370 F.3d 1252 (11th Cir. 2004), 01-13864, Holloman ex rel. Holloman v. Harland

Docket Nº:01-13864, 01-15094.
Citation:370 F.3d 1252
Party Name:Michael HOLLOMAN, on behalf of and as Next Friend of his son, Michael HOLLOMAN, Plaintiff-Appellant, v. George HARLAND, Fawn Allred, Defendants-Appellees. Michael Holloman, Jr., Plaintiff-Appellant, v. Walker County Board of Education, Defendant-Appellee.
Case Date:May 28, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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370 F.3d 1252 (11th Cir. 2004)

Michael HOLLOMAN, on behalf of and as Next Friend of his son, Michael HOLLOMAN, Plaintiff-Appellant,


George HARLAND, Fawn Allred, Defendants-Appellees.

Michael Holloman, Jr., Plaintiff-Appellant,


Walker County Board of Education, Defendant-Appellee.

Nos. 01-13864, 01-15094.

United States Court of Appeals, Eleventh Circuit

May 28, 2004

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Charles Clyde Tatum, Jr., Jasper, AL, for Holloman.

Phillip A. Laird, Laird & Robertson, P.C., Russell Brown Robertson, Laird & Wiley, P.C., Jasper, AL, for Defendants-Appellees.

Appeals from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, WILSON and COWEN [*], Circuit Judges.

TJOFLAT, Circuit Judge:


Michael Holloman, a former student at Parrish High School in Walker County, Alabama, filed a § 1983 suit against Fawn Allred, his economics and government teacher; George Harland, the school principal; and the Walker County Board of Education ("School Board"), which oversaw the school. He claimed that his rights under the First Amendment's Speech Clause were violated when Allred and Harland punished him for silently raising his fist during the daily flag salute instead of reciting the Pledge of Allegiance with the rest of his class. He further claims

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that his Establishment Clause rights were violated by Allred's daily "ritual" of conducting a silent moment of prayer. He sought both legal and equitable relief.

The district court granted summary judgment on both claims to Allred and Harland on qualified immunity grounds. In a separate opinion, it granted summary judgment to the School Board, concluding that Holloman failed to articulate a violation of his constitutional rights or demonstrate a way in which the Board (as a municipal governing entity) could be held liable for the acts at issue here. Holloman appeals both rulings.

Subpart A of this Part examines the facts supporting Holloman's Speech Clause claim. Subpart B explains his Establishment Clause allegations. Subpart C sets forth the framework of state statutes and School Board regulations implicated by Holloman's claims, and Subpart D delves into the procedural history of this case in greater detail. Throughout this discussion, because we are reviewing grants of summary judgment to the defendants, we view the evidence in the light most favorable to the plaintiff. See Johnson v. Governor of Florida, 353 F.3d 1287, 1292 (11th Cir. 2003).


Holloman contends that Allred and Harland violated his First Amendment right to free speech (as incorporated against the states through the Fourteenth Amendment's Due Process Clause) by treating him adversely because he silently raised his fist during the flag salute instead of reciting the Pledge of Allegiance. 1 To understand what happened, it is necessary to consider their treatment of another student, John Michael Hutto, the day before their confrontation with Holloman.


Allred taught her Economics and Government class in the first period of each day, during which time the Pledge of Allegiance was recited over the school intercom system. It was customary for students to stand by their desks, with their hands over their hearts, and recite the pledge.

During the flag salute on May 16, 2000, Hutto remained silent with his hands in his pockets, without causing a disturbance. When Allred asked him why he was not participating in the flag salute, Hutto responded that he "didn't want to say it, he didn't have to say it, and he hadn't said it for a month." Allred stated, "You don't want to say the pledge and the United States Air Force Academy has given you a scholarship?," then continued class.

At lunch that day, Allred told Harland of Hutto's refusal to say the pledge. Harland became very angry and met with Allred, Hutto, and Vice Principal Jason Adkins in his office. Harland told Hutto that he was disappointed in Hutto's refusal to salute the flag, and threatened to report the incident to both Hutto's recruiter at the Air Force Academy as well as the Congressman who had recommended Hutto to the Academy. Harland also ordered Hutto to apologize to Allred and her class for refusing to salute the flag.

