659 F.3d 359 | 5th Cir. | 2011
Lead Opinion
This is a qualified immunity appeal that asks us to decide whether defendant school principals violated clearly established law when they restricted elementary students from distributing written religious materials while at school. Answering this question requires recourse to a complicated body of law that seeks, often clumsily, to balance a number of competing First Amendment imperatives. This body of law failed to place the constitutionality of the defendants’ conduct beyond debate, so they are entitled to qualified immunity. Parts I through IV of this opinion, together with the separate concurrences of Chief Judge Jones, Judge King, Judge Garza, Judge Owen and Judge Dennis, reflect the views of the majority of the en banc Court granting qualified immunity to the principals and the judgment reversing the district court.
Although the law was not clearly established, a separate majority of the Court holds that the principals’ actions — as alleged in the complaint — were unconstitutional. Parts III A, C, and D of Judge Elrod’s opinion represent the opinion of the court on these issues, with special concurrences by both Judge Prado and Judge Owen.
I
The plaintiffs in this case are four former elementary-school students in the
Before us today are two individual defendants’ motions to dismiss for qualified immunity.
A
Plaintiff Jonathan Morgan alleges that Principal Swanson violated his First Amendment rights in connection with a so-called “winter-break” party at Thomas Elementary in December of 2003. The winter-break parties were conducted yearly at Thomas Elementary in individual classrooms for attendance by all students. The parties were conducted pursuant to written “guidelines and regulations”
Third-grader Jonathan Morgan wished to distribute a gift to his classmates at the 2003 winter-break party, as he alleges was common practice at his school. Students typically brought gifts for their classmates to the winter-break parties in gift bags, or “goody bags.” Morgan’s proposed gift was a “candy cane ink pen,” attached to a laminated bookmark containing a written message, “The Legend of the Candy Cane”:
A candy maker wanted to invent a candy that was a witness to Christ.
First of all, he used a hard candy because Christ is the Rock of Ages. This hard candy was shaped so that it would resemble a “J” for Jesus, or, turned upside down, a shepherd’s staff. He made it white to represent the purity of Jesus.
Finally, a red stripe was added to represent the blood Christ shed for the sins of the world, and three thinner red stripes he received on our behalf when the Roman soldiers whipped him. Sometimes a green stripe is added as a reminder that Jesus is a gift from God.
The flavor of the cane is peppermint, which is similar to hyssop. Hyssop is in the mint family and was used in the Old Testament for purification and sacrifice. Jesus is the pure lamb of God, come to be a sacrifice for the sins of the world.
So, every time you see a candy cane, remember the message of the candy maker: Jesus is the Christ!
Morgan intended to distribute these “Legend of the Candy Cane” pens inside his gift bags, which would be inscribed, “TO: [Classmate’s name], FROM: Jonathan Morgan.”
Morgan’s parents suspected, based on conversations with other parents, that school officials would not allow Jonathan to distribute the “Legend of the Candy Cane” in the classroom. Thus, they arranged a' meeting with Principal Swanson on December 4, 2003.
The next day, December 18, 2003, counsel for the school district responded.
Although the district’s official position was that no outside materials were to be circulated in the classrooms, it maintained that it would be within its rights to specifically restrict distribution of religious messages in the classroom.
Despite having been told that Jonathan would not be allowed to distribute “The Legend of the Candy Cane” at the party, the Morgans nevertheless brought the items to the classroom the day of the party. They confronted Principal Swanson, who again offered that the Morgans could leave the gifts in the library for his classmates to pick up. The Morgans complained that they had observed other students bringing their goody bags into the
The Morgans were unsatisfied with Swanson’s “no materials” loudspeaker announcement because Swanson failed to return to Jonathan’s classroom and personally require the other students to remove their goody bags. After the announcement, they confronted Swanson again, this time complaining that Jonathan’s teacher, Mrs. Helmke, had given a different explanation for why he would not be allowed to distribute “The Legend of the Candy Cane” — its religious viewpoint. The Morgans complain that Swanson failed to “correct” or “apologize for” Mrs. Helmke’s actions, or to “state that Mrs. Helmke acted contrary to PISD policy and custom” or take “corrective measures” against her. In the end, although district officials offered a viewpoint-neutral explanation, the Morgans allege that Jonathan was the only student forbidden from distributing his chosen gift at the 2003 winter-break party.
B
Plaintiff Stephanie Versher alleges that defendant Jackie Bomchill violated her First Amendment rights by prohibiting her from distributing written religious materials at Rasor Elementary School on three separate occasions. All of these occurred in January of 2004, during Stephanie’s second-grade year. In the first incident, Stephanie attempted to distribute to her classmates tickets to a passion play — -a “dramatic representation of the scenes connected with the passion and crucifixion of Jesus”
The complaint provides little detail regarding Stephanie’s distribution of the passion-play tickets. It is unclear where she distributed them: we do not know whether it was in the hallway, the classroom, the restroom, or the playground. Nor is it clear when she distributed the tickets, beyond the conclusory label that she distributed them “during non-curriculum times.” We do not know whether Stephanie distributed the tickets during passing period between classes, in the classroom before the bell rang, or in the moments in between her teacher’s lessons. It is also unclear how many tickets Stephanie distributed. The complaint alleges that she approached other students to “talk to [them] about the drama presentation depicting the crucifixion of Jesus Christ” and “asked them whether or not they would like to attend.” But it fails to allege how many of them accepted the tickets, nor whether she offered them to
When defendant Jackie Bomehill, the principal of Stephanie’s school, became aware that Stephanie was distributing these tickets, she instructed Stephanie’s teacher to stop her from distributing them. She also asked Stephanie’s teacher to collect the tickets from the students that had already received them.
The second incident between Stephanie and Principal Bomehill occurred later that same month, in conjunction with Stephanie’s “half-birthday” party. PISD allows students to celebrate their birthdays or “half birthdays” (for students born in the summer) at school with their classmates. These parties occur during the school day, “primarily at the end of the lunch period or during a snack break between instructional time.” The complaint notes that the school allows students to bring a snack and a small gift to distribute to their classmates. It does not indicate whether these parties typically occur in the classroom, nor whether classmates’ attendance is optional or mandatory.
The day of Stephanie’s “half-birthday” party, her mother Sherrie Versher brought brownies to share with Stephanie’s classmates, with two pencils attached. One was inscribed with the word “Moon,” and the other read, “Jesus loves me this I know for the Bible tells me so.” Sherrie Versher apparently was concerned that Stephanie would not be allowed to distribute the “Jesus” pencils because of their religious message, so she proceeded to Principal Bomchill’s office. At their meeting, Bomehill informed Sherrie Versher that Stephanie could distribute the brownies and the “Moon” pencil, but that she would not be allowed to distribute the “Jesus” pencils. Versher then left Bomchill’s office to call her attorney. It is not clear what advice Versher received, but when she returned, she sought only to confirm that the reason the “Jesus” pencils were not allowed was their religious message. Bomehill confirmed this and offered Versher an alternative to distributing the “Jesus” pencils during the school day: Stephanie would be allowed to distribute the pencils after school “outside of the school building.”
During the time Versher was in Bomchill’s office, Versher was presented with a letter from John Beasley, a campus security official, regarding the earlier incident with the passion-play tickets. Campus security was apparently under the mistaken impression that Sherrie Versher herself (rather than her daughter) had distributed the tickets at Rasor Elementary. The letter informed Sherrie Versher of the school’s policy forbidding distribution of materials by an outside person without permission and indicated that “appropriate law enforcement officials may be called when a person refuses to follow the procedures for submitting materials and fails to leave the premises when asked.”
After the meeting in Bomchill’s office, the situation escalated into hostility. As Sherrie Versher left the school offices, she “thought out loud to herself’: “ ‘Satan is in the building.’ ” It is unclear to whom this “Satan” commentary was directed, but after her “Satan” statement, she alleges that school officials “stalked” her at various locations throughout the school building. Sherrie proceeded to the school cafeteria, where her daughter Stephanie was eating lunch. Sherrie informed her daughter that she would not be allowed to distribute the “Jesus” pencils during school, but that Bomehill had agreed she could distribute
The third Versher-Bomchill incident occurred later that day, after school. Stephanie Versher again attempted to distribute her “Jesus” pencils, this time “outside of the school building on the school sidewalk and lawn.” The complaint carefully alleges that Stephanie was standing “amongst a small group of her classmates,” and that she was handing out the “Jesus” pencils only to classmates that approached her and requested one. When Bomchill saw Stephanie distributing the pencils after school, she approached her and told her she could not distribute them “while on PISD school property,” and that if Stephanie tried to distribute the crucifixion tickets or “Jesus” pencils again “while on school property at any time, she would be ‘kicked out of the school.’ ” This touched off a disagreement between Bomchill and Sherrie Versher, who was standing by watching her daughter distribute the pencils. “Either Bomchill or Beasley then accused Sherrie Versher of being ‘purposely defiant’ ” of earlier instructions that Stephanie could only distribute her “Jesus” pencils “outside of the building and ‘across the street.’ ” Versher asserts that this accusation was false and represents a retreat from Bomchill’s earlier position that Stephanie could distribute the religious pencils so long as she was outside the school.
II
The action before us is an interlocutory appeal from the district court’s denial of a motion to dismiss on qualified immunity. “[A]n order denying qualified immunity, to the extent it turns on an ‘issue of law,’ is immediately appealable.”
III
The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be le
Courts have discretion to decide which prong of the qualified-immunity analysis to address first.
IV
We hold today that the principals are entitled to qualified immunity because clearly established law did not put the constitutionality of their actions beyond debate. When educators encounter student religious speech in schools, they must balance broad constitutional imperatives from three areas of First Amendment jurisprudence: the Supreme Court’s school-speech precedents, the general prohibition on viewpoint discrimination, and the murky waters of the Establishment Clause. They must maintain the delicate constitutional balance between students’ free-speech rights and the Establishment Clause imperative to avoid endorsing religion. “The many cases and the large body of literature on this set of issues” demonstrate a “lack of adequate guidance,”
A
Before discussing the substantive law in this case, we turn to first principles to guide our determination of what it means for the law to be “clearly established.” When considering a defendant’s entitlement to qualified immunity, we must ask whether the law so clearly and unambiguously prohibited his conduct that “every ‘reasonable official would understand that what he is doing violates [the law].’ ”
Where no controlling authority specifically prohibits a defendant’s conduct, and when the federal circuit courts are split on the issue, the law cannot be said to be clearly established.
Further, the Supreme Court has held that generalizations and abstract propositions are not capable of clearly establishing the law. The Supreme Court recently — and forcefully — underscored this point in Ashcroft v. al-Kidd, where it noted, with some exasperation, that it has “repeatedly told courts ... not to define clearly established law at a high level of generality.”
[T]he right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause ... violates a clearly established right.... But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstone of [qualified immunity].”31
Although the Supreme Court has repeatedly admonished courts not to define clearly established law at a high level of generality, this does not mean that “a case directly on point” is required.
The al-Kidd Court, in admonishing lower courts “not to define clearly established law at a high level of generality,” did not discuss or even cite Hope, nor other earlier opinions reflecting a similar concern that a damages remedy be available for “obvious” or flagrant constitutional violations.
Because no specific and factually analogous precedent guides our determination of this case, we look first to the Supreme Court’s general school-speech precedents. In Tinker v. Des Moines Independent Community School District, the Court famously held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
We thus evaluate student speech claims “ ‘in light of the special characteristics of the school environment,’ ”
Tinker addressed the question of when and “whether the First Amendment requires a school to tolerate particular student speech” that “happens to occur on the school premises.”
This case presents the difficult question of exactly when Hazelwood’s more deferential standard applies. Neither the Supreme Court nor this Court has explained whether Tinker or Hazelwood governs students’ dissemination of written religious materials in public elementary schools, whether at official parties, after school on the “lawn and sidewalk,” or at unspecified times and in unspecified places during the school day. Nor do the facts of Tinker and Hazelwood offer much guidance. The “private speech” at issue in Tinker was the “silent, passive expression of opinion”
The critical inquiry in deciding whether speech is “school-sponsored” under Hazelwood is whether it could reasonably be understood to bear the school’s imprimatur, which is synonymous with “sanction,” or “approval.”
Further complicating our inquiry is the fact that Tinker's application in the elementary-school context has never been clearly established.
C
Rather than grapple with the complexities of applying Tinker and Hazelwood in public elementary schools, the plaintiffs urge that the law is clearly established in light of the general First Amendment rule disfavoring viewpoint discrimination. Of course, it cannot be gainsaid that “[d]iscrimination against speech because of its message is presumed to be unconstitutional.”
At argument, the plaintiffs contended that the “level-of-generality discussion is less important here” because the rule against viewpoint discrimination is absolute. But this is not so. No matter how “axiomatic”
The plaintiffs cite a handful of cases that ostensibly establish such a prohibition. But none of these cases involve student speech — let alone elementary-student speech — at school, during the school day.
Not only is there no categorical ban on viewpoint discrimination in public schools, our sister circuits have divided over the question.
Another of these cases is practically on all fours with the Jonathan Morgan incident before us today. In Walz v. Egg Harbor Township Board of Education,
D
Establishment Clause concerns add still another layer of complexity to our legal analysis in this case. Despite widespread judicial recognition of the law in this area as the “the thorniest of constitutional thickets,”
Further complicating the law in this area is that other courts have held that the Establishment Clause requires educators to prohibit the distribution of religious materials in public elementary schools.
The table displays are set up and stocked entirely by private citizens who*381 are not affiliated in any way with the schools, and the. tables bear signs informing students only that they should feel free to take the Bibles or other material offered. Pursuant to district court injunction, the tables also bear a disclaimer, renouncing any sponsorship or endorsement by the school. No one is allowed to enter classrooms to announce the availability of the religious or political material, or to stand at the tables to encourage or pressure students to take the material. No school announcement or assembly is allowed to mark the availability of the Bibles or any other religious or political material. School principals are charged with ensuring strict compliance with these guidelines.91
Despite these efforts to avoid endorsement, the Fourth Circuit held the district’s policy unconstitutional “to the extent that it allows the display of Bibles and other religious material in the elementary schools of the County.”
Other circuits have recognized the risk that elementary students may misperceive neutrality toward religious speech as endorsement. For instance, in Wale, the Third Circuit noted that “in an elementary school classroom, the line between school-endorsed speech and merely allowable speech is blurred;”
The plaintiffs insist that these Establishment Clause concerns are unfounded in light of the Supreme Court’s decision in Good News Club v. Milford Central School.
