. purpose” legislative Command- The Ten in nature. religious Liber Religious & Pub. Educ. Comm. for text in undeniably a sacred ments are S.Ct. 444 U.S. Regan, ty faiths, and no legisla- and Christian Jewish (1980). Allred L.Ed.2d pur- secular supposedly aof tive recitation daily moment her defend attempts that fact.” us to can blind pose in that by arguing prayer silent 66 L.Ed.2d 39, 41, 101 S.Ct. compassion,12 students teach tended reli- primary is (1980). prayer “a Because plan education the character pursuant Treen, F.2d itself,” see activity in gious See Legislature. State mandated intent administrator’s or a teacher Ala.Code I.C; also see Section supra pub- in a encourage prayer to facilitate § 16-6B-2. in- unconstitutional an per se school lic not consti does explanation This religious goal. .a to further tent purpose legislative a valid secular tute testimo- Allred’s Second, accepting even First, basic Allred’s most actions. Allred’s way as prayer to use hoped that she ny stu to offer her unquestionably intent analysis does our teaching compassion, public in a pray opportunity an dents compas- promoting While end there. day, and effective during the school teach- purpose, secular a valid may be sion collecting By do so. them to encourage ly necessary or praying ing students phrases using requests, prayer Cleanliness out litter. you throw if fined only character not the Compassion was actually men- I have hygiene, personal far as stu- attempted to instill her trait Allred class. problem in I had when testified, talking tioned about you are "If dents. She to, you know,- forget know, 'Everybody don’t You cleanliness, litter. You we talk about " know, students, being bathe.’ I discussed and have *32 promoting compassion helpful permissible is not.13 purpose. Jager Doug- See v. Treen, Dist., (11th As we held Cty. 824, las Sch. 862 F.2d 830 Cir.1989) (“[A]n objective Even if leg- intrinsically religious the avowed of the practice islature and school board is not cannot itself meet the secular purpose strictly religious, test_”). it is sought prong to be of the Lemon point The through achieved the observance of an daily Allred’s “ritual” towas show that intrinsically religious practice. The un- praying act; is a compassionate such an message Supreme mistakable endorsement intrinsically of an religious teachings Court’s is that the can- state activity is inconsistent with the Establish- employ religious means to serve reasons, ment Clause. For these we find legitimate otherwise secular interests. that Allred violated the Establishment motivated, Clause Id. at because her acts were 901. at least in part, by a desire to inculcate “reli- Supreme The Court was faced with simi giosity.” lar facts in District v. Schempp, School 1560, 203, 83 S.Ct. U.S. L.Ed.2d 844
(1963),
wherein
refused to conclude that
2.
daily
from the
readings
public
Bible in
Allred’s behavior also fails the “effects”
purpose.
schools had
valid secular
prong of the Lemon-Agostini test because
argued
State
that the purposes of the stat
the effect of her behavior was clearly to
requiring
ute
readings
Bible
were “the
promote praying,
religious
activity.
values,
promotion of moral
the contra
Praying
perhaps
“quintessential
reli-
diction to the materialistic trends of our
gious
Treen,
practice,” see
901,
653 F.2d at
times, the perpetuation of our institutions
explicitly
prayer
call for
requests,
teaching
223,
and the
of literature.” Id. at
invoke a moment of silence for prayer with
fact
no
furnishes
defense to a claim of ment Clause was not violated.
In Bown v.
*34
unconstitutionality under
the Establish-
District,
County
Gwinnett
School
ment
Schempp,
223,
Clause.”
374 U.S. at
(11th Cir.1997),
1464
held that a Geor
we
The “nondenominational” nature of the
to observe a moment of
day
silence each
moment of
similarly
silence is
of no avail.
their classrooms did not violate the Lemon
Weismcm,
594,
505
at
U.S.
112 S.Ct. at
test. The statute had a secular purpose
2659 (stating that the nonsectarian nature
it expressly
because
declared that the “mo
of a school-sponsored prayer
quiet
“does not ment
reflection
...
is not intended
lessen the
objec
offense or isolation to the
to be and shall not be conducted as a
number,
tors. At best it narrows their
at
religious service or exercise but shall be
worst
their sense of
increases
isolation and
conducted as an opportunity for a moment
affront.”). “[G]overnment is required to
of silent reflection on
anticipated
activ
be a neutral among religions
between
and
ities
day.”
of the
Id. at 1469 (quoting
religion
nonreligion.”