Later that day, Harland went to Hutto's physics class (in which Holloman was a student) and declared that "anyone who joined in [Hutto's] protest and refused to say the pledge or committed similar action would be punished." The following day, Hutto recited the Pledge of Allegiance with the rest of the class, and the day after that he apologized to Allred and her students.

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During the flag salute on the day after the Hutto incident, Holloman stood with the other students in Allred's class, but did not recite the Pledge of Allegiance. Instead, he silently raised his fist in the air while the rest of the class recited the pledge; once the pledge was over, he sat down like everyone else. He did not say anything, touch any other students, disrupt the class, or obstruct anyone's view of the flag. Allred, however, immediately chastised him in front of the class, saying that he had acted inappropriately and "disrespectful[ly]," and that she was "disappointed." She then started class in her normal fashion.

Later that day, Allred informed Harland of what happened, and Harland summoned Allred and Holloman into the principal's office. Holloman explained that he had raised his fist "in protest of what happened to [Hutto]." Harland told Holloman "how disappointed he was, and that he felt that he had failed teaching Michael Holloman responsibility, morals and values." He also informed Holloman that he would have to serve three days' detention and could not receive his diploma until after he completed his punishment. In addition, Harland required Holloman to apologize to Allred's class. When Holloman left Harland's office, Harland called Holloman's mother, explaining "that he was too mad and upset to punish Michael at the time because he may hurt Michael."

Since graduation was that Friday, there was not enough time left in the school year for Holloman to serve his detentions while still being able to receive his diploma on graduation day. Harland consequently offered Holloman the opportunity to receive a paddling instead. Holloman agreed and, with Allred watching, was paddled by Harland.


Allred began her Economics and Government class almost every day by asking, "Does anyone have any prayer requests?" After her students offered various dedications, Allred would hold a moment of silence. Allred frequently opened this moment of silence by saying "Let us pray," and often ended it by saying "Amen." Allred explicitly states that over the 1999-2000 school year, this practice became a daily "ritual." She never told her students that they were free to leave the room during either her prayer requests or the subsequent moment of silent prayer.

One day, Vice Principal Adkins sat in on her class and personally observed this phenomenon. When Allred attempted to begin her economics lesson, one of her students raised her hand and reminded Allred that she had forgotten to elicit her customary prayer requests. At that point, Allred took prayer requests from the class, then commenced a moment of silence by saying, "Let us pray." On another occasion, at the conclusion of the moment of silence, Allred permitted one of her students to read aloud a passage from the Bible.


The events in this case did not occur in a vacuum. In 1995, the Alabama state legislature enacted a statute which required the State Board of Education and all local school boards to

develop and implement ... a comprehensive character education program for all grades to consist of not less than ten minutes of instruction per day focusing upon the students' development of the following character traits: courage, patriotism, citizenship, honesty, fairness, respect for others, kindness, cooperation, self-respect, self-control, courtesy, compassion, tolerance, diligence,

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generosity, punctuality, cleanliness, cheerfulness, school pride, respect for the environment, patience, creativity, sportsmanship, loyalty, and perseverance. Each plan of instruction shall include the Pledge of Allegiance to the American flag.

Ala.Code § 16-6B-2(h). This law made daily recitation of the Pledge of Allegiance a part of the character education program the Legislature required local school boards to implement. A separate statute, however, emphasized that students should not be forced to recite the pledge. See Ala.Code § 16-43-5 ("The State Board of Education shall afford all students attending public kindergarten, primary and secondary schools the opportunity each school day to voluntarily recite the pledge of allegiance to the United States flag." (emphasis added)).

To implement these requirements, Larry Banks, the Superintendent of the Walker County School District, sent a letter on behalf of the Walker County Board of Education to all the principals in the district, stating, "[E]ach school system must incorporate a Character Education Plan which will consist of 10 minutes of instruction per day in various areas, such as, the Pledge of Allegiance.... Each day must include the Pledge of Allegiance and then other areas as mentioned as you determine at your school."

Banks also sent each principal a form to complete to specify how each school intended to incorporate into its curriculum the character-education...

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