E
The principals are entitled to immunity because the general state of the law in this area is abstruse, complicated, and subject to great debate among jurists. At the time of the incidents in question, neither a single “controlling authority” nor a “robust consensus of persuasive authority” had held that the First Amendment prohibits school principals from restricting the distribution of written religious materials in public elementary schools.
(1)
Factually analogous precedent failed to prohibit Principal Swanson’s conduct (restricting the distribution of religious materials at a classroom party), as did the general bodies of law discussed above. Her case is unique among our qualified-immunity cases because, in addition to no law prohibiting her conduct, one of our sister circuits had explicitly sanctioned almost identical conduct. Swanson had been advised of this precedent — the Third Circuit’s decision in Walz — before acting, as even the plaintiffs’ complaint acknowledges.
Walz could hardly be more damaging to the plaintiffs’ case against immunity, so they make a number of attempts to distinguish it. First, they argue that the gifts in Walz were not distributed between students, but rather through the parent-teacher organization (PTO). This is a plain misreading of the opinion, which indicates that Daniel Walz sought to distribute his gifts directly to his classmates.
The plaintiffs’ third attempt to distinguish Walz is that Daniel Walz was allowed to distribute his candy-cane story in an alternative location: “in the school hallway after class or at recess.”
(2)
Defendant Bomchill is also entitled to immunity. We begin our discussion of Principal Bomchill’s immunity with the after-school incident. As we discuss in the next Part, we ultimately conclude that Principal Bomchill violated Stephanie Versher’s First Amendment rights when she restricted her from distributing “Jesus” pencils outside of school hours to a small group of students who specifically requested them. We are sensitive to the outrage and concern the plaintiffs and various amici feel over this after-school incident, which involved the distribution of a small number of religious items among willing friends, outside of school hours. But our qualified-immunity inquiry does not ask what we think of a defendant’s conduct as a normative matter.
Bomchill is entitled to immunity for this after-school incident because no law gave fair notice that elementary educators may not restrict the distribution of written religious materials to elementary students on the school lawn, after school. As we dis
Neither can we ignore the Fourth Circuit’s decision in Peck, which forbade the distribution of religious materials in elementary schools on Establishment Clause grounds. Peck shares many similarities with Stephanie’s after-school incident. For instance, like the group distributing Bibles in Peck, Stephanie distributed her “Jesus” pencils only to students who specifically requested them. And just as the Bible distributors in Peck were prohibited from “encouraging] or pressur[ing] students to take the material,”
Principal Bomchill is entitled to immunity for the two remaining incidents — the half-birthday incident and the passion-play-ticket incident — for largely the same reasons. The complaint omits important facts necessary to classify the speech in either incident, as we discuss in the next Part. But even despite important missing details, we are able to conclude that Bomchill is entitled to immunity for these incidents because Tinker
V
At the 12(b)(6) stage, to hold that the defendant violated the law at step one of the qualified-immunity analysis means is simply to say that the plaintiff has stated a claim upon which relief may be granted.
A
Because we have granted immunity to the principals at step two of the qualified-immunity analysis, it is within our discretion to decline entirely to address the constitutionality of the defendants’ conduct. This flexibility was not ever thus. Indeed, until recently the Supreme Court required us in every case to address the underlying constitutional claim, so as to promote “the
The Supreme Court in Pearson outlined a number of situations where federal courts might wish to skip step one of the qualified-immunity analysis. These include: (1) “cases in which the constitutional question is so factbound that the decision provides little guidance for future cases”; (2) “when it appears that the question will soon be decided by a higher court”; (3) “[a] constitutional decision resting on an uncertain interpretation of state law”; (4) “[w]hen qualified immunity is asserted at the pleading stage,” and “the precise factual basis for the plaintiffs claim or claims [is] hard to identify”; and (5) “circumstances in which the first step of the Saucier procedure may create a risk of bad decisionmaking.”
Recent decisions suggest that the Supreme Court continues in its retreat from the old Saucier two-step analysis. In Camreta v. Greene, using stronger language than before, the Court clarified that lower courts “should address only the immunity question” in the circumstances outlined in Pearson.
We have “thought carefully” about whether to address the merits of constitutional issues before us today. We conclude that clarifying some of the law’s uncertainties would be useful to the district court’s conduct of the rest of this case — which includes official-capacity claims against the defendants and an as-applied challenge to the school’s speech policy. But we are also mindful that this appeal arises at the pleading phase. Deciding whether some of the incidents in question violated the plaintiffs’ rights “depend[s] on a kaleidoscope of facts not yet fully developed,”
B
As a preliminary matter, because it has been unclear, it should be clarified today
In affirming that Tinker-based speech rights apply to elementary students, we must be mindful of a long-established countervailing principle: in public schools, the “speech appropriate for eighteen-year-old high school students is not necessarily acceptable for seven-year-old grammar school students.”
Tinker protects private student expression where there is no “interference, actual or nascent, with the schools’ work or collision with the rights of other students to be secure and to be let alone.”
Further, an analysis of whether student speech infringes on the rights of others, including “the right to be let alone,” may also look different in the elementary-school context.
It is also true that the exceptions to Tinkers general rule, as announced in Hazelwood, Fraser, and Morse, might also look different in an elementary-school context. For example, Hazelwood applies to speech that “students ... might reasonably perceive to bear the imprimatur of the school.”
C
Having determined that Tinker applies in elementary schools, we must also conclude that Principal Bomchill violated Stephanie Versher’s First Amendment rights in connection with the after-school incident. On the facts alleged in the complaint, this incident involves private speech governed by Tinker, not school-sponsored speech under Hazelwood. A reasonable person would not have believed that Stephanie Versher’s act of handing pencils to a select few recipients after school bore the imprimatur of the school. Indeed, the complaint alleges that Stephanie distributed her pencils only to a “small group of her classmates,” and, even then, she distributed them only to students who specifically asked her for one. The speech occurred after school hours, “on the lawn and sidewalk.” There is no indication that students were engaged in any sort of structured activity at the time of the distribution, nor that the students were under the supervision of teachers, either of which might lend an appearance of imprimatur. Nor is there any indication that Stephanie distributed her materials to a captive audience of students who were not free to reject her speech.
Important to the conclusion that Principal Bomchill acted unconstitutionally is the fact that she allegedly restricted Stephanie’s “Jesus” pencils solely because of their message. From this pleaded fact, it can only be inferred that Stephanie would have been allowed to distribute her pencils if they had born a secular message. Tinker, when it applies, cannot countenance such a restriction on private student speech. In other words, a school cannot allow one student to distribute “Jesus” pencils on the school bus but forbid another from distributing “Mohammed” pencils; nor could it allow one student to distribute copies of the Democratic party platform but forbid his classmate from disseminating its Republican analog. That said, it must be clarified that we do not hold that public elementary schools must always allow students to disseminate written materials, so long as the distribution occurs outside of a “school-sponsored” activity. For example, this opinion does not reach a hypothetical rule forbidding students from sharing gifts or invitations with only a select few students, so as to avoid unfairness or hurt feelings. Rather, it holds simply that, where Tinker applies in public elementary schools, a school may not allow some speech on a given topic but not others, based solely on the content of its message.
D
We decline, for now, to pass on the constitutionality of the remaining incidents. The Supreme Court recently cautioned that, at the pleading stage, where “the precise factual basis for the plaintiffs claim or claims [is] hard to identify,” we “should address only the immunity question.”
The two remaining allegations against Principal Bomchill are that she restricted Stephanie Versher from distributing passion-play tickets while at school and restricted her from distributing “Jesus” pencils at her half-birthday party. Whether these actions violated Stephanie’s rights “depend[s] on a kaleidoscope of facts not yet fully developed.” Specifically, the complaint omits a number of facts that are essential to the determination of whether Tinker or Hazelwood governs. With respect to the passion-play tickets, we cannot determine whether the speech could reasonably have been understood to bear the school’s imprimatur because we do not know when, where, or how widely Stephanie distributed them; nor whether she distributed them during events conducted pursuant to official guidelines; nor whether she distributed them under the supervision of faculty; nor whether she “approached” other students to discuss the
The remaining allegation is that Principal Swanson restricted Jonathan Morgan from distributing “The Legend of the Candy Cane” at a 2003 winter-break party. We decline, for the time being, to pass on the issue, which depends on a number of undeveloped facts. As a preliminary matter, we are able to conclude fairly easily that the deferential Hazelwood standard governs this incident. As the district’s attorneys advised the Morgans, the winter-break parties have a “clearly defined curricular purpose to teach social skills and respect for others in a festive setting,” and the parties are “highly structured, supervised, and regulated.” Indeed, the parties are conducted in accordance with specific written guidelines that stress uniformity across the grade level. Thus, we have little trouble concluding that the winter-break parties were “school-sponsored” activities and that Hazelwood is the proper governing standard.
Having concluded that Hazelwood applies, our next task is to consider whether the school’s restriction of Jonathan’s speech was “reasonably related to legitimate pedagogical concerns.” Resolution of this question would benefit greatly from a more developed factual record, and we need not decide it now; this issue will arise again when the district court addresses the plaintiffs’ claims against the school district. Consideration of this question would benefit greatly from the testimony of school officials and argument from the district. If they wish, the plaintiffs at that time may present testimony from their own experts, argue that the school’s pedagogical concerns were not “legitimate,” or to argue that the restrictions involved were not “reasonably related” to those goals. Given that Swanson is entitled to immunity, we think it best to leave this inquiry, which involves questions of both fact and law, for summary judgment.
Conclusion
The defendants in this case are entitled to qualified immunity because existing precedent failed to place the constitutionality of their conduct “beyond debate.” Like other educators to have contended with religious speech in public schools, Swanson and Bomchill had to make on-the-ground decisions balancing constitutional imperatives from three areas of First Amendment jurisprudence: the Supreme Court’s school-speech precedents, the general prohibition on viewpoint discrimination, and the murky waters of the Establishment Clause. The law tasked them with maintaining the most delicate of constitutional balances: between students’ free-speech rights and the Establishment Clause im
In short, for the reasons stated in Part IV of this opinion, we REVERSE the judgment of the district court and REMAND with an instruction to dismiss the plaintiffs’ claims as to Swanson and Bomchill in their individual capacities.
. Parts I through IV of this opinion, granting immunity to the defendants because the law was not clearly established, are joined by Judges King, Davis, and Stewart. Judge Dennis also joins these Parts in full, except for one point of law in Part IV(A), as discussed in his special concurrence. Judge Owen joins only Parts II through IV.
Part V of this opinion addresses the constitutionality of the principals' conduct, as alleged in the complaint. Parts V(A) through (C) conclude that one of the incidents involving Principal Bomchill was unconstitutional, while Part V(D) concludes that the Court should not reach the underlying constitutional question as to the remaining incidents. Judges King, Davis, Garza, Stewart, and Dennis would not address the constitutionality of the conduct of either principal and join only in Part V(D).
. The case now before us represents a relatively small part of the plaintiffs' larger suit. The complaint mounts facial and as-applied challenges to several versions of PISD’s student-speech policy, along with claims against six school officials in their official and individual capacities. These various claims are proceeding in pieces. We have already considered and rejected a facial challenge to one version of PISD's student-speech policy. See Morgan v. Plano Indep. Sch. Dist. (Morgan I), 589 F.3d 740 (5th Cir.2009). The as-applied challenge to the school policy and the official-capacity claims will proceed on their own timetable. In other words, this is not our first word on the issues in this case, and it will likely not be our last.
. A third student, Michaela Wade, also asserts claims against Swanson. However, the complaint plainly indicates that "[t]he Wade Plaintiffs do not seek damages”; their allegations are offered only in support of the plaintiffs’ claims for equitable relief. This is an appeal from a denial of qualified-immunity, which is an immunity from claims for damages only. See, e.g., Williams v. Ballard, 466 F.3d 330, 334 (5th Cir.2006) (citing Orellana v. Kyle, 65 F.3d 29, 33 (5th Cir. 1995)). Like the district court below, we do not consider the Wade incident in determining Swanson's entitlement to immunity.
. Morgan v. Swanson, 627 F.3d 170, vacated and reh'g granted, 628 F.3d 705 (5th Cir.2010) (en banc).
. Morgan, 628 F.3d at 705.
. The plaintiffs attached to their complaint the guidelines for the winter-break parties, so we may consider them at this stage. We have previously held that, in considering a Rule 12(b)(6) motion, we look at both “the facts stated in the complaint and the documents either attached to or incorporated in the complaint." Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996).
. Jonathan Morgan is not the first student to file a federal lawsuit over an attempt to distribute some version of "The Legend of the Candy Cane.” See, e.g., Curry ex rel. Curry v. Hensiner, 513 F.3d 570 (6th Cir.2008); Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271 (3d Cir.2003); Westfield High Sch. L.I.F.E. Club v. City of Westfield, 249 F.Supp.2d 98 (D.Mass.2003).
. At the meeting, they aired a laundry-list of complaints about PISD’s treatment of student religious speech. They were unhappy, for instance, that a teacher had instructed their son to write "Happy Holidays” (rather than “Merry Christmas”) on a seasonal card for a local senior citizen, prepared as part of a school activity. The Morgans were also offended by Thomas Elementary’s characterization of the end-of-semester parties as "winter-break” parties because it is their belief that “Christians do not celebrate 'winter break’ parties.” However, the Morgans do not seek damages arising from these incidents, which the complaint does not attribute to Swanson.
. This letter was attached to the plaintiff's original complaint. The plaintiffs subsequently amended their complaint, failing then to attach the letter. This appears to have been an act of inadvertence. Like the original complaint, second amended complaint— the live complaint in this action — incorporates and discusses the letter, referring to it as "Exhibit 7.” However, Exhibit 7 is missing from the live complaint, which skips from Exhibit 6 to Exhibit 8. We can only assume that this was a good-faith accidental omission on the part of the plaintiffs, who have extensively characterized the letter in their complaint. Even if it were not, it would be proper for us to consider the letter because the complaint incorporates it by reference. See Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir.2011) (noting that “a court ruling on a 12(b)(6) motion may rely on the complaint," along with “ 'documents incorporated into the complaint by reference' ” (quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.2008))).
. Specifically, the district’s letter said:
The holiday party at issue is a classroom activity that has a clearly defined curricular purpose to teach social skills and respect for others in a festive setting. This activity is highly structured, supervised, and regulated. Thus, it is well within the school’s ambit of authority to prevent the distribution of candy canes or other media by Jonathan at the holiday party. Moreover, the school's offer to allow Jonathan to hand out his materials after class or at the designated area for distribution is more than a reasonable accommodation, and eliminates any First Amendment concerns. As you well know, the Third Circuit has recently re-affirmed, under almost identical facts to those present here, that a school's restrictions on an elementary school student's distribution of candy canes and pencils containing a religious message during a classroom holiday party did not violate the First Amendment.