2—1050(b)).
§
Mitchell
O.C.G.A.
Moreover, the
20—
Helms,
2530,
120 S.Ct.
sponsor
statute’s
stated that he “viewed
2578,
(2000)
147 L.Ed.2d
(emphasis
660
the Act not as providing for
prayer,
school
added)
omitted).
(quotation and citation
but rather as providing for a moment for
“It
firmly
is now
established that a law students to collect their thoughts, focus on
may'be
‘respecting
one
an establishment of
day,
the upcoming
begin
develop
religion’ even though its consequence is
self-respect
discipline.”
Id. at 1471.
promote
not to
religion’
‘state
and even
statute,
Because the
actually imple-
though it does not aid one religion more mented, did not have
effect of promot-
than
merely
another but
all
benefits
reli
ing
inhibiting religion,
it also satisfied
gions alike.” Comm.
Pub. Educ. v.
prong
second
of the Lemon test. The
756,
Nyquist,
771,
413
2955,
U.S.
announcement made over the school loud-
2964-65,
(1973).
1289 reasonably conclude could jury “[n]o that that stu- suggest should teachers that like-situated, teach- reasonable’ ‘every that reflection quiet the moment dents use ... necessarily know would principal er or indication no found and we prayer,” euphem- as a ‘prayer’ word using the prayer encouraged any teacher “that silence,’ violated free- ‘moment ism for stated guidelines violation religion.” or freedom religion dom of Id. Bulletin.” Administrative 10). at We (Mem. June Op., distinguishable easily case is The instant disagree. forced again Allred, taking far from in that from Bourn saying go without it should By now of silence moment her steps to ensure ad- teacher or for a activity, unconstitutional religious aas regarded at their (or acting someone it as labeled ministrator repeatedly affirmatively and voluntary behest) aloud to lead students moment characterization such. Her at 82 U.S. Engel, 370 v. Duval See prayer. in Adler important; of silence of non- recitation (prohibiting at Bd., S.Ct. F.3d Cty. Sch. Schempp, prayer); policy denominational a school’s Cir.2001), upheld (invalidating S.Ct. part speakers graduation student having reciting the Lord’s practice ... of board school complete absence of “the because loudspeakers each Prayer over the unequivo- ‘invocation’ such as code words *35 day). The district religion.” connoting cally to overlook willing case in this was court from Ala- II, case another In Jaffree frequently Allred would fact that
the Establish- unconstitutional involving bama “ ‘pray’ in- the word by using up’ ‘slip[] Court Supreme practices, ment Clause silence,’ ... of ‘moment words of the stead condemned and step further a went of moment the end indicating by one of the when of silence moment of a use ‘amen’, poor a word by voicing the silence insti- expressly it was for which purposes get ‘let’s substitute, for the words perhaps, 38, 105 S.Ct. prayer. tuted ” 6). 2001, 4, at (Mem. Op. June to work.’ Alabama state 29. The L.Ed.2d however, important labels, quite are Such statute, Ala.Code a had legislature enacted only purpose be- determining not public school 16-1-20, that requiring § (discussed in the at issue actions hind the through grades sixth first teachers nature, Subsection), but also their prior “for of silence daily moment a establish they which effects, degree to and the likely at 2481. S.Ct. at Id. meditation.” as state endorse- perceived likely to be 16-1-20.1, § later, it enacted years Three religion. of facilitation, ment, promotion or all required) (though not permitted which moment of a to hold reasons, no trouble have school teachers public we For these voluntary pray- or to bla- “for facts amount meditation that silence concluding these original agreed that parties the Estab- The of er.” repeated violations tant only moment statute, for providing Clause. lishment constitutionally meditation, was for silence B. later that the held The Court permissible. “vol- specified enactment, expressly which Allred in that Having established purpose as an additional untary prayer” the Es under rights fringed Holloman’s dur- activity perform for, permissible must assess Clause, now tablishment silence, unconstitu- moment ing, “clearly estab were rights these whether the enactment that It found tional. The her actions. the time lished” at any not motivated § “was 16-1-20.1 held, explanation, without court district clearly purpose-indeed, secular statute Holloman contends that the School purpose.” had no secular Id. at Board be sued.