. 342 F.3d 271 (3d Cir.2003).
. We note that the complaint fails to make clear the exact nature of Swanson’s involvement in this speech restriction. The complaint stops short of alleging that Principal Swanson personally allowed the other students to distribute their nonreligious gifts, even after her viewpoint-neutral loudspeaker announcement. Thus, it is difficult to discern the Morgans’ precise theory of Swanson’s liability from the face of the complaint: whether they mean to allege that she personally discriminated against Jonathan’s viewpoint, or whether they allege some theory of supervisory liability. We need not resolve this problem with the plaintiffs’ pleading, though, because we hold that Swanson would be entitled to immunity even if she had directly and personally restricted only the religious gifts.
. Merriam-Webster’s Dictionary, available at www.m-w.com.
. Behrens v. Pelletier, 516 U.S. 299, 311, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).
. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251 (5th Cir.2005) (emphasis omitted) (citing Behrens, 516 U.S. at 307, 116 S.Ct. 834).
. Id. at 252 (citing Wilkerson v. Stalder, 329 F.3d 431, 434 (5th Cir.2003)).
. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir.2009); see also Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir.2005) ("The complaint must be liberally construed, with all reasonable inferences drawn in the light most favorable to the plaintiff.” (citing Sloan v. Sharp, 157 F.3d 980, 982 (5th Cir.1998))).
. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
. See id. (noting that qualified immunity’s shield applies “so long as an official's actions could reasonably have been thought consistent with the rights they are alleged to have violated”).
. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
. Ashcroft v. al-Kidd,-U.S.-, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (emphasis added).
. Id. at 2080 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
. Pounds v. Katy Indep. Sch. Dist., 730 F.Supp.2d 636, 638 (S.D.Tex.2010); see also Nurre v. Whitehead, 580 F.3d 1087, 1090 (9th Cir.2009) ("There exists a delicate balance between protecting a student’s right to speak freely and necessary actions taken by school administrators to avoid collision with the Establishment Clause.”).
. al-Kidd, 131 S.Ct. at 2083 (emphasis added) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
. Id. at 2084 (citing Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). In a situation where no "directly controlling authority” prohibits the defendants' conduct, we look to the law of other jurisdictions “in assessing whether a reasonable [official] would have known ... that his conduct was unlawful.” McClendon v. City of Columbia, 305 F.3d 314, 329 (5th Cir.2002) (en banc) (discussing Wilson, 526 U.S. at 603, 119 S.Ct. 1692).
. Wilson, 526 U.S. at 617-18, 119 S.Ct. 1692.
. See id. (holding that qualified immunity was appropriate because "[bjetween the time of the events of this case and today’s decision, a split among the Federal Circuits in fact developed”).
. Id. at 618, 119 S.Ct. 1692.
. Id. (citations omitted); see also Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (holding that the clearly-established inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition”).
. See Anderson, 483 U.S. at 639, 107 S.Ct. 3034.
. al-Kidd, 131 S.Ct. at 2083.
. Id. (emphasis added).
. See Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (“[T]he salient question that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of Hope was unconstitutional.”).
. McClendon v. City of Columbia, 305 F.3d 314, 331 (5th Cir.2002) (en banc) (discussing Wilson, 526 U.S. at 614-15, 119 S.Ct. 1692,
. Hope, 536 U.S. at 741, 122 S.Ct. 2508 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034) (emphasis added).
. Id. at 742, 122 S.Ct. 2508 (citing Gates v. Collier, 501 F.2d 1291 (5th Cir.1974)).
. See United States v. Lanier, 520 U.S. 259, 268-69, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034) (rejecting the Sixth Circuit’s stringent specificity requirement for "fair warning” purposes in a case involving a state-court judge who sexually assaulted several women in his chambers). The Supreme Court has also favorably cited an oft-quoted Seventh Circuit opinion reiterating the importance of providing for a remedy in the most obvious of cases:
The easiest cases don’t even arise. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances.
K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir.1990) (cited in Safford Unified Sch. Dist. No. 1 v. Redding,-U.S.-, 129 S.Ct. 2633, 2643, 174 L.Ed.2d 354 (2009)).
. See al-Kidd v. Ashcroft, 580 F.3d 949, 970 (9th Cir.2009), rev’d, -U.S.-, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Hope, 536 U.S. at 739, 122 S.Ct. 2508).
. Brosseau, 543 U.S. at 201, 125 S.Ct. 596 (emphasis added). A leading treatise on federal jurisdiction has noted an "obvious tension” between Hope, which "declar[ed] that there need not be a case on point to overcome qualified immunity,” and Brosseau, which found "qualified immunity based on the lack of a case on point.” Erwin Chemerinsky, Federal Jurisdiction § 8.6, at 555 (5th ed. 2007).
. 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
. E.g., Rebecca Aviel, Compulsory Education and Substantive Due Process: Asserting Student Rights to a Safe and Healthy School Facility, 10 Lewis & Clark L.Rev. 201, 229 (2006); Kristi L. Bowman, Public School Students’ Religious Speech and Viewpoint Discrimination, 110 W. Va. L.Rev. 187, 201 (2007) (citation omitted).
. Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 507 (5th Cir.2009). Indeed, this contraction of Tinker led Justice Thomas to lament that the Court has failed to adequately explain “when [Tinker] operates and when it does not”:
we continue to distance ourselves from Tinker, but we neither overrule it nor offer an explanation of when it operates and when it does not. I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t — a standard continuously developed through litigation against local schools and their administrators.
Morse v. Frederick, 551 U.S. 393, 418 [127 S.Ct. 2618, 168 L.Ed.2d 290] (2007) (Thomas, J., concurring); see also Erwin Chemerinsky, Teaching that Speech Matters: A Framework for Analyzing Speech Issues in Schools, U.C. Davis L. Rev. 825, 831 (2009) (“Tinker has never been expressly overruled, but it has been tremendously undermined.”).
. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986).
. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988).
. Morse v. Frederick, 551 U.S. 393, 422, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (Alito, J., concurring). We have identified Justice Ali-to’s concurrence as the controlling opinion in Morse. Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 768 (5th Cir.2007).
This Court also applies a different standard to student-speech restrictions that are content-neutral. See Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 442-43 (2001) (applying the O’Brien standard, which is "virtually the same” as the traditional time, place, and manner analysis).
. For instance, outside the school environment, the Court has recently invalidated a California state ban on the sale of violent video games to minors. See Brown v. Entm’t Merch. Ass’n, -U.S. -, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011). This is just one example of a recent spate of cases articulating robust First Amendment protections. See, e.g., Snyder v. Phelps,-U.S.-, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (shielding hateful speech at military funerals); United States v. Stevens,-U.S.-, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (protecting depictions of animal cruelty); Citizens United v. Fed. Election Comm’n, - U.S. -, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (holding that the government may not restrict political speech simply because the speaker is a corporation).
. Fraser, 478 U.S. at 682, 106 S.Ct. 3159 (citing New Jersey v. T.L.O., 469 U.S. 325, 340-42, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)).
. Compare, e.g., Morse, 551 U.S. at 401, 127 S.Ct. 2618 (upholding a school’s restriction on a student's “BONG HiTS 4 JESUS” poster at a school event and noting that a student "cannot stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school”), with Cohen v. California, 403 U.S. 15, 16, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (holding that defendant had a First Amendment right to wear a jacket reading "Fuck the Draft” in a municipal courthouse although there were "women and children present”).
. Morse, 551 U.S. at 394, 127 S.Ct. 2618 (quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733).
. See Morgan I, 589 F.3d at 745 & n. 15 (identifying various categories of student speech).
. The plaintiffs also argue that we need not resolve the difficult issue of which precedent to apply because they carefully pleaded that the speech in question was “non-curricular” and thus not within Hazelwood’s reach. But whether speech is "school-sponsored” or "curricular” under Hazelwood is a question of law for the Court, not a fact entitled to the presumption of truth in a plaintiff's pleading. See Hazelwood, 484 U.S. at 268, 108 S.Ct. 562 (treating "school-sponsored” and "curricular” as questions for the court and then answering those questions based on the specific facts before it); Campbell v. St. Tammany Parish Sch. Bd., 64 F.3d 184, 189-90 (5th Cir. 1995) (same); Peck v. Baldwinsville Cent., 426 F.3d 617 (same); Walz, 342 F.3d at 279 (same); Bannon, 387 F.3d 1208 (same); Fleming, 298 F.3d at 931 (same); see also Iqbal, 129 S.Ct. at 1949 (detailing a number of categories of statements in a plaintiff's complaint that are not entitled to the presumption of truth).
. Hazelwood, 484 U.S. at 270-71, 108 S.Ct. 562.
. Tinker, 393 U.S. at 509, 89 S.Ct. 733 (citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
. Id.
. Hazelwood, 484 U.S. at 271, 108 S.Ct. 562 (emphasis added).
. Id.
. Id.
. Id. at 273, 108 S.Ct. 562.
. Tinker, 393 U.S. at 508, 89 S.Ct. 733.
. Merriam-Webster's Dictionary, available at www.m-w.com.
. Fleming v. Jefferson Cnty. Sch. Dist., 298 F.3d 918, 925 (10th Cir.2002) ("Expressive activities that do not bear the imprimatur of the school could include a variety of activities conducted by outside groups that take place on school facilities after-school, such as club meetings.” (citing Good News Club v. Milford Cent. Sch., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001))).
. Id. (noting that imprimatur concerns may be heightened where students are a "captive audience” (citing DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 968 (9th Cir.1999))).
. Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 279 (3d Cir.2003) (holding that school holiday parties were curricular activities because teachers planned the parties and the parties were supervised and regulated by school); Bannon v. Sch. Dist. of Palm Beach Cnty., 387 F.3d 1208, 1214-15 (11th Cir.2004) (holding that murals made by students were curricular in part because faculty members supervised the project); Fleming, 298 F.3d at 930-31 (holding that tiles created by individual students as part of a school beautification project bore the school’s imprimatur because the school was "significantly involved in the creation, funding, supervision, and screening process of the tile project”); Peck v. Baldwins-ville Cent. Sch. Dist., 426 F.3d 617, 628-29 (2d Cir.2005) (concluding that a student’s poster was school-sponsored expression because the poster was prepared in response to a school assignment and the school set parameters for posters in advance).
. Bannon, 387 F.3d at 1214-15 (applying Hazelwood where project was designed to impart knowledge — specifically the creation and appreciation of artwork).
. E.g., id. (applying Hazelwood to a "school beautification project” for which students did not earn grades or credit, and which occurred on Saturdays and required a separate participation fee); Fleming, 298 F.3d at 921, 928 (applying Hazelwood to a project at Columbine High School in which students were given the opportunity to create artwork on tiles to be displayed in the school, even though the project was not for students alone and was open to the general community).
. Bannon, 387 F.3d at 1214-15.
. Walz, 342 F.3d at 277.
. Muller ex rel. Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1539 (7th Cir. 1996).
. Even counsel for one of the plaintiffs' amici curiae has recognized as much. See Jay Alan Sekulow et al., Proposed Guidelines for Student Religious Speech and Observance in Public Schools, 46 Mercer L.Rev. 1017, 1072 (1995) ("Tzn/ceritself dealt with the speech rights of high school and junior high school students. The proposed guidelines [from this article] extend the Tinker standard to elementary schools.”); see also Ann Hassenpflug, The Limits of Freedom of Speech for Students in Grades PK-8, 198 Educ. L. Rep. 383, 383 (2005) ("In Tinker[,] the Court .... did not address ... any type of elementary student speech.”); Jon Perrelle, Note: An Opportunity for Reform: Tennessee Secondary School Athletic Association v. Brentwood Academy and NCAA Recruiting, 74 Brook. L.Rev. 1213, 1231 n. 140 (2009) ("[N]o decisions of the Courts of Appeals apply Tm/cer-based speech rights to the elementary school setting ....").
. Tinker, 393 U.S. at 504, 89 S.Ct. 733.
. Both the Third and Seventh Circuits have held that, if elementary students enjoy Tinker-based speech rights, those rights are far more limited than the rights of older students. The Third Circuit has gone so far as to note that "at a certain point, a school child is so young that it might reasonably be presumed the First Amendment does not protect the kind of speech at issue here.” Walker-Serrano ex rel. Walker v. Leonard, 325 F.3d 412, 418 (3d Cir.2003).
Similarly, the Seventh Circuit has held that, to the extent elementary students enjoy First Amendment rights at school, those rights are tightly circumscribed in light of their young age. See, e.g., Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 738 (7th Cir. 1994), superseded by statute on an unrelated point as recognized in Lawrence v. Kenosha Cnty., 391
. Baxter, 26 F.3d at 738 (emphasis omitted); see also Zamecnik, 636 F.3d at 876 (”[T]he younger the children, the more latitude the school authorities have in limiting expression.”); Nuxoll, 523 F.3d at 673 (noting that when a school regulates the speech of children that are "very young ... the school has a pretty free hand” (citations omitted)).
. Hazelwood, 484 U.S. at 272, 108 S.Ct. 562.
. Muller, 98 F.3d at 1538; see also Zamecnik, 636 F.3d at 876 (”[T]he contribution that kids can make to the marketplace of ideas and opinions is modest .... ” (discussing Nuxoll, 523 F.3d at 676-80)).
. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (citing Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-43, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)); see also Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 350 (5th Cir.2001) (holding that the Court did not need to determine the nature of a forum for adult speech outside of the school day, be
. al-Kidd, 131 S.Ct. at 2084 (citations omitted).
. Rosenberger, 515 U.S. at 828, 115 S.Ct. 2510 (citing Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)).
. Morse, 551 U.S. at 394, 127 S.Ct. 2618 (reiterating that student-speech claims must be considered " 'in light of the special characteristics of the school environment’ ” (quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733)).
. See Good News Club, 533 U.S. at 113, 121 S.Ct. 2093 (invalidating school’s restriction on an outside religious group’s use of a school's multipurpose facility after school hours); Rosenberger, 515 U.S. at 830, 115 S.Ct. 2510 (holding that university could not withhold student activities funds from an extracurricular student group simply because of the religious nature of its speech); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 393, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (invalidating school district's restriction on a religious group’s use of school facilities during times they were not being used for school purposes); Bd. of Educ. of Westside Cmty. Sch. (Dist.66) v. Mergens, 496 U.S. 226, 250-51, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (same); Widmar v. Vincent, 454 U.S. 263, 273-75, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (holding that a university that "opened its facilities for use by student groups” could not then discriminate against a particular group because of its religious purpose).
. The plaintiffs have argued that the defendants waived the argument that the law was not clearly established in light of this circuit split. We reject this argument because the plaintiffs briefed cases arising from this Hazelwood-baseá circuit split at every phase of this proceeding: at the district court, before the panel, and now before the en banc Court. Even if they had not, the Supreme Court has held that "When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991).
. Chiras v. Miller, 432 F.3d 606, 615 (5th Cir.2005); see also 2 Rodney A. Smolla, Smolla 6 Nimmer on Freedom of Speech, § 7:14.50 (Westlaw current through March 2011) ("There is a division among courts as to whether the ... deferential First Amendment standard articulated in Hazelwood is nonetheless trumped and displaced by the First Amendment norm heavily disfavoring viewpoint discrimination.”). Compare, e.g., Fleming, 298 F.3d at 928 ("Hazelwood does not require educators’ restrictions on school-sponsored speech to be viewpoint neutral.”), and Ward v. Hickey, 996 F.2d 448, 454 (1st Cir.1993) ("[T]he Court in [Hazelwood] did not require that school regulation of school-sponsored speech to be viewpoint neutral.”), with Searcey v. Harris, 888 F.2d 1314, 1319 n. 7 (11th Cir.1989) (“[Tjhere is no indication that the [Hazelwood] Court intended to drastically rewrite First Amendment law to allow a
. 513 F.3d 570 (6th Cir.2008).
. Id. at 579 (citing Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987)).
. 342 F.3d 271 (3d Cir.2003).
. Id. at 280.
. Id. at 277.
. Peck v. Baldwinsville Cent., 426 F.3d at 620.
. Good News Club, 533 U.S. at 113, 121 S.Ct. 2093 (citing Lamb's Chapel, 508 U.S. at 394-95, 113 S.Ct. 2141).
. Peck v. Upshur Cnty. Bd. of Educ., 155 F.3d 274, 288 n. * (4th Cir.1998).
. Id. at 275-76.
. Id. at 288 n. * (emphasis added).
. Id.
. Walz, 342 F.3d at 277 (citing Edwards, 482 U.S. 578, 107 S.Ct. 2573).
. Id.
. 533 U.S. 98, 117-18, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001).
. Good News Club, 533 U.S. at 115, 121 S.Ct. 2093 (citing Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985)).
.Id.
. Id.
. Neither did the Supreme Court "reject the idea that elementary students are different” in Mergens. The plaintiffs and their amici have repeatedly quoted Justice O'Connor's statement, for the plurality, that "[t]he proposition that schools do not endorse everything they fail to censor is not complicated." Mergens, 496 U.S. at 250-51, 110 S.Ct. 2356 (plurality). However, in quoting this language out of context, they ignore that the plurality opinion in Mergens was plainly limited to high-school students. Indeed, the Supreme Court in Mergens held only "that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatoiy basis.” Id. at 250, 110 S.Ct. 2356.
. The plaintiffs highlight a Seventh Circuit case invalidating a restriction on a middle-school student’s distribution of written religious materials. See Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1297 (7th Cir.1993) (invalidating a district policy forbidding distribution of religious material "[a]t the elementary and junior high school”). However, even if this case established a right to distribute such materials in elementary schools, this is far from the "robust consensus of persuasive authority” needed to clearly establish the law.
. See Walz, 342 F.3d at 273 ("At this particular party, Daniel brought his gifts directly to class where he distributed [the religious] pencils to his classmates." (emphasis added)); id. (noting that at the second party, "Daniel
. We take no position on the substantive correctness of the Third Circuit’s holding in Walz, that it is a constitutionally legitimate goal to prevent "advocacy” in the elementary-school environment. We highlight Walz instead as a precedent on which Swanson was entitled to rely, for qualified-immunity purposes.
. Id. at 280.
. Id. (emphasis added) (citation omitted).
.Further, we think it fitting to withhold some judgment of Bomchill's conduct until a developed record reveals more about the circumstances. Principals like Bomchill often have to make on-the-spot constitutional determinations in the face of litigious parents already determined to sue. Amici educators remind us that parents across the nation have thusly sought to engineer "gotcha” moments for use as fodder for litigation and media campaigns. Only a more developed fact record will reveal if that was the case here.
. Peck, 155 F.3d at 275-76.
. See Pearson, 129 S.Ct. at 815-16 (describing step one of the qualified-immunity procedure as deciding "whether the facts that a plaintiff has alleged [under Rule 12(b)(6)] or shown [under Rule 50 or 56] make out a violation of a constitutional right”). Throughout this appeal, the defendants have vigorously contested the plaintiffs' version of the facts. The district court will likely confront these same issues again when it addresses the plaintiffs’ claims against PISD. We caution the district court that our ruling today does not preclude a different result on summary judgment or at trial, after the parties have had an opportunity to develop the record through discovery.
. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 817-18, 172 L.Ed.2d 565 (2009).
. Id. at 818.
. Id. at 819-820.
. -U.S.-, 131 S.Ct. 2020, 2032, 179 L.Ed.2d 1118 (2011) (emphasis added).
. Id.
. al-Kidd, 131 S.Ct. at 2080 (quoting Pearson, 555 U.S. at 236-37, 129 S.Ct. 808).
. Pearson, 129 S.Ct. at 819 (citing Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 69-70 (1st Cir.2002)).
. 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). The plaintiffs throughout this case argued that Barnette itself established the affirmative speech rights of public-school students, but the Supreme Court itself has not subsequently construed Barnette as such. See, e.g., Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 61, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ("Some of this Court's leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.” (citing Barnette, 319 U.S. at 642, 63 S.Ct. 1178); Johanns v. Livestock Marketing Ass'n, 544 U.S. 550, 557, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005) ("We first invalidated an outright compulsion of speech in West Virginia Bd. of Ed. v. Barnette.”)).
. Brown, 131 S.Ct. at 2741.
. Walker-Serrano, 325 F.3d at 416-17.
. J.D.B. v. North Carolina, - U.S. -, 131 S.Ct. 2394, 2407, 180 L.Ed.2d 310 (2011).
. Walker-Serrano, 325 F.3d at 417.
. 393 U.S. at 508, 89 S.Ct. 733.
.As the Seventh Circuit has recognized,
[i]n a public forum, the Christian can tell the Jew he is going to hell, or the Jew can tell the Christian he is not one of God's chosen, no matter how that may hurt. But it makes no sense to say that the overly zealous Christian or Jewish child in an elementary school can say the same thing to his classmate, no matter the impact. Racist and other hateful views can be expressed in a public forum. But an elementary school under its custodial responsibilities may restrict such speech that could crush a child's sense of self-worth.
Muller, 98 F.3d at 1539-40.
. 484 U.S. at 271, 108 S.Ct. 562.
. Walz, 342 F.3d at 277 (citing Edwards, 482 U.S. 578, 107 S.Ct. 2573).
. Camreta, 131 S.Ct. at 2032.
. These are the factors courts consider when determining whether to apply Hazel-wood. See supra nn. 56-60 and accompanying text. The Vershers attempt to plead away Hazelwood by alleging that Stephanie distributed her tickets only "during non-curriculum times,” but this conclusory allegation is not entitled to the presumption of truth. See supra n. 47.
. al-Kidd, 131 S.Ct. at 2080 (quoting Pearson, 555 U.S. at 236-37, 129 S.Ct. 808).
. It must be emphasized that Judge Benavides’s opinion thoroughly describes the case law creating uncertainty that supports the principals' immunity, but this is not an endorsement of any of those cases. In particular, I cannot understand the contention that viewpoint discrimination may be uniquely permissible in public schools against student religious speech, nor are expressed Establishment Clause concerns even plausible here. Citing Hazel-wood to justify the censorship of religious candy canes at winter break parties is plainly hostile not only to the students' religious beliefs but to the Judeo-Christian tradition that is the only reason we ever had winter break parties to begin with. I disagree with other courts that have expanded these theories without any basis.
Concurrence Opinion
specially concurring:
I concur in Judge Benavides’s opinion granting qualified immunity to Principals Bomchill and Swanson. I do not join Part V A-C of that opinion. Nor have I joined the opinions of Judge Elrod and others deciding that the complaint states a claim for the violation by Principals Bomchill and Swanson of the First Amendment rights of the students involved here. The latter question need not have been decided now, and I think the ultimate resolution of that question would have benefitted from further factual development. The opinions of Judge Elrod and others, together with various briefs, have characterized the speech involved here as private, non-disruptive, student-to-student speech, analogizing it to a spontaneous student expression of a religious belief. I am not entirely comfortable that is all that is involved here. The pleadings suggest to me considerable parent involvement in the events at issue, a possibility that is reinforced by the
. Webster defines “proselytize” as "to recruit members for an institution, team, or group [especially] by the offer of special inducements.” Webster's Third New International Dictionary 1821 (1993).
Concurrence Opinion
specially concurring in Parts I to IV and V.D, but not joining Part V.A to C or reaching the issue addressed therein:
I concur in Judge Benavides’ opinion, but I do not join Part V.A to C because I respectfully do not agree that we should reach the issue addressed therein, and, accordingly, I concur in the judgment only insofar as it grants defendant-appellants qualified immunity.
I also do not join fully in Part IV.A of Judge Benavides’ opinion because I disagree with one of its premises in discussing clearly established law. Specifically, I disagree with the blanket statement that “generalizations and abstract propositions are not capable of establishing the law.” Judge Benavides’ Op. 371-72. In Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Supreme Court “appealed] to require a relatively high degree of specificity before a rule can be called ‘clearly established.’ ” Schneyder v. Smith, 653 F.3d 313, 329, 2011 WL 3211504, at *11 (3d Cir. July 29, 2011) (citing Anderson, 483 U.S. at 640, 107 S.Ct. 3034). However, the Court was also “at pains to emphasize that ‘[t]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.’ ” Id. at 329, 2011 WL 3211504,
“The Court further expounded this principle in a line of cases beginning with United, States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Edüd 432 (1997).” Schneyder, 653 F.3d at 329, 2011 WL 3211504, at *11. In Lanier, the Supreme Court “held that the defendant was entitled to ‘fair warning’ that his conduct deprived his victim of a constitutional right ....” Hope v. Pelzer, 536 U.S. 730, 739-40, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). In so doing, the Lanier Court “expressly rejected the requirement that previous cases be ‘fundamentally similar’ ” in order to give fair warning. Hope, 536 U.S. at 741, 122 S.Ct. 2508. The Court explained: [G]eneral statements of the law are not inherently incapable of giving fair and clear warning, and ... a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though “the very action in question has [not] previously been held unlawful.”
Lanier, 520 U.S. at 271, 117 S.Ct. 1219 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034). Although Lanier dealt with another statute, 18 U.S.C. § 242,
In Hope v. Pelzer, the Supreme Court “granted certiorari to determine whether the Court of Appeals’ qualified immunity holding comport[ed] with [its] decision in [Lanier].” Hope, 536 U.S. at 733, 122 S.Ct. 2508. The court of appeals in Hope had “stated that ‘the federal law by which the government official’s conduct should be evaluated must be preexisting, obvious and mandatory,’ and established, not by ‘abstractions,’ but by cases that are ‘materially similar’ to the facts in the case in front of us.” Id. at 736, 122 S.Ct. 2508 (quoting Hope v. Pelzer, 240 F.3d 975, 981 (11th Cir.2001)) (internal quotation marks omitted). The Supreme Court applied the same reasoning as in Lanier to reject the court of appeals’ requirement that cases must be “materially similar” in order to clearly establish a constitutional right:
Although earlier cases involving “fundamentally similar” facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding. The same is true of cases with “materially similar” facts. Accordingly, pursuant to Lanier, the salient question that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of Hope was unconstitutional.
Id. Thus, Hope makes plain that the correct standard to apply in a clearly established inquiry is whether the state actor had fair and clear warning that his actions were unconstitutional.
I do not agree with Judge Benavides’ opinion’s characterization of this language as merely dicta. Judge Benavides reasons that the Supreme Court ultimately relied on prior circuit precedent to conclude that the defendants had violated the plaintiffs clearly established constitutional rights. Judge Benavides’ Op. 372. However, the Hope Court reversed the court of appeals
Moreover, in the years since Hope, the Supreme Court has reaffirmed this principle. For example, the Court recently stated:
To be established clearly ... there is no need that “the very action in question [have] previously been held unlawful.” The unconstitutionality of outrageous conduct obviously will be unconstitutional, this being the reason, as Judge Posner has said, that “[t]he easiest cases don’t even arise.” But even as to action less than an outrage, “officials can still be on notice that their conduct violates established law ... in novel factual circumstances.”
Safford Unified Sch. Dist. # 1 v. Redding, 557 U.S. -, 129 S.Ct. 2633, 2643, 174 L.Ed.2d 354 (2009) (fourth and fifth alterations in original) (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990); Hope, 536 U.S. at 741, 122 S.Ct. 2508); see also Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam) (“Graham [v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989),] and [Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)], following the lead of the Fourth Amendment’s text, are cast at a high level of generality. Of course, in an obvious case, these standards can ‘clearly establish’ the answer, even without a body of relevant ease law.” (citations omitted) (citing Hope, 536 U.S. at 738, 122 S.Ct. 2508)). The Supreme Court’s recent decisions in Camreta v. Greene, — U.S.-, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011), and Ashcroft v. al-Kidd, — U.S.-, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011), do not overrule Hope, Lanier, or any case in that line. In fact, the majority in neither alKidd nor Camreta mentions them, and Justice Kennedy’s concurrence in al-Kidd cites Lanier affirmatively as supporting the “fair and clear warning” rule. 131 S.Ct. at 2086-87 (Kennedy, J., concurring). Further, Justice Kennedy’s dissenting opinion in Camreta recognizes the continuing vitality of Hope: “Our cases make clear, moreover, that ‘officials can still be on notice that their conduct violates established law even in novel factual circumstances.’ [Hope, 536 U.S. at 741, 122 S.Ct. 2508]. That rule permits clearly established violations to be found when extreme though unheard-of actions violate the Constitution. See, e.g., [id].” 131 S.Ct. at 2044 (Kennedy, J., dissenting).
In sum, pursuant to the line of cases described above, I believe that certain official conduct may so obviously fall within the prohibition of a general or abstract rule of the Constitution that any reasonable official would have “fair warning” that his actions are unconstitutional, even absent a prior court decision to that effect. However, I agree with Judge Benavides that this case does not present a situation where the defendants had fair warning that their actions were unconstitutional,
. "Section 242 makes it a crime for a state official to act 'willfully' and under color of law to deprive a person of rights protected by the Constitution." Hope, 536 U.S. at 739, 122 S.Ct. 2508.