S.Ct. at
It
that,
2489-90.
further noted
A.
notwithstanding
general
permissibility
silence,
of a moment of
expressly designat-
Monell
states
“when execu
ing it as an opportunity
prayer
for
“con-
tion
government’s
of a
policy ...
inflicts
vey[s] message
of state endorsement and
injury
...
the government
[then]
as an
prayer.”
promotion
Id.
entity
responsible
§
under
1983.” Id. at
concluded,
2491. The
Court
“Such an 694,
In this But, the dele authority to someone else. high also note that each school’s character the must be such that decision is by gation had the plan approved education to be subject by policymaking the forwarded review being School District before Brice, v. 136 F.3d Department authority.”); Education. Gattis the State onto (“If (11th Cir.1998) us, county a official it 725 For that are unclear reasons jury based promote good citizenship, pledge to make this determination but the was a were trial, part impossi- of it.” the it would be evidence jury she to likewise conclude that ble the Earlier, (based held on the facts 15. poli- acting pursuant to official board an interpreted light us most favor- before circumstances, cy. howev- Even under those plaintiff) the failed to estab- able to Allred had er, still held liable under the Board could engaged of law that she was lish as matter any other theories discussed this the discretionary job of her when function Part. daily prayer. If moment of silent she held her 1292
holds final policymaking authority for authority. the principal’s While the decisions subject county the area of alleged clearly effect, had legal immediate the fact violation, constitutional that official’s deci- that at least two other entities could re- sions constitute county policy.”). A verse those decisions was inconsistent with employee member or of a governing body the notion that the principal was a final policy is a final only maker if his decisions decision maker. have legal effect without further action by The School Board would have us rest Matthews, the governing body, see this case on Denno because the Parrish (“[E]ven F.3d if of gov- [member High School student handbook specifies erning entity] given the power to se- that students have “the and the re- lect which positions would be eliminated sponsibility to express school-related con- ... his selections still accepted had to be grievances cerns and to the teachers and by a majority such, of the board. As [that administrator(s).... [I]n event possessed policymak- member] never final grievance cannot be by settled ing power ”), himself .... if gov- procedure, ... may then student erning body power lacks the to reverse pursue grievance Superinten- decision, the member employee’s or see dent of Schools Quinn and then to the v. Board.” Cty., Monroe 330 F.3d Denno, (11th however, Cir.2003) (“Because the student was sus- [gov- pended, that, and we ernmental found entity] power under the has to re- cir- cumstances, any verse policies termination decision outlined in by made government official], [individual student handbook he is not “allowed for meaningful policymaker final review of regard Denno, suspension.” termi- Denno’s nation decisions at the library.”). To 218 F.3d at de- termine if someone is a policy maker, final
we look only to “state and Our posi- ruling local in Denno was based on law,” tive but also “custom usage hav- theme through reiterated much of our ing the force of law.” McMillian v. John- caselaw-—in assessing govern whether a son, 88 F.3d Cir.1996); mental decision maker is a final policy see Dist., also Jett v. Indep. Dallas Sch. maker, we look to whether there is an 105 actual “opportunity” for “meaningful” re (1989) L.Ed.2d 598 (holding that an indi- view. See Oladeinde City Birming vidual can policymaker” be a “final either ham, (11th Cir.2000) by operation of positive “state local (emphasizing that there must be an actual law” usage “custom or having the “opportunity” for “meaningful administra law”). force of We review de novo a dis- tive review” before we conclude that a trict court’s ruling about whether an indi- governmental decision maker lacks final *38 vidual is a policy final maker. Scala v. policymaking authority); Scala, 116 F.3d City Park, Winter 116 F.3d 1401 of (“Final at 1401 policymaking authority (11th Cir.1997). particular over a subject area does not Bd.,
In Denno v.
School
vest
an
218 F.3d
official whose decisions in the
(11th
1277
Cir.2000),
subject
we held that
area are
the exis-
to meaningful administra
tence of a
review.”)
process
tive
three-step
allowing par-
added);
(emphasis
see also
ents
appeal
to
a principal’s decision to
Grech v. Clayton
an
Cty.,
(11th
area assistant
superintendent
Cir.2003) (Barkett,
and ulti-
J., concurring)
mately
(“An
to the School Board was sufficient
official must have discretion in a par
strip
to
the principal of final policymaking ticular area of law in order to exercise final
irreversible,
“appellate”
the
or otherwise
area -and
in that
authority
policymaking
hand-
review”)
in the student
outlined
procedures
significant
subject to
may not be
Harland would
Watkins,
pursued,
be
book
added);
Bowen
(emphasis
than fi-
the initial —rather
merely
(“If
act as
Cir.1982)
higher
a
offi-
F.2d
policy maker.
a decision
to overrule
power
the
has
cial
nal—
so,
does
never
matter
practical
aas
but
“Corporal
the
interpret
could also
We
ef-
the
may represent
maker
the decision
hand-
the
student
section
Punishment”
question.”).
authority,on
final
fective
final
to Harland
delegation
book as
regarding
authority
decisionmaking
no
case, there was
instant
In the
It
punishment.
corporal
administration
by the
meaningful review
opportunity
reads:
hand
the student
While
Board.
School
an
maintain
to establish
In order
multi-step appellate
an formal
set out
book
to learn-
conducive
climate
educational
on
theoretically available
that was
process
cor-
reasonable
permits
Board
ing, the
not,
practical
aas
could
paper, Holloman
of students
punishment
poral
of it. Graduation
matter,
advantage
take
If such
District.
of the School
schools
Harland
away, and
days
barely
few
ad-
it
be
required,
shall
punishment
punish
“stay” Holloman’s
to
not offer
did
care, tact, and caution
ministered with
In
review.
sought Board
he
ment while
designee
or
principal
his/her
as to whether
deed,
is silent
record
policies.
Board
accordance
intervening meet
be an
even
there would
depo-
to
in his
opportunity
testified
Principal
or other
Adkins
the Board
ing of
Vice
poli-
if the School
Board
no other
oversight. Even
there were
its
sition
invoke
post
punishment.
in an ex
review
corporal
engage
regarding
to
cies
Board were
the fact remains
punishment,
and humiliation
pain
A student’s
to
undone. Due
could not be
paddling
un-
cannot
violence
physical
act of
year, the
school
impending end
un-spanked.
done;
cannot be
Holloman
suspension
punishment
meaningful Board
any
In the absence
—unlike
poten
postponed
not be
Denno —could
adminis-
prior to the
mechanism
oversight
review;
had
Harland
Board
tially allow for
cannot
we
corporal punishment,
tration of
did not
if
made
clear
Harland had been
conclude that
help but
re
not
he would
to punishment,
submit
authority in
policymaking
final
delegated
day.
graduation
diploma
ceive
Cf.
a student.
spank
determining when
595, 112
at
Weisman,
S.Ct.
integrat-
without
power
him this
granting
society
in our
knows that
(“Everyone
pro-
review
pre-spanking
into the
ing itself
graduation
high
in our culture
itself
necessarily bound
cess,
Board
occasions.”).
significant
most
is one
life’s
Thus,
Board’s
the School
his decisions.
cor-
effectively unreviewable
delegation
that Har-
holding
say, our
Needless
authority constitutes
punishment
poral
in this
maker
final
decision
land acted as
upon
basis
alternate
yet
always acts
related
he
mean that
context does
mak-
decision
a final
McMillian,
Harland was
find that
“[a]n
we noted
as such. As
on how
depending
Consequently,
er.
policymak-
final
entity may be a
official
trial,
Board
develop ultimately
facts
actions but
respect
some
er with
*39
Amend-
the First
under
may
held liable
be
other occa-
On
F.3d
others.” 88
Hol-
punish
his decision
either
ment for
meaningful oppor-
a
sions,
there is
where
constitutionally pro-
engaging
review,
for
loman
Board
tunity for substantive
Holloman
punish
expression, or
accompli
tected
a
is
punishment
where
fait
engaging
unprotected expression
for
on that the “situation municipal liability”
impermissible viewpoint-based grounds.