Concurrence Opinion
partially concurring:
I agree that Tinker and its progeny clearly establish that elementary-school students enjoy some degree of First Amendment rights at school. This includes a general, but not unrestricted, right to express personal, religious views and to be free from viewpoint discrimination. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The Supreme Court was sweeping in its pronouncement that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the sehoolhouse gate.” Id. at 506, 89 S.Ct. 733. Based on the nature of the restriction in Tinker, a school policy forbidding students to wear armbands to protest the Vietnam War, id. at 504, 89 S.Ct. 733, and the Court’s broad language, this declaration surely encompasses a general prohibition on viewpoint discrimination that extends to all students.
Context matters significantly, however, in the intersection of the First Amendment, elementary education, and qualified immunity. In Hazelwood, the Supreme Court reaffirmed that the First Amendment “must be ‘applied in light of the special characteristics of the school environment.’ ” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733). Particularly, the Court held that schools may exercise greater control over “activities [that] may fairly be characterized as part of the school curriculum,” in part because of a concern that “the views of the individual speaker [might be] erroneously attributed to the school.” Id. at 272, 108 S.Ct. 562. While the Hazelwood case dealt with a high-school newspaper, the Third Circuit has preseiently noted that when applying the Hazelwood test “[i]n the elementary school setting, age and context are key.” Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 275 (3d Cir.2003). The ability of high-school students to express opinions about political and social issues, and to distinguish between the speech of other students and the school, must be considered in contrast to the abilities of much younger students. Young students may easily confuse student advocacy in the classroom or during other school-organized activities for school-endorsed speech. See
Nonetheless, the incidents described in the complaint involving Principal Bomchill’s attempts to restrict Versher’s distribution of (1) religious materials on the school lawn after school and (2) play tickets outside of class to students who expressed interest do not reasonably fall into this gray area where students might confuse Versher’s speech for that of the school, see Hazelwood, 484 U.S. at 272, 108 S.Ct. 562, or where Versher’s actions might interfere with the school’s ability to preserve order or facilitate learning. See Tinker, 393 U.S. at 514, 89 S.Ct. 733. At this stage of the proceedings, I would therefore affirm the denial of qualified immunity on these two incidents.
The other two incidents — involving distribution of religious materials (1) at a “winter break party” inside the classroom and (2) at a half-birthday party facilitated by the school — are not so clear-cut. Given the risk of young students imputing religious speech to the school, and the similarities between the facts in the latter incident and Walz, Bomchill’s and Swanson’s actions were not objectively unreasonable in light of clearly-established law. I would therefore grant qualified immunity with respect to those incidents.
For the foregoing reasons, I join in Sections III.A, III.C, IV.B, and IV.C of Judge Elrod’s opinion.
. The district court may later find that qualified immunity is warranted on one or both of these incidents after further factual development in this case.
Dissenting Opinion
writing for the majority with respect to Sections III.A, III.C, and III.D, and dissenting in remaining part:
“The vigilant protection of constitutional freedoms is nowhere more vital than in the
This appeal may only involve two students and two principals in a suburban school district in Texas, but it concerns conduct that “strikes at the very heart of the First Amendment” — discrimination against student speech solely on the basis of religious viewpoint. See Morse v. Frederick, 551 U.S. 393, 423, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (Alito, J., concurring).
I.
On this interlocutory appeal of a motion to dismiss, we must accept as true the facts as pleaded in the complaint, view them in the light most favorable to the students, and draw all reasonable inferences in favor of the students. See Brown v. Nationsbank Corp., 188 F.3d 579, 585-86 (5th Cir.1999).
A.
This case involves two principals, Lynn Swanson and Jackie Bomchill, two students, Stephanie Versher and Jonathan Morgan, and four separate incidents involving the principals’ censorship of student speech.
At all relevant times, Stephanie was enrolled in the fifth grade at Rasor Elementary School, part of the Plano Independent School District (Plano ISD) in Texas. In January 2004, “while at school but during non-curriculum times and with no material and substantial disruption to the operations of the school,” Stephanie talked to her friends and classmates about a drama being put on at a local church. If a student expressed a desire to attend, Stephanie would give that student a free ticket. After she had given out several tickets, Principal Bomchill learned of her actions and instructed school officials to prevent Stephanie from giving out any more tickets and to confiscate any tickets that she had already given to her classmates. School officials collected and discarded those tickets. Bomchill notified Stephanie’s mother that the tickets were not allowed because they expressed a religious viewpoint and later told her that if Stephanie attempted to share the tickets again on school property, Stephanie would be “kicked out of school.” No other reason was given.
Incident Two
In the same month, on January 16, 2004, Stephanie wanted to share brownies and two pencils with her friends in the cafeteria during her half-birthday party. Plano ISD permits students to celebrate their birthdays with parties at school. Students with summer birthdays may celebrate their half-birthdays during the school year with their classmates while at school. Celebrants often distribute snacks and small gifts to their classmates. In the past, school officials have permitted students to share a Chinese bookmark with a printed message on it, a Lion King ring with words and symbols, a bracelet, and pencils with various words and symbols, including the commercial statement “Where’s Hippo?” The parties are celebrated during “non-curriculum times” at school — “primarily at the end of the lunch period or during a snack break between instructional time.” For her half-birthday party, Stephanie had brought brownies, along with two pencils, one inscribed with the word “moon” and another inscribed with the phrase “Jesus loves me this I know for the Bible tells me so.” Stephanie’s mother unsuccessfully attempted to meet with Principal Bomchill prior to the party to discuss the snacks and gifts, so on the day of the party, Stephanie’s mother took the pencils and brownies to the school’s office and requested to see Bomchill. As she entered the school’s office, Stephanie’s mother received a letter accusing her of distributing material to students on school property and threatening that “law enforcement officials” would be called to arrest her.
Bomchill also threatened that, if Stephanie shared any more materials that expressed a religious viewpoint while on school property, the school would call the police and Stephanie “would be in trouble.” Bomchill forbade Stephanie from giving her friends the “Jesus” pencils, but gave her permission to share the brownies and the “moon” pencils. According to Bomchill, such “religious” material (i.e., the tickets and “Jesus” pencils) could only be distributed “outside of the school building.” Stephanie’s mother removed the “Jesus” pencils from the tie wrapping the brownies and brought the brownies and “moon” pencils to Stephanie so that she could share
Incident Three
Later that day, after school hours, outside of the school on the sidewalk and lawn, Stephanie was talking to some of her friends. As she reached over to one of her best friends to share one of the “Jesus” pencils, Bomchill saw Stephanie and grabbed her shoulder. Bomchill confiscated the pencil and scolded Stephanie. Despite Bomchill’s earlier statement that Stephanie could share the pencils after school outside of the school building, she told Stephanie that she could not give out the pencil on school property at all because it expressed a religious viewpoint. Bomchill then told Stephanie’s mother that if Stephanie tried to give out these pencils again, she would be “kicked out of school.” Incident Four
The remaining incident involved Principal Swanson of Thomas Elementary School — also in Plano ISD — and one student, third-grader Jonathan Morgan. Each elementary school classroom in Plano ISD hosts a “winter break” party at which students, if they so choose, may exchange “goodie bags” containing gifts. For his upcoming December 2003 “winter break” party, Jonathan wanted to give his classmates goodie bags containing candy-cane shaped pens along with a laminated card entitled the “Legend of the Candy Cane” that explained the Christian origin of candy canes. Each bag would be individually addressed to a specific classmate with a tag specifying that the gift was from Jonathan.
Jonathan’s parents, Doug and Robin Morgan, were aware that in the past, Plano ISD, Swanson, and other school officials at Thomas Elementary School had prevented students from including “religious” materials in their goodie bags for the “winter break” parties. For example, Michaela Wade, another student at Thomas, wanted to include a pencil inscribed with the phrase “Jesus is the Reason for the Season” in her goodie bags at a 2001 “winter break” party. School officials would not allow her to include the pencils in her goodie bags because of their religious message, but did permit her classmates to pass out goodie bags containing gifts inscribed with secular phrases and symbols,
Given this history, Doug and Robin Morgan decided to meet with Swanson several weeks before the “winter break” party, in order to determine whether she would allow Jonathan to share his candy canes in his goodie bag. According to the corn-
students and parents are being interrogated by school officials at the “winter break” parties as to whether or not the contents of their gift or “goodie” bags— which they have brought to school to distribute to their classmates during the “winter break” party — -contain any religious viewpoint, religious references or religious message and if the students or their parents acknowledged that the gift bags do contain religious messages or religious viewpoint materials, the bags are then confiscated by school officials and are banned from the classroom and prohibited from being distributed by the students while they are on school property.
The Morgans also complained to Swanson that students and parents were not being allowed to bring red and green materials to the “winter break” party, and that students were not allowed to write “Merry Christmas” on greeting cards to U.S. soldiers fighting abroad and to retirement homes. Swanson said she would investigate these claims. Swanson also confirmed that in the past, school officials had confiscated items deemed “religious” but had permitted “secular” items and school officials would continue to do so in the future. When asked about Jonathan’s intended gift, Swanson indicated that he could share the candy canes with his classmates only if he removed the laminated cards containing the religious message. Doug Morgan also asked Swanson if he could share the Legend of the Candy Cane cards with other interested parents present at the party. Swanson refused his request.
On the day of the party, Jonathan and his father unsuccessfully attempted to meet with Swanson and then proceeded to Jonathan’s classroom. Jonathan’s teacher met them at the door and prevented Jonathan from bringing his goodie bags into the classroom to exchange with his classmates because they contained “religious” messages. Once Swanson arrived at Jonathan’s classroom and was apprised of the situation, she immediately informed the Morgans that Jonathan could place his goodie bags in the school library or he could distribute his goodie bags on a public sidewalk off of school property. Swanson later announced to the entire school that students were not allowed to bring any outside materials into the classrooms. Despite having just observed other outside materials in Jonathan’s classroom, however, she never required the other students to remove their gift bags from the classroom and place them in the library. All of Jonathan’s other classmates were allowed to exchange gift bags inside the classroom. Swanson only prohibited students from exchanging materials that contained a “religious” viewpoint. Swanson allowed students to exchange other materials, and, other than noting the “religious” nature of the materials, Swanson offered no justification for her censorship of Jonathan’s speech.
B.
This case is before us on an interlocutory appeal of a denial of a motion to dismiss. The students filed a complaint alleging violations of the First and Fourteenth Amendments, as well as of Article 1, § 8 of the Texas Constitution.
After the magistrate judge and the district court dismissed their argument that “First Amendment free speech protections do not apply to elementary schools,” the principals appealed to this court. On appeal, the principals urged the panel to reverse the district court on qualified immunity because, as stated in their issue presented, “[t]he First Amendment is not implicated by restrictions on student-to-student distribution of non-curricular materials by elementary school students to their classmates.” In addition, the principals asserted that they are entitled to qualified immunity because neither “this [c]ourt nor the Supreme Court has ever upheld a First Amendment free speech claim by an elementary school student.” A unanimous panel of this court, like the district court and the magistrate judge, rejected their argument, holding that “it has been clear for over half a century that the First Amendment protects elementary school students from religious-viewpoint discrimination.”
The principals petitioned for rehearing en banc, arguing that it was not clearly established that elementary school students had a First Amendment right to be free from viewpoint discrimination, and that the prohibition on viewpoint discrimination did not apply to religious speech. This court granted rehearing en banc.
II.
This court has jurisdiction to review the district court’s denial of the principals’ motion to dismiss based on qualified immunity under 28 U.S.C. § 1291 and the collateral-order doctrine, but only to the extent that the appeal turns on questions of law. Mitchell v. Forsyth, 472 U.S. 511, 528-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We review a district court’s determination of a motion to dismiss de novo. In re S. Scrap Material Co., 541 F.3d 584, 587 (5th Cir. 2008). For a complaint to avoid being dismissed for failure to state a claim, the “[fjactual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)” and the non-moving party must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Here, the principals’ motion to dismiss before the district court was based on a claim of qualified immunity, which “is an immunity from suit rather than a mere defense to liability.” Mitchell, 472 U.S. at 526, 105 S.Ct. 2806. Qualified immunity
At this early pleading stage, our factual universe is bounded by the four corners of the complaint. See Brown, 188 F.3d at 585-86. In other words, we must determine whether the principals are entitled to qualified immunity based on the facts alleged in the complaint, which we must accept as true, drawing all reasonable inferences in favor of the students. Id. We lack jurisdiction to resolve disputed factual issues or consider whether such disputes might entitle the principals to qualified immunity. See Roe v. Tex. Dep’t of Protective and Regulatory Servs., 299 F.3d 395, 400 (5th Cir.2002).
III.
The first prong of qualified immunity asks whether the principals’ alleged conduct violated a statutory or constitutional right. See al-Kidd, 131 S.Ct. at 2080. Under Pearson v. Callahan, courts have discretion to decide which of the two prongs of qualified immunity to tackle first. 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Although courts should “think hard” before exercising this discretion, “it remains true that following the two-step sequence — defining constitutional rights and only then conferring immunity — is sometimes beneficial to clarify the legal standards governing public officials.” Camreta v. Greene, — U.S.-, 131 S.Ct. 2020, 2032, 179 L.Ed.2d 1118 (2011).
A.
The First Amendment protects an individual’s right to speak freely, a right whose value lies in the fact that it defends equally all viewpoints, even disfavored ones. Thus, viewpoint discrimination “strikes at the very heart of the First Amendment.” Morse, 551 U.S. at 423, 127 S.Ct. 2618 (Alito, J., concurring). “When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.” Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510. This prohibition is so well-established as to be “axiomatic.” Id. at 828, 115 S.Ct. 2510. “If there is any fixed star in our constitu
The right to be free from viewpoint discrimination is no less important in our public schools. Our public school officials “influence the attitudes of students toward government, the political process, and a citizen’s social responsibilities.” Ambach v. Norwick, 441 U.S. 68, 79, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979). Our schools are tasked with “inculcating] the habits and manners of civility.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). The habits and manners of a free people include tolerance and consideration of a range of political and religious views.
For these reasons, the Supreme Court held over forty years ago that the First Amendment prohibits viewpoint discrimination against all students in public schools, absent material and substantial disruption. See Tinker v. Des Monies Indep. Cmty. Sch. Dist., 393 U.S. 503, 509, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id. at 506, 89 S.Ct. 733. In Tinker, the principals of the Des Moines schools became aware of a plan by students to wear armbands protesting the Vietnam War. Id. at 504, 89 S.Ct. 733. They adopted a policy that any student wearing such an armband would be asked to remove it or face suspension. Id. Seven students decided to defy the policy, including eight-year-old Paul Tinker, eleven-year-old Hope Tinker, and thirteen-year-old Mary Beth Tinker. Id. at 516, 89 S.Ct. 733 (Black, J., dissenting).
The Supreme Court upheld the rights of those students against the school’s efforts to prohibit the students from speaking their minds, holding that “[i]n the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.” Id. at 511, 89 S.Ct. 733. The Court even characterized this holding as “obvious”:
If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school.
Id. at 513, 89 S.Ct. 733.
Thus, under Tinker, school officials may not restrict student speech on school property solely on the basis of viewpoint, unless there is a showing of material and substantial disruption. See id. This holding was not revolutionary, even in 1969.
Since Tinker and Barnette, the Supreme Court has consistently reinforced the notion that First Amendment rights are of paramount importance in school facilities. See, e.g., Good News Club v. Milford Cent. Sch, 533 U.S. 98, 112, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (holding that a school violated the First Amendment when it prohibited a private Christian organization for children aged six to twelve from holding meetings at the school for the purpose of singing Christian songs, hearing Bible lessons, and memorizing scripture); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 393-94, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (holding that the prohibition of Christian perspective speech in a school facility constituted unconstitutional viewpoint discrimination); Widmar v. Vincent, 454 U.S. 263, 265, 267, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (holding that a public university could not “close its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion”).
In its most recent school speech case, Morse v. Frederick, the Supreme Court reaffirmed Tinkers maxim that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Morse, 551 U.S. at 422, 127 S.Ct. 2618 (Alito, J., concurring).. Justice Alito’s controlling opinion observed that giving “public school authorities a license to suppress speech ... based on disagreement with the viewpoint' expressed” would “strike[ ] at the very heart of the First Amendment.” Id. at 423, 127 S.Ct. 2618. Thus, “[w]hen the government targets .... particular views taken by speakers on a subject, the violation of the First Amendment is ... blatant.” Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510; see also id. (“Viewpoint discrimination is ... an egregious form of content discrimination.”).
Like the Supreme Court, this court has never limited the First Amendment rights of students due to age. Most recently, in a related case, this court applied the O’Brien “time, place, and manner” test to Plano ISD’s policy regulating student-to-student distribution of non-curricular materials in elementary schools — a test that would have been inappropriate had the court concluded that elementary school students are not protected by the First Amendment. See Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 745 (5th Cir.2009); see also Pounds v. Katy Indep. Sch. Dist., 730 F.Supp.2d 636, 639 (S.D.Tex.2010) (rejecting a school’s effort to remove a religious Christmas card option from the choices available to elementary school students creating cards for their friends); cf. A.A. v. Needville Indep. Sch. Dist., 611 F.3d 248, 272-73 (5th Cir.2010) (applying the Texas Religious Freedom Restoration Act to the claims of a kindergarten student to vindicate the child’s rights to wear his hair long in school). In addition to the Supreme Court and this court, numerous other circuits have also rejected claims that the First Amendment does not apply to ele
B.
The principals have raised a number of new arguments before the en banc court; all of them are waived. Our well-established rule is that “arguments not raised before the district court are waived and will not be considered on appeal.” Celanese Corp. v. Martin K. Eby Const. Co., 620 F.3d 529, 531 (5th Cir.2010); see also French v. Allstate Indem. Co., 637 F.3d 571, 582-83 (5th Cir.2011). That principle is especially relevant when a case reaches en banc consideration. See Franks Inv. Co. LLC v. Union Pacific R. Co., 593 F.3d 404 (5th Cir.2010) (en banc) (observing that “[t]oday is too late” to consider a theory raised for the first time en banc) (citing United States v. Brace, 145 F.3d 247, 250 (5th Cir.1998)) (en banc); see also United States v. Lucas, 499 F.3d 769, 792 (8th Cir.2007) (Beam, J., dissenting) (“[C]onsideration of these new issues for the first time by the en banc court will have the effect of making the district court trial and the three-judge panel’s consideration of the issues asserted in the first appeal merely a ‘tryout on the road,’ leaving open the option of presenting a newly created script when the en banc court becomes the intended audience.”).
The sole question properly before this court is the only one the principals raised before the panel: Is it clearly established that elementary school students have First Amendment rights? Throughout this litigation, the principals have insisted that the answer to that question is “no.” Thus, according to the principals, because “First Amendment free speech protections do not apply to elementary schools,” their decision to discriminate solely on the basis of religious viewpoint was permissible.
This broad dismissal of the elementary school students’ free speech rights — that,
Whatever the reason, we should hold the principals to the position they took before every court that has decided this case to date. Limited to the question properly before this court, the answer is clear: elementary school students do have First Amendment rights under clearly established law. See supra Section III.A. The magistrate judge, the district court, and a unanimous panel of this court, at this 12(b)6) stage, agreed. Every member of this court also agrees, and no circuit has
C.
Nevertheless, because a majority of this court would not find waiver, we must consider the principals’ other en banc arguments. The principals contend that one of the limited exceptions that the Supreme Court has carved out to students’ First Amendment speech rights arguably applies here, and therefore their decision to restrict speech was permissible. The Court has delineated five narrow exceptions for when school officials may restrict specific student speech:
School regulation of student speech can be justified on five ... grounds. If the speech is disruptive (Tinker), lewd (Fraser), school-sponsored (Hazelwood), or promoting drug use (Morse), schools may in some instances restrict specific student speech. Student speech can also be regulated so long as the regulation is viewpoint- and content-neutral {Canady).
Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 509 (5th Cir.2009).
However, of these five grounds, the Court has only expressly held that one permits school officials to engage in viewpoint discrimination — where the student speech is substantially and materially disruptive. See Tinker, 393 U.S. at 513, 89 S.Ct. 733.
Hazelwood School District v. Kuhlmeier sets out the parameters for what constitutes school-sponsored speech. See 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). In Hazelwood, the school principal censored two articles in the school newspaper: one concerning students’ experiences with pregnancy, and the other regarding the impact of divorce on students at the school. Id. at 263, 108 S.Ct. 562. The school newspaper was funded by the school, and the school’s journalism teacher “selected the editors of the newspaper, scheduled publication dates ... edited [the] stories, selected and edited the letters to the editor, and dealt with the printing company,” and had “final authority with respect to almost every aspect of the production and publication of [the paper], including its content.” Id. at 268, 108 S.Ct. 562 (quoting Kuhlmeier v. Hazel-wood Sch. Dist., 607 F.Supp. 1450, 1453 (E.D.Mo.1985)). School policy expressly provided that the publication was “developed within the adopted curriculum and its educational implications in regular classroom activities.” Id. (internal quotation marks omitted).
The Supreme Court observed that the question at issue in Hazelwood was not about an “educators’ ability to silence a student’s personal expression that happens to occur on school premises,” expression which is protected under Tinker, but about “whether the First Amendment requires a school affirmatively to promote particular student speech.” Id. at 270-71, 108 S.Ct. 562. The Court held that educators may exercise greater control over “these activities [that] may fairly be characterized as part of the curriculum,” which are “supervised by faculty members,” and designed to impart particular knowledge or skills so “that the views of the individual speaker may not be erroneously attributed to the school,” such as in a school newspaper or a school play. Id. at 271, 108 S.Ct. 562. The Court set out this exception to the First Amendment’s protection of student speech: “[W]e hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns” — activities such as a “school-sponsored publication” or a “theatrical production.” Id. at 273, 108 S.Ct. 562.
Like all exceptions to the First Amendment’s protections, the Hazelwood exception should be construed narrowly.
In short, whatever latitude school officials may have with respect to school-sponsored speech under Hazelwood, or with government-endorsed speech under the Establishment Clause — that is, speech that could be erroneously attributed to the school — outside of that narrow context, viewpoint discrimination against private, student-to-student, non-disruptive speech is forbidden by the First Amendment.
D.
We now consider the allegations in the complaint under this framework. Under Hazelwood and Morse, the four incidents at issue in this case, based on the facts alleged in the complaint, do not involve “school-sponsored” speech. Accordingly, the principals were not permitted to discriminate on the basis of viewpoint; yet, in each incident the principals allegedly censored speech solely because it expressed a religious message.
Of the remaining three incidents, two of them also involved Stephanie — one involving sharing pencils at lunch, and one involving talking to her friends about a local church play and handing out tickets at school, but at non-curricular times. The facts alleged do not indicate that Stephanie’s personal expression could be erroneously attributed to the school by Stephanie’s friends. In addition, the only reason provided by school officials for restricting the speech at issue is that students may not express a religious viewpoint on school property. For example, Bomchill allowed Stephanie to share a “moon” pencil at lunch break but not a “Jesus” pencil. Moreover, in the past, at half-birthday parties, school officials have permitted pencils with snowmen and snowflakes, commercial speech, such as a Lion King ring with words and pencils with the statement “Where’s Hippo?,” but here they discriminated against Stephanie’s “Jesus” pencil.
As for the incident involving a “winter break” party, school officials prevented Jonathan Morgan from giving some of his friends candy-cane shaped pens with a card explaining the Christian origin of candy canes. Jonathan’s sharing of candy-cane shaped pens could not be erroneously attributed to the school by his friends and classmates. These were his gifts. They were individually marked with his name and the recipient’s name. In addition, Jonathan Morgan would have been allowed to share his candy-cane pen in his goodie bag only if he removed the attached card containing a religious message. The only reason Swanson gave Jonathan for restricting his speech is that students may not express a religious viewpoint on school property.
None of the speech at issue could be fairly characterized as “in essence the school’s own speech” or “government speech endorsing religion.” Therefore,
For the same reasons, the students’ speech could not have presented Establishment Clause concerns.
In Santa Fe/this court held that prayers over the public address system at football games implicated the Establishment Clause, where the school district held an election to determine which student would deliver the prayer, “maintained complete control over' the programs and facilities during the reading of the prayers, including the ability to mute the microphone or remove the speaker,” and screened the text of the speech for “content prior to the ceremony.” Id. None of the speech at issue here was completely controlled by the school, or delivered in such a way as to “bear the imprimatur of the school” such that one would reasonably perceive the student speech as the government’s conveying a “message that religion or religious belief is favored or preferred.” See Cnty. of Allegheny v. ACLU, 492 U.S. 573, 593, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (quoting Wallace v. Jaffree, 472 U.S. 38, 70, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O’Connor, J., concurring)). Moreover, this is not a case where a government employee is selecting the religious message, see Engel v. Vitale, 370 U.S. 421, 422-23, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), delivering the religious message, see Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 207-08, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), endorsing the religious message, Wallace v. Jaffree, 472 U.S. 38, 56-59, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), or giving an otherwise private speaker preferential access to a forum, see Stone v. Graham, 449 U.S. 39, 42, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam). In short, this is not a case about the government’s endorsing religion. Accordingly, there is no Establishment Clause concern at issue in this case.
IV.
Because we have concluded that the principals’ alleged conduct violated the students’ First Amendment rights, we must proceed to the second prong of qualified immunity, which asks whether those rights were clearly established at the time of the incidents. See al-Kidd, 131 S.Ct. at 2080.
A.
“A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ ” that every “reasonable official would have understood that what he is doing violates that right.” Id. at 2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). A case directly on point is not required. See id.; see also Safford Unified Sch. Dist. No. 1 v. Redding, — U.S. -, 129 S.Ct. 2633, 2643, 174 L.Ed.2d 354 (2009) (“To be established clearly, however, there is no need that the ‘very action in question [have] previously been held unlawful.’ ”) (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). Rather, “[t]he central concept is that of ‘fair warning’: The law can be clearly established despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.” Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir.2004) (en banc) (quoting Hope v. Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). In determining whether the principals had “fair warning,” we first look to the Supreme Court and our circuit’s precedent. See Pearson, 555 U.S. at 244, 129 S.Ct. 808. We need only consider other
As discussed in Part III, it is well-settled law that elementary school students have First Amendment rights, private religious speech is fully protected, and viewpoint discrimination is prohibited in any forum. The Supreme Court’s decision in Tinker clearly established that viewpoint discrimination against non-disrup.tive student speech on school property violates the First Amendment rights of students. See Tinker, 393 U.S. at 513, 89 S.Ct. 733; see also Barnette, 319 U.S. at 642, 63 S.Ct. 1178. Our own circuit has already told the same Plano ISD that “viewpoint discrimination is a clearly established violation of the First Amendment in any forum.” Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 350 (5th Cir.2001) (Chiu I); Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273, 280 (5th Cir.2003) (Chiu II). In short, the idea that students have the right to be free from viewpoint discrimination at school is not subject to reasonable debate, and has not been for more than four decades. A “ ‘reasonably competent public official should know the law governing his conduct.’ ” Kinney, 367 F.3d at 349 (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Thus, the principals had fair, unmistakable warning that private, non-disruptive student speech is protected from viewpoint discrimination, and that any attempts to censor student speech should be undertaken only on the firmest of grounds.
Even if-the Supreme Court’s unbroken line of decisions were somehow not enough to give school districts fair warning that the First Amendment prohibits viewpoint discrimination against non-disruptive, private student speech, moreover, the Department of Education (DOE) has made clear to schools that viewpoint discrimination against religious speech in schools is prohibited. Cf. Hope v. Pelzer, 536 U.S. 730, 741-42, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (noting that Alabama Department of Corrections regulations and a DOJ report were capable of providing fair warning). As DOE guidelines explained as early as 1995, settled law protected students’ “right to distribute religious literature to their schoolmates, subject to those reasonable time, place, and manner or other constitutionally acceptable restrictions imposed on the distribution of all non-school literature.”
In sum, the Supreme Court, the Fifth Circuit, and the United States government all provided fair warning to the principals that elementary school students have a right to be free from viewpoint discrimination. That school officials nonetheless discriminated based on viewpoint under the facts alleged is not a failure of our precedent or that of the Supreme Court, but rather of the officials themselves.
As a last ditch effort, in the face of clearly established law, the principals fall back on the argument that religious speech in the schools is a very confusing area and that courts’ interpretations of Hazelwood have varied widely. That is, relying on cases outside our circuit (which they characterize as broadening the scope of Hazel-wood), the principals thought that the speech at issue in the four incidents was arguably school-sponsored. The principals argue that, because the question of whether the First Amendment prohibits viewpoint discrimination in the context of school-sponsored speech remains open, their alleged conduct did not violate clearly established law.