“analogous”
question
to the
supervisoral
liability), and need
necessarily
be com
Regarding
the Establishment
by
mitted
several people
depart
within a
issue,
Clause
we find that Allred was not a
agency.
rights
ment or
system
When
are
policy
prayers
final
maker. The
were re
atically
basis,
on a near-daily
violated
such
of the character
part
cited
education
as.
abuses are sufficiently egregious to war
as discussed
program, which
earlier was
supervisory
rant
liability,
if
even
it is a
subject to School Board
expressly
approv
single “bad apple” engaging in the re
Allred could not
Consequently,
al.
have
peated pattern of unconstitutional behav
policy
area,
maker in
the final
been
ior.
Praprotnik,
See St. Louis v.
Establishment
and Holloman’s
Clause
112, 130,
99 L.Ed.2d
the School
against
Board cannot be
claims
(1988)
(noting that
liability
vicarious
this basis.
supported on
§
under
1983 appropriate
“if a series of
decisions
a subordinate official [singu
C.
lar] manifested a
usage’
‘custom or
Supreme
recog
Court has
supervisor
which the
must have been
aware”)
municipal
added).
nized
governing
entities
(emphasis
Consequently,
may be held
liable
unconstitutional
systematic
acts
based on the
frequency of these
of employees
pursuant
violations,
that occur
to a
jury
mu
could conclude that the
Monell,
nicipal “custom.” See
practice
Board knew of
yet
neverthe
690-91,
Holloman and
that a “custom” or
“practice”
disciplining
students for fail
Allred is not
summary
entitled to
judg-
(or
ing
to recite
of Allegiance
ment on qualified immunity grounds
engaging
non-disruptive
protest
against
Speech
Clause claim to
pledge)
existed in the school
compelled
be free from
speech,
Speech
his
district. Consequently,
may
not Clause claim to affirmative freedom of ex-
pursue
Speech
his
against
Clause claim
pression,
.Speech
his
claim
Clause
to be
theory.
Board under this
free of viewpoint discrimination, or his Es-
tablishment Clause claim.
contrast,
practice
Allred’s
Harland is not entitled to summary
conducting daily
moment for silent pray
judgment
qualified
immunity grounds
actually
er—which she
referred to as a
against Holloman’s Speech
claim
Clause
systematic
“ritual” —was sufficiently
to be
compelled
be free from
speech,
Speech
his
considered a pattern or custom for which
claim
Clause
to affirmative freedom of ex-
the Board
be held accountable. Our
pression, or
Speech
Clause claim to be
that,
precedents are clear
for constitution
viewpoint
free from
discrimination. We do
al
sufficiently
violations
“widespread”
not consider
question
of Harland’s en-
governmental
for a
supervisor to be held
titlement
to summary judgment against
liable, they
frequency,
need occur with
see
Holloman’s Establishment Clause claim
Brown, 906
(holding
F.2d at 671
that viola
because Holloman abandoned this issue on
“obvious, flagrant,
tions must be
rampant,
appeal.
and of continued duration” to
a super
hold
liable);
visor
see also
Kemp,
Greason v.
Holloman has successfully articulated
Cir.1990)
(noting
against
claims
the School Board for viola-
*40
if
even
I also believe that
disruption.1
to be free
right
Clause
Speech
his
tions of
right to
Amendment
(under
had a
First
an “official
speech
compelled
from
recita-
to
in
air
the
right
fist
the
Speech Clause
raise his
theory), his
policy”
(under
certainly
right
such a
expression
Pledge,
the
tion of
in affirmative
engage
theory),
law.
in our case
policymaker”
clearly
final
to
not
established
“delegation
was
to be free from
claim
Speech
his
Clause
conclusion,
majority’s'
the
agree
I
with
(also
under
discrimination
viewpoint
II-D of its
to Part
respect
with
though,
theory),
policymaker”
to a final
“delegation
expression
Holloman’s
opinion. While
(un-
rights
Clause
his Establishment
in
class-
constitutionally protected
the
not
or a “custom”
policy”
an “official
der either
he
inherently disruptive,
it is
because
room
court’s
district
reverse the
theory). We
First Amend-
clearly
has a
established
still
and reinstate
summary judgment,
of
grant
against
not
discriminated
right to
ment
the Board.
against
claims
Holloman’s
commu-
viewpoint he is
the basis of the
on
AND REMANDED.