The principals contend that because some of these cases involved “Jesus” pencils, candy-canes, holiday parties, and religious speech, they were confused. For example, Curry v. Hensiner, 513 F.3d 570 (6th Cir.2008) involved candy-cane shaped ornaments, Walz v. Egg Harbor Twp. Board of Education, 342 F.3d 271 (3d Cir. 2003) involved candy canes, “Jesus” pencils, and holiday parties, Bannon v. School District of Palm Beach County, 387 F.3d 1208, 1214 (11th Cir.2004), Fleming v. Jefferson Cnty. Sch. Dist., 298 F.3d 918, 930-31 (10th Cir.2002), and Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 628-29 (2d Cir.2005) all involved religious speech.
Curry, a summary judgment decision from the Sixth Circuit, involved Christmas tree ornaments shaped like candy canes. See 513 F.3d at 574.
Walz, a summary-judgment case out of the Third Circuit, involved pencils with a religious message at a Parent-Teacher Organization (PTO) party. In Walz, the school district of Egg Harbor Township held seasonal, in-class parties several times a year, which were organized by the teachers and parents. 342 F.3d at 273. Just prior to Easter, the school held a party in a kindergarten class where the children’s parents were encouraged to donate gifts to the PTO. Id. The gifts were not distributed by students, but through the PTO. Id. The PTO collected all the gifts and distributed them to the students at a school-planned, highly structured, highly supervised, and regulated holiday party. Id.
Moreover, the school did not permit the distribution of “items with political, commercial, or religious references” in “class during school hours,” such as a pencil that stated “Home Depot” or “Support the [New Jersey Education Association].” Id. at 273. The school officials in Walz were concerned that the PTO’s distribution of gifts would be perceived as the school’s endorsing a particular message. Dr. Kelpsh, the superintendent of the Board of Education (BOE), stated that the intent behind the limited gift distribution policy “was to ensure that no confusion about the origin of any distributed gifts with corporate, political, or religious messages, and also that the BOE did not want anyone to mistakenly believe that the school was endorsing any particular message.” Walz, 187 F.Supp.2d at 235-36 (citing Kelpsh Dep., Tr. 74-77; Walz Dep., Tr. 60:5-17.). Thus, in Wafe, students were not permitted to distribute any gifts with any particular message or viewpoint. The conduct in Walz was viewpoint neutral. Walz held that school officials did not run afoul of student constitutional rights when they imposed subject-matter — not viewpoint-based — restrictions on student speech in the context of a “clearly defined,” “organized,” and “pedagogically-based” classroom activity. See Walz, 342 F.3d at 277-80 (citing Hazelwood, 484 U.S. at 273, 108 S.Ct. 562); see also Canady, 240 F.3d at 442-43.
At the party, kindergartner Daniel Walz “skirted the structure of this organized activity by bringing gifts that promoted a specific religious message,” specifically, pencils that said “Jesus [Loves] The Little Children.” Id. at 279. Daniel gave them out himself rather than going through the PTO system. Daniel’s teacher confiscated the pencils and the superintendent determined that the pencils could not be distributed because the children and parents “might perceive the message as being endorsed by the school.” Id. The Third Circuit agreed, holding that the school officials were permitted to restrict the speech at issue because this was not a situation where one student “turned to his classmates during snack time and stated, ‘Jesus loves the little children,’ ” a situation where the student speaks as an individual. Id. Rather, this was a case where a student “controverted] the rules of a structured classroom activity with the intention of promoting an unsolicited message.” Id. at 280.
The Third Circuit in Walz based its decision on extensive summary judgment
Our sister circuits’ decisions in Bannon, Fleming, and Peck all upheld some restrictions on religious speech in the school-sponsored context, either at summary judgment or after a full trial on the merits. For example, in Bannon, the court held that school murals painted by students appearing in “prominent locations in the school,” including next to the school’s main office, and in a main hallway, were considered to be school-sponsored because they were “allowed to become a part of the school itself, which in this case, [they] did.” See Bannon, 387 F.3d at 1214; see also Fleming, 298 F.3d at 930-31 (same with respect to school tiles). Likewise, in Peck, the court found the speech to be school-sponsored where kindergarten students created posters as an assignment for class, the school had guidelines about what the posters were supposed to be, and the posters were exhibited prominently at a school assembly, not unlike the school-regulated, edited, and featured school newspaper in Hazelwood,
While these cases involved religious speech, just as our case does, they have no legal effect on the outcome of this case. Under McClendon, we need not consider any of them because the contours of the Hazelwood exception were clearly established by the Supreme Court sixteen years ago in Hazelwood itself. 305 F.3d at 329. Under Hazelwood’s well-established rule, none of the speech at issue here is even arguably school-sponsored. Even assuming we should consider these cases, none of them change the fact that the student speech alleged here was" quintessentially private speech.
B.
Principal Bomchill had fair warning that preventing Stephanie from sharing a pencil with one of her friends after school hours, outside of school on the sidewalk and lawn solely on the basis of religious viewpoint is prohibited by the First Amendment. See Tinker, 393 U.S. at 513, 89 S.Ct. 733. A reasonable official in Bomchill’s position would not have been confused about the nature of the speech at issue here: neither is it school-sponsored nor does it implicate the Establishment Clause. This was a situation where a single student was sharing a pencil with another student; the school was simply not involved. See Hazelwood, 484 U.S. at 270-71, 108 S.Ct. 562 (The First Amendment protects “a student’s personal expression that happens to occur on school premises”). None of the Hazelwood factors apply here: given that the speech took place outside of the school building after school hours, the speech was not controlled by the school, part of the school curriculum, highly supervised by faculty members, or reasonably related to legitimate pedagogical concerns. Most importantly, unlike the school murals in Bannon, which had become “part of the school itself,” or the school newspaper in Hazelwood, there was no reasonable concern that Stephanie’s speech “might be erroneously attributed to the school.” See id. at 288, 108 S.Ct. 562. Therefore, based on the facts alleged, I would affirm the motion to dismiss denying qualified immunity to Bomchill as to this incident because a reasonable official would have known that restricting Stephanie’s private, non-disruptive, non-curricular, student-to-student speech after school, outside of school on the sidewalk, is not permitted under the First Amendment.
C.
Similarly, Bomchill had fair warning that preventing Stephanie from sharing tickets with friends to a drama at a local church and directing Stephanie’s teacher to demand the return of tickets already given out to other students, “while at school but during non-curriculum times” is not permitted under the First Amendment. See Tinker, 393 U.S. at 506, 89 S.Ct. 733; Barnette, 319 U.S. at 637, 63 S.Ct. 1178; Burnside, 363 F.2d at 749. Although we do not know where exactly Stephanie’s actions took place, or how many tickets she shared, the complaint alleges that the action did not take place during a curricular time, and at this stage, we accept factual allegations in the complaint as true, drawing all inferences in favor of Stephanie, the non-movant. See Brown, 188 F.3d at 586.
As with the “Jesus” pencils, a reasonable official would not have been confused about the speech at issue in this case. No reasonable official would think that Stephanie’s conversation with her friends and decision to share free tickets to a drama put on by a local church were school-sponsored speech. The school was not required to “affirmatively ... promote” the drama; Stephanie was sharing the tickets as an individual, on her own time at school. This was not in “essence, the school’s own speech”: Stephanie’s conver
D.
Finally, Bomchill had fair warning that preventing Stephanie from sharing a “Jesus” pencil with her friends at her half-birthday party in the cafeteria during lunch, while allowing a “moon” pencil to be shared, was impermissible viewpoint discrimination under the First Amendment. See Rosenberger, 515 U.S. at 828-29, 115 S.Ct. 2510 (restrictions on speech violate the First Amendment where the “specific motivating ideology or the opinion of perspective of the speaker is the rationale for the restriction”). As with the prior two incidents, Bomchill’s contention that this egregious viewpoint discrimination was permissible because she was confused about whether the speech was school-sponsored speech is not plausible. According to the complaint, Stephanie’s half-birthday party was not expressly part of the curriculum, her decision to share a pencil with a Mend was not a graded assignment. See Curry, 513 F.3d at 574. We do not know whether the lunch-time party was highly-regulated, or highly-supervised, but the complaint does not allege as such, and at this stage, we must accept all factual allegations as true, drawing all inferences in favor of Stephanie, the non-movant. See Brown, 188 F.3d at 586. Most importantly, there was no reasonable concern that Stephanie’s speech would be considered to be the school speaking. See Hazelwood, 484 U.S. at 273, 108 S.Ct. 562. Unlike the religious school tiles that the students painted in Fleming, which became a permanent fixture of the school itself, here, Stephanie, as an individual, would have directly handed a pencil to a friend. Therefore, based on the facts alleged, I would affirm the denial of qualified immunity to Bomchill as to this incident because a reasonable official would have known that restricting Stephanie’s private, non-disruptive, non-curricular, student-to-student speech in the cafeteria during lunch break was not permitted under the First Amendment.
E. .
We now turn to Principal Swanson. Swanson had fair warning that preventing Jonathan from sharing individually-addressed goodie bags that contained candy-cane shaped pens with a “Legend of the Candy Cane” story, constituted impermissible viewpoint discrimination. See Tinker, 393 U.S. at 506, 89 S.Ct. 733; Barnette, 319 U.S. at 637, 63 S.Ct. 1178; Burnside, 363 F.2d at 749. No reasonable official would think that Jonathan’s sharing of candy-cane shaped pens with a religious message with his Mends at the party was school-sponsored speech. This was private speech from one student to another, with each goodie bag marked with Jonathan’s name and with the name of the friend he was sharing the bag with. His Mend would understand that the gift was from Jonathan, not from the school. This
Walz also involved seasonal parties and candy canes, but the similarities end there. In contrast to Walz, here we do not have extensive summary judgment evidence such as deposition testimony. We have only the complaint. The complaint alleges that the “winter break” party has never been a part of the PISD “curriculum,” noting that no written curriculum exists for the party, that Jonathan and the other students were not graded for their participation in the party, and that PISD has never given grades for such parties. This was not the case in Walz,where the court concluded based on the summary judgment evidence that the party was expressly part of the curriculum. Walz, 342 F.3d at 279. Unlike in Walz, where the PTO organized the party, collected all the gifts, and distributed them to the students, here students were permitted to bring in their own gifts to distribute themselves. Id. at 278. In other words, the speech at issue here was like the student’s speaking to his classmates at snack time — as an individual — which is protected speech. See Walz, 342 F.3d at 279 (observing that the court did not confront a situation where a student “turned to his classmates during snack time and stated, ‘Jesus loves the little children,’ ” a situation where the student speaks as an individual and the speech is protected). In addition, there is no evidence at this stage that the “winter break” parties were “highly structured, highly supervised, and regulated” like the party in Walz. Id. Further, in Walz, school officials were concerned about the school’s promoting a particular message and therefore did not permit the PTO to distribute gifts containing a commercial, political or religious message at the holiday party. Here the complaint does not allege that Swanson or Plano ISD had any such concerns. Id. Rather, they singled out and silenced only messages that expressed a religious viewpoint. Id.
Any argument that the winter break party in our case must have been curricular because the party in Walz was curricular impermissibly disregards the allegations in the complaint, which we must accept as true, and draws inferences against the students about the nature of the party. At this stage, we cannot resolve disputed facts and we must draw all inferences in favor of the students, not against them. See Roe, 299 F.3d at 400; Brown, 188 F.3d at 586.
F.
We are not unsympathetic to school administrators who have to make numerous difficult decisions about when to place restrictions on speech in our public schools. Certainly, there could be some gray area where the administrator should get the benefit of the doubt in such situations. However, the four incidents in this case are nowhere near the gray area. If we accept the principals’ argument in this case, where the speech is so far from the realm of school-sponsored speech, then it is difficult to imagine a case where the law
V.
Imagine the United States of America where the First Amendment protects a minor’s right to play violent video games,
Our nation was built on the foundation of religious liberty and free speech.
Judges Smith, DeMoss, Clement, and Haynes join this opinion in full. Chief Judge Jones and Judges Jolly and Southwick join in Sections III.A, III.C, and III.D. Judge Prado joins in Sections III.A, III.C, IV.B, and IV.C. Judge Owen joins in Sections III.C and III.D.
. See also Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 768 (5th Cir.2007) (deeming Justice Alito's opinion controlling).
. The complaint also alleges that the principals censored parent speech, but those claims were not subject to the motion to dismiss and remain pending before the district court. In addition, the complaint asserts claims against Plano ISD. A number of these claims, including an as applied challenge to the 2004 Policy (the relevant policy in this case), violations of the U.S. Constitution, the Texas Constitution, and the Texas Religious Freedom Restoration Act (TRFRA), remain pending before the district court.
. The school's security guard followed Stephanie's mother as she was leaving the school building. As she exited the building, she noticed that two police cars were driving toward the school. When she drove away, the police followed her and pulled her over. The officers let her go without incident.
. Although in modem usage the term “secular” is often used as an antonym for “sacred” or “religious,” scholars have observed that, originally, the term secular was actually a religious concept. See generally Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions, 38 Pepperdine L.Rev. 945, 973 (2011). Classically, "secular” was the term used by lay people and ecclesiastics alike "to refer to the here and now of this world, understood as a specialized area of God’s domain.” Id. (internal quotation marks omitted). Understood in that way, even medieval governments were secular — that is, they concerned themselves with the government of this world, and not the next.
. Specifically, the complaint alleges four federal causes of action under 42 U.S.C. § 1983 — violations of the First Amendment’s Free Speech, Free Exercise, and Establishment Clauses, as well as violations of the Fourteenth Amendment's Equal Protection Clause — and two state causes of action — violations of Title V of the Texas Civil Practice
. At oral argument, the principals indicated that guidance in this area from our court would be helpful to public officials.
. Even before Tinker was decided, this court warned: "[SJchool officials cannot ignore expressions of feelings with which they do not wish to contend. They cannot infringe on their students' right to free and unrestricted expression as guaranteed to them under the First Amendment to the Constitution, where the exercise of such rights in the school buildings and school rooms do not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.1966).
. We use the correct spelling of the Barnett surname, which does not match the case caption because courts misspelled the surname as "Barnette” during the litigation.
. Although Barnette involves compelled speech and this case involves compelled silence, the Supreme Court has explicitly stated that any distinction between "compelled speech” and "compelled silence” is "without constitutional significance.” See Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988).
.Indeed, the Supreme Court in recent Terms has made it clear that the First Amendment has a broad reach, limited only by narrow, traditional carve-outs from ‘ its protection. Most recently, the Court held that California’s statute prohibiting the salé of violent video games to minors was a content-
. Justice Black’s dissent further illustrates that the Court's decision in Tinker applied to elementary school students: "[I]f the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.” Id. at 518, 89 S.Ct. 733 (Black, J., dissenting).
. See, e.g., Frazier v. Winn, 535 F.3d 1279, 1281-83 (11th Cir.2008) (finding that all Florida public school students "at all grade levels from kindergarten to twelfth grade” have the First Amendment right not to stand during the Pledge of Allegiance); Curry v. Hensiner, 513 F.3d 570, 576-77 (6th Cir.2008) (applying Hazelwood’s First Amendment framework in the elementary school setting); Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 625-29, 633 (2d Cir.2005) (applying the Hazel-wood framework in the kindergarten setting to conclude that certain speech was "school-sponsored” but nevertheless holding that "a manifestly viewpoint discriminatory restriction on school-sponsored speech is, prima facie, unconstitutional, even if reasonably related to legitimate pedagogical interests”); Hosty v. Carter, 412 F.3d 731, 735 (7th Cir. 2005) (en banc) ("The Supreme Court itself has established that age does not control the public-forum question .... [N]o public school, of any level — primary, secondary, or post-secondary — may discriminate against religious speech in a public forum (including classrooms made available to extracurricular activities) .... Hazelwood's framework applies to ... elementary and secondary schools.” (citations omitted)); Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 280 (3d Cir.2003) ("[E]lementary school students retain certain First Amendment rights of expression.”); Walker-Serrano v. Leonard, 325 F.3d 412, 417 (3d Cir.2003) (concluding that although age is a factor, "this calculus does not [necessarily] mean that third graders do not have First Amendment rights under Tinker"), Brown v. Gilmore, 258 F.3d 265, 278 (4th Cir.2001) ("Despite language in Supreme Court precedent recognizing the impressionability of elementary school children ... nothing the Court has said 'suggest[s] that, when the school was not actually advancing religion, the impressionability of students would be relevant to the Establishment Clause issue.' ” (quoting Good News Club, 533 U.S. at 116, 121 S.Ct. 2093)); Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1538 (7th Cir. 1996) (recognizing that "religious speech cannot be suppressed solely because it is religious ..., a principle that makes sense in the elementary school environment”); Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1298 (7th Cir.1993) ("[N]othing in the [F]irst [A]mendment postpones the right of religious speech until high school.”).
. "[N]either the United States Supreme Court nor the Fifth Circuit has ever held that the First Amendment free speech protections apply to elementary schools such that it is unconstitutional for public officials to practice viewpoint discrimination against religious speech in elementary schools.” Mot. to Dismiss at 2.
. "The most obvious and important 'special characteristic' of elementary schools is the tender age of the students.” Reply to Pis. Resp. to Mot. to Dismiss at 2.
. "Neither the Supreme Court nor the Fifth Circuit has ever upheld a First Amendment free speech claim by an elementary school student.” Supp. to Mot. to Dismiss at 1.
. "[E]lementary school students do not have a First Amendment free speech right to distribute non-curricular materials to their classmates during the school day____” Defs. Reply to Pis. Response to Supp. Mot. to Dismiss at 5.
. "[Njeither the Supreme Court nor the Fifth Circuit has ever extended the First Amendment ‘freedom of speech’ to the distribution of non-curricular materials in public elementary schools ...." Defs. Obj. to Magistrate’s Rep. at 2.
. “[Pjublic elementary school children do not have a constitutionally protected right to distribute non-curricular materials to other students at school .... ” Defs. Reply to Pis. Resp. To Obj. to Magistrate’s Rep. at 1.
. "[TJhere have been no decisions from this Court holding that First Amendment free speech protections apply in public elementary schools.” Appellants' Br. at 28. In addition, the issue statement from their opening brief on appeal reads: "[T]he First Amendment free speech clause is not implicated by restrictions on elementary school student-to-student distribution of non-curricular materials.”
. "The tender age of elementary schoolchildren and the unique role their schools play in nurturing them counsels strongly against such an extension of the First Amendment.” Appellants' Reply Br. at 1.
. At oral argument before the panel, counsel for the principals could not identify any case holding that elementary students have no First Amendment rights. Even where other circuits have placed restrictions on student speech, they have acknowledged that elementary school students have First Amendments rights. See supra n. 11.
. In Morse, the Court allowed school officials to restrict speech that promoted "illegal drug use.” 551 U.S. at 403, 127 S.Ct. 2618. The Court made clear that this was "not a case about political debate over the criminalization of drug use or possession,” nor did the speech convey "any sort of political or religious message.” Id. at 402-403, 127 S.Ct. 2618. Indeed, Justice Alito observed that the "special characteristic that is relevant in this case is the threat to the physical safety of students.” Id. at 424, 127 S.Ct. 2618.
. Although some of our sister circuits have intimated that viewpoint discrimination may be constitutionally permissible in the context of school-sponsored speech, neither our circuit nor the Supreme Court has ever held as much. Indeed, given the Supreme Court’s harsh criticisms of viewpoint discrimination — which it has labeled a "blatant” violation of the Free Speech Clause — we have serious doubts about the constitutionality of the practice, even in the Hazelwood context. See Rosenberger, 515 U.S. at 828-29, 115 S.Ct. 2510. "Schools cannot constitutionally interpret their basic educational mission as requiring the suppression of religious speech.” Douglas Laycock, High-Value Speech and. the Basic Educational Mission of a Public School: Some Preliminary Thoughts, 12 Lew. & Clark L.Rev. 111, 124 (2008). Allowing schools to suppress particular viewpoints would teach students a distorted and dangerous lesson about the relationship between citizen and government. See Ambach, 441 U.S. at 79, 99 S.Ct. 1589 (school officials "influence the attitudes of students toward government, the political process, and a citizen’s social re
. Indeed, the Supreme Court in recent years has made it clear that the First Amendment has a broad reach, limited only by narrow, traditional carve-outs from its protection. This year, the Court held that California's
. Since the district court’s opinion denying qualified immunity, the district court had upheld the relevant written policy at issue here — the Plano ISD 2004 policy — against a facial constitutional challenge. The principals now contend that, because the complaint alleges that the principals acted in conformity with the written policy, their actions must have been constitutional. However, this disregards the fact that the complaint also alleges that the principals acted pursuant to unwritten customs, and practices. Indeed, the complaint alleges that the unwritten policy, custom, and practice was to apply the written policy only to religious matters, thereby applying a facially neutral policy in a discriminatory fashion. No court has addressed whether the school officials’ unwritten customs and practices unlawfully discriminated
. The principals contend that elementary school students are more impressionable and therefore this case involves heightened Establishment Clause concerns. This is without merit. The Supreme Court has held that the Establishment Clause is not "a modified heckler's veto, in which a group’s religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive.” Good News Club, 533 U.S. at 119, 121 S.Ct. 2093.
. The First Amendment "mandates governmental neutrality” not only among different religions, but also "between religion and non-religion.” McCreary Cnty. v. ACLU, 545 U.S. 844, 860, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005). Accordingly, school officials need not fear an Establishment Clause violation from allowing schoolchildren with religious views to speak under the same reasonable, viewpoint-neutral terms as other students. See Hedges, 9 F.3d at 1299 ("[pjermitting individual students to pass out literature with religious messages, at times and places they could pass out literature with political or artistic themes, does not entail a ... preference” and instead reflects "neutrality toward religion.”). In contrast, a school’s efforts to expunge all religious discourse from students'
. To the extent that the principals characterize the speech as "proselytizing,” such a characterization does not affect our holding that religious viewpoint discrimination is not permissible against private student speech, absent substantial and material disruption. There is no such thing as "good religious speech” and "bad religious speech.” As Justice Scalia observed in Good News Club, regardless of whether the speech is "aimed principally at proselytizing or inculcating belief in a particular religious faith,” Rosenberger's ban on viewpoint discrimination applies with equal force. See Good News Club, 533 U.S. at 126, 121 S.Ct. 2093 (Scalia, J., concurring) (quoting Good News Club, 533 U.S. at 130, 121 S.Ct. 2093 (Stevens, J., dissenting) (observing that Rosenberger also involved proselytizing speech)). Indeed, for some evangelical Christians, proselytizing speech may be a necessary and important part of their religious beliefs, and a complete ban of proselytizing speech may implicate their Free Exercise rights as well.
. Since 1995, the constitutional prohibition on viewpoint discrimination against religious speech in schools has been well publicized by DOE, which has issued substantively identical guidelines during the Bush and Clinton Administrations. The Bush Administration in 2003 issued Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools, 68 Fed.Reg. 9645 (Feb. 28, 2003). As discussed above, the Clinton Administration issued similar guidelines in 1995, 1998, and 1999, and sent the guidelines to every school district in the country. Both of these guidelines contain multiple explanations and admonitions that private student religious speech at school is protected and may not be singled out for discriminatory prohibition, in either curricular or non-curricular situations. For example, the Clinton DOE guidelines state that school officials "may not structure or administer such rules to discriminate against religious activity or speech," "schools ... may not single out religious literature for special regulation,” and "religious messages may not be singled out for suppression.” See http://www2.ed.gov/Speeches/08-1995/ religion.html (last visited July 11, 2011).
. "[GJeneral statements of the law are ... □capable of giving fair and clear warning, and ... a general constitutional rule ... may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful.” Hope, 536 U.S. at 741, 122 S.Ct. 2508 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034). As such, "officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. Reducing the "clearly established” inquiry to asking whether " 'the very action in question has previously been held unlawful’ ” places an impermissibly "rigid gloss on the qualified immunity standard,” an approach "not consistent with [Supreme Court precedent].” Id. at 739, 122 S.Ct. 2508 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034).
. This is an example of a case the principals could not have relied upon. The Sixth Circuit decided Curry in 2008, a full four years after the last incident at issue in this case.
. See 426 F.3d at 621-22; see also Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 92, 95-98, 100 (3rd Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 1137, 175 L.Ed.2d 991 (2010) (upholding an elementary school’s restrictions on a mother's efforts to read aloud from Bible scripture to students in her son’s kindergarten classroom during a "curricular” activity); Bell v. Little Axe Indep. Sch. Dist. No. 70, 766 F.2d 1391, 1397, 1404-05 (10th Cir.1985) (forbidding school from holding teacher-supervised meetings on school premises during school hours where meetings included prayer, songs, and speakers who, appearing "usually at the behest of teachers,” discussed "how God and Christianity had benefitted the speaker in his or her daily life”).
. Many of these cases were decided after the relevant actions were taken and thus, could not have been relied upon by school administrators at the time. See al-Kidd,\3l S.Ct. at 2083 (determining clearly established law by examining law "at the time of the challenged conduct”).
. Our discussion of our sister circuits' interpretation of Hazelwood does not in any way suggest our approval of their application of
. The fact that school administrators may restrict speech that interferes with classroom instructions (and could reasonably be viewed as bearing the school's imprimatur) does not mean that they may single out religious speech for special censure or condemnation. Certainly nothing in Walz purports to disregard decades of controlling Supreme Court precedent prohibiting viewpoint discrimination.
. The principals contend that the “winter break” party had a clearly defined curricular purpose, was highly structured, supervised and regulated. Principals base these contentions on exhibit 7 to the students’ First Amendment Complaint, a letter drafted by principals’ counsel to the students. The students attached this exhibit in order to show that the principals’ claims in the letter were inaccurate and false. Specifically, the complaint alleges that the letter’s "explanation that students are not permitted to distribute any materials is simply inaccurate in practice, and has not historically occurred at Thomas.” Also, Swanson never “mentioned anything about ‘curriculum’ in any of [her] communications about the distribution of religious viewpoint material by students to other students.” Further, "the ‘winter break’ party was never ... a part of the PISD ‘curriculum’ as [the attached] letter posits.” The complaint also alleges that "PISD has never produced a copy of the curriculum for the 'winter break’ party. No written curriculum exists.” To the extent that there is a conflict between the factual allegations in the complaint and the principals’ arguments based on the letter, we must accept the complaint's version as true and draw all reasonable inferences in favor of the students. See Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.2009) (citing Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.2008)). On a motion to dismiss, we do not have the power to resolve factual disputes. See Roe, 299 F.3d at 400.
. Entm’t Merchs. Ass’n, 131 S.Ct. at 2741-42.
. Snyder, 131 S.Ct. at 1220.
. Stevens, 130 S.Ct. at 1592.
.Thomas Jefferson introduced the Virginia Statute of Religious Freedom in 1779, a statute that formed the basis of our First Amendment. It began with the words "An Act for establishing religious Freedom. Whereas, Almighty God hath created the mind free.” Virginia Statute of Religious Freedom (1786).
Concurrence Opinion
specially concurring:
I completely agree with the first paragraph of Chief Judge Jones’s special concurrence, which concludes that the principals are entitled to qualified immunity because clearly established law did not put the constitutionality of their actions beyond debate. Accordingly, I join the first part of her opinion.
However, because we are ruling on a motion to dismiss, I am reluctant to proceed further and declare as a matter of law, based only on the pleadings, that these incidents constituted First Amendment violations. As the Supreme Court has articulated, “[wjhen qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiffs claim or claims may be hard to identify,” and deciding whether a violation has occurred “is an uncomfortable exercise where ... the answer [to] whether there was a violation may depend on a kaleidoscope of facts not yet fully developed.” Pearson v. Callahan, 555 U.S. 223, 238-39, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal citations and quotation marks omitted).
Concurrence Opinion
specially concurring:
I fully agree with Judge Elrod’s passionate defense of the centrality of free speech for school children and the axiomatic prohibition of viewpoint discrimination. But I lament that, as Judge Benavides’s opinion shows, many other courts have simply not seen the issues that way in somewhat analogous cases to the one before us.
Doing so, however, makes no sense unless the en banc court attempts to state the law correctly and prevent school officials in the future from censoring private speech by students simply because it is religious. I vote to adopt Parts III A, C and D of Judge Elrod’s analysis showing that the actions of these principals violated the students’ freedom to communicate with their peers in each of the four instances before us. These instances do not fall within Hazelwood, as Judge Elrod demonstrates. Our firm statement of the principles supporting the children’s free speech in these instances is important to clarify the law of the Fifth Circuit.
Concurrence Opinion
specially concurring:
I join the specially concurring opinion of Chief Judge Jones, except to the extent that it adopts all of Part III of Judge Elrod’s dissenting opinion. I cannot agree that the law is well-settled regarding the First Amendment rights of elementary school children, for the reasons set forth in Judge Benavides’ opinion. Nor do I agree with the conclusion in Part III(B) of Judge Elrod’s opinion that the principals have waived the arguments discussed in that section. However, I agree with much of Part 111(A) of Judge Elrod’s opinion, though I do not join that section of her opinion. I do join Parts III(C) and III(D) of Judge Elrod’s opinion. I read Part III(D) as addressing' the following question: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?”
I also join in Parts II, III, and IV of Judge Benavides’ opinion.
. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