REVERSED
Legal
nicating. See Cornelius NAACP
Fund, Inc., 473 U.S.
and Educ.
Defense
concurring
WILSON,
Judge,
Circuit
87 L.Ed.2d
dissenting
part:
part
(1985) (‘While
validity and
accept the
II-A,
II-B of the
I,
join
I
Parts
justifications offered
of the
reasonableness
that there
hold
majority’s opinion, which
relevant
excluding [the
by petitioner
fact as to whether
material
of
an issue
an
save
justifications cannot
those
speech],
say
failing to
punished for
Holloman was
desire
in fact based
the
that is
exclusion
(“the Pledge”),
Allegiance
Pledge of
view.”).
particular point
suppress
to
Holloman’s
true, would violate
if
which
material fact as
issue of
genuine
is a
There
not
right
constitutional
clearly established
were moti-
Harland
Allred and
to whether
However,
respectful-
I
Pledge.
say
suppress Holloman’s
a desire to
by
vated
II-C,
In Part
Part
II-C.
ly dissent
if
viewpoint, which
unpatriotic
apparent
if Holloman
holds that even
majority
First
true,
violate
would
raising his
fist
in fact punished
Thus,
with
I concur
right.
Amendment
Pledge
during the recitation
the air
respect
majority’s conclusion
say
merely failing
than for
rather
opinion.
its
Part II-D of
is an issue material
there
Pledge, then
majori-
addition,
join
I
Part IV of the
In
First Amendment
as to
fact
whether
an
there is
holds that
ty’s opinion,
addition,
major-
right was violated.
Allred
toas whether
material fact
issue of
Amendment
a First
such
ity holds that
under
rights
clearly established
violated
in our case law.
clearly
established
right
leading her
Clause
the Establishment
rather,
contend,
that Hollo-
I
disagree.
I
of silence.
moment
prayerful
class in a
Amendment
have a First
man does
in the result
However,
I
while
concur
air
fist
his clenched
raise
(for
Part IV
stated in
the reasons
Part III
recitation
during the school’s
join the
I
majority’s opinion), cannot
have a First
he would
any more than
not act
Allred did
holding
majority’s
air
his fist
right to raise
Amendment
when
“discretionary function”
her
within
act is inher-
an
class. Such
during math
of silent
moment
in a
the class
she led
every
has
and a
disruptive,
teacher
ently
rather,
hold,
Allred
I would
prayer.
or her
in his
prevent such conduct
right to
discretionary function
her
within
acted
any potential
prevent
order to
classroom in
here.
type
punishment
inflicted
ety
propri-
upon
decide the
called
1. We
*41
in
leading
prayer,
sign-”
her class
silent
but
Majority
I
Opinion
when
1270.
agree
violated the Establishment Clause
that
she
Holloman’s First Amendment
right to
doing.
Speech
implicated,
so
Free
but we
must be mindful that “the constitutional
join
I
Finally,
majori-
also
Part
V
rights of
in public
students
school are not
only
ty’s opinion
to the extent that it holds
automatically coextensive with
rights
is an
there
issue of material fact
toas
in
of adults
other settings.” Bethel Sch.
whether the
School Board
be liable
Fraser,
675, 682, 106
Dist. v.
S.Ct.
punishing
Holloman for remaining si-
(1986).
3159,
tion, inherently and thus distracts stu- record that in fact distracted legitimate portion dents from a cur- gesture, students with his which would Holding riculum. one’s fist in the air is distinguish further the instant action from “carrying more like banners” which “in- raising Burnside. After Holloman’s act of students,” Burnside, herently distract[s] during his fist Pledge, ap- students wearing 363 F.2d at than a button on proached their teacher to complain that a shirt. a have a right Would student expression Holloman’s not “right.” up sign during hold a the recitation of the majority The reasons that this fact alone is Pledge, long as the student does not sufficient to a disrup- show material flag? obstruct others’ view of the The majority tion. While the is correct that question plainly to that is answer “no.” prohibit expression schools cannot on the in Holding one’s fist the air is the same that may disagree basis others with the holding sort of communication as up a expression, content of the the students’ sign, majority as the even It admits. only comments not disagree- demonstrate compete meant to for students’ attention ment with the content of Holloman’s ex- unnecessarily and distract students from pression, gesture but also Pledge. the recitation of the It is not a during “distract[ed] minds” a cur- passive expression, wearing the[ir] like a button portion riculum day. of the school on the front of Id. holding one’s shirt. Like The students’ up sign, inherently a it comments demonstrate that is the sort of they at activity that least focused their attention during during distracts students portion class. a a of the recitation may While student have more of the on express precisely freedom to himself Holloman’s fist—which outside of is what is class, by students in the classroom expression are limited intended such than —rather passive expressions that do not on the planned saying inher- curriculum of ently public distract A Pledge.3 students. majority
3.
approach "ap-
claims that this
the teacher or with the curriculum for other
pears
ignore
principle
instance,
...
that student
students’ attention. For
we said in
(or
expression
cause)
likely
must cause
be
a
may prohibit
Burnside that a school
"the ex-
disruption
change
'material and substantial'
... be-
of conversation between students”
Thus,
Majority
fore
Opinion
during
be curtailed.”
class.
Id. at 748.
a teacher
ignore
principle,
may prohibit
1272. I do not
punish
but
a student for whis-
disagree
majority
class,
pering
rather
during
with
what we
to his classmate
even if it
"brief,
overlooked,
meant in
public
easily
Burnside when
said that
causes a
de mini-
only infringe
impact.”
schools can
on a
Majority Opinion
student’s
mum
at 1272.
speech
"materially
substantially
when it
whispering
One student
to another student
requirements
appro-
during
with the
competes
interfere[s]
class
with the
teacher
priate
students,
discipline
operation
in the
attention of other
and thus "materi-
Burnside,
ally
school.”
Banks, F.Supp. added). at 295. The court regulation Such a would violate in opinion, continued later the the principle central of Barnette. See Morris, (3rd Here, Barnette, Lipp as in v. regulation the re- F.2d Cir.1978) curiam) communicate, quired by (per the individual to (holding that forc- ing a standing, acceptance respect his of and student to stand is unconstitutional requires for all it flag engage that for which our is but a because a student “to in symbol. implicit what amounts to expression by standing respectful attention while the words, Id. at 296. In other the district administered”). flag being salute is holding court’s was based on reasoning policy of Barnette. The school’s of forcing While it is true that remaining seated a during Pledge student to stand vio- during Pledge may also be construed right way lated the student’s First Amendment a speaking, remaining as seated is compelled speak not to be or a in express already the class of those activities particular Any by belief. discussion are afforded the more protections absolute Pledge Allegiance during Reciting the ¡Barnette i.e., partici- not to right — day legitimate activity a the school that the Tink- Pledge. To hold in the pate curriculum, as con- just legitimate to a student applies standard er-Bumside history class. ducting While naath Pledge during the remains seated who required participate in student is not partici- not to right limit a student’s would in Pledge, engage a student cannot If can shown that Pledge. it pate inherently expressive conduct dis- students, do student, group of who or a from a tracts the minds of the students Pledge by remaining in the participate I portion day. of the school legitimate disruption, we causes a material seated of materi- would hold that there is no issue to defer to the school’s would be forced justi- fact the school was al as to whether to stand dur- compel students decision Holloman, punishing punish- fied if allow Pledge. ruling Such a would ing raising ment based on his act of to “force citizens to confess public official during the recitation of the fist the air faith” in the content of the by ... act their Pledge and was not motivat- Allegiance Barnette, symbolizes. Pledge ,all suppress a desire to ed result, 1178. As a of view. point con- “fixed star in our constitutional contingent upon stellation” would become: B. judges decide is degree disruption if Holloman has a First Amend- Even Limit- particular much in a classroom. too right to hold his fist the air ment right being ing the central ab- free class, Pledge the recitation of the such participating stain from “clearly Hope established.” by applying the not be limited should Pelzer, S.Ct. *46 to a decision
Tinker-Bumside standard (2002) (quoting L.Ed.2d 666 Harlow v. absolutely protected by Barnette. more Fitzgerald, 457 U.S. L,Ed.2d (1982)). In order participate A decide not to student established, right clearly public a to the be Pledge by remain-
in the recitation of the
warning”
“fair
given
official must be
In such circum-
ing silent and seated.
statutory
a
or her conduct violates
or
stances,
applies.
in
holding
the
Barnette
741, 122
right.
id. at
constitutional
See
hand,
in the
raising
On the other
one’s fist
Recently,
Supreme Court
2508.
S.Ct.
way
a
in
during
Pledge
air
is not
improperly
in
that we
used a
Hope held
in
participating
a
abstains from
student
demanding
when
“rigid gloss”
only
It can
be
as
Pledge.
construed
“materially
previous
cases be
simi-
facts
Thus,
are
Barnette and Banks
expression.
applicable case in
lar” to the facts of the
act,
rath-
applicable to Holloman’s
but
clearly
for the law to be
established.
order
I indi-
apply.
er Tinker and Burnside
As
739,122
There are other
Id. at
S.Ct. 2508.
above, I
Holloman’s act of
cated
believe
comparing the facts
ways, though, besides
during
in the air
class is
raising his fist
previ-
facts of
instant case with the
of the
from the act of wear-
easily distinguished
cases,
public
if a
official
ous
to determine
during
an arm band
class
ing a button or
act
warning”
“fair
that a certain
given
during
raising one’s fist
the air
because
statutory
provi-
a
or constitutional
violated
day
portion
curriculum
of the school
are some cases which
sion. There
students,
thus ma-
inherently
clarity,”
distracts
even in the
provides
law
“obvious
ap-
in which courts have
terially disrupts
requirements
absence of instances
particular
to
general principle
discipline.
applied
propriate
Wilson,
constitutionally protected. The Tink-
Vinyard, v.
311 F.3d was
facts. See
(11th Cir.2002).
test
is
the student
majority
er-Bumside
whether
The
“materially
substantially
expression
constitutional
holds that Holloman’s
ap-
requirements
with the
interfere[s]
air
the recita-
put
to
his fist
discipline
operation
propriate
clearly
tion of the
established
Burnside,
ty’s opinion. application Its the “discre- authority”
tionary requirement to Allred’s in leading prayer act of her class silent However, stringent. agree too I that All- qualified red is nonetheless not entitled to immunity majority for the reasons the in Part opinion.
states IV its America, UNITED STATES of Plaintiff-Appellee,
III. A raising student his fist the air dur- ing portion day a curriculum of the school AMEDEO, Damon Defendant- engages inherently in an act that distracts Appellant. teacher, A student class. there- No. 03-11252. fore, may prohibit engaging student from Thus, activity. join in such I Part cannot Appeals, United States Court of majority opinion’s it II-C Eleventh Circuit. that there is an holds issue of material fact May as to whether Holloman’s First Amend- right to if speech ment free was violated punished
he holding his fist air during the recitation of the if punishment was not motivated suppress
desire to a particular viewpoint. I also majority’s holding dissent right that Holloman’s hold his fist clearly qualified am was established for immunity purposes. addition, agree
In while I with the ma- jority’s conclusion that there is an issue of
material fact as to whether Allred violated clearly established under
the Establishment Clause when Allred led prayer,
the class in a moment of I silent join majority’s opin- cannot Part III of the view, my ion. Allred acted within her discretionary leading function when her prayer.
class Finally, join majority’s I Part ofV the opinion, only but to the extent that holds that the School Board held if liable punished remaining Holloman was si-