Curry ex rel Curry v. Hensiner, 06-2439.

Decision Date16 January 2008
Docket NumberNo. 06-2439.,06-2439.
Citation513 F.3d 570
PartiesJoel CURRY, a minor, by and through his parents, Paul & Melanie CURRY, Plaintiff-Appellant, v. Irene HENSINER, Principal Handley School, Defendant-Appellee, Saginaw City School District, Defendant.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Jeffrey A. Shafer, Alliance Defense Fund, Washington, DC, for Appellant. Mary Massaron Ross, Plunkett & Cooney, Detroit, Michigan, for Appellee. ON BRIEF: Jeffrey A. Shafer, Alliance Defense Fund, Washington, DC, for Appellant. Mary Massaron Ross, Plunkett & Cooney, Detroit, Michigan, for Appellee. Steven W. Fitschen, National Legal Foundation, Virginia Beach, Virginia, for Amicus Curiae.

Before: NORRIS, GIBBONS, and ROGERS, Circuit Judges.

OPINION

ALAN E. NORRIS, Circuit Judge.

In this appeal, we address whether an elementary school student has a First Amendment right to promote an unsolicited religious message during an organized curricular activity.

Plaintiff Joel Curry and his parents filed suit against the School District of Saginaw, Michigan, and Irene Hensinger, the principal of the school Joel attended, alleging that Joel's constitutional rights were abridged when Principal Hensinger did not allow Joel to. "sell" pipe-cleaner candy canes if a card bearing a religious message was attached. A "sale" of goods was to occur at a three-day simulated marketplace event that existed as part of the fifth grade curriculum at Joel's elementary school.

The district court granted defendants' motion for summary judgment as to all parties. It first reasoned that no violation of Joel's First Amendment right could be attributed to the school district. Turning to Principal Hensinger, the court concluded that she had abridged Joel's constitutional right to freedom of speech, but enjoyed qualified immunity from liability because the precise contours of that right were not clearly established.

On appeal, Plaintiff contends that the district court erred in its application of qualified immunity to Principal Hensinger. We conclude that Principal Hensinger did not violate a constitutional right enjoyed by Joel and we therefore affirm the district court's grant of summary judgment, albeit on different grounds.

I.

Joel Curry was a fifth grade student at the Handley School in Saginaw, Michigan during the 2003-2004 academic year. As part of the fifth grade curriculum, students participated in an exercise called "Classroom City." The event was designed to provide students a variety of learning experiences including exposure to literature, marketing, government, civics, economics, and mathematics. The exercise culminated in a three-day event held, in the school gymnasium during which students, using faux school currency, sold goods they had produced specifically for the event.

Lisa Sweebe, Joel's social studies teacher, managed the exercise. In early November, Sweebe sent out packets to students and their parents describing Classroom City and what was expected of the students. The 2003 Classroom City was held on December 11, 12, and 16. The guidelines for the assignment stated:

• You will need to create, market, and sell a product for the simulation Class Room City.

• You cannot sell or use food products.

• You cannot play or sell games of chance.

• Your product must be something that is handmade.

• Materials and supplies cannot exceed $10.00 in cost.

• You can sell as many as three different products.

• You will need a sample of your product(s) to do an all school market survey. You will receive more details from your math teacher concerning the market survey.

• Your market analysis will help you determine how much inventory you will need to start your business.

• Remember as you prepare for your business that part of the spirit of the competition is to have a product that stands out from all the others.

As indicated above, before a product could be approved for sale, students were required to conduct a market survey. Participants created a prototype of their products, and a representative sample of the student body taken from all grades was asked to indicate which products they might be willing to purchase. During the actual three-day event, the entire student body, under the supervision of the physical education instructor, attended Classroom City and made purchases at the mock storefronts with the faux currency. The stores were monitored to see which students accumulated the most money.

At the suggestion of his mother, Joel decided to make Christmas tree ornaments in the shape of candy canes utilizing pipe cleaners and beads. Joel's father offered to create cards to attach to the ornaments explaining how the candy cane can be viewed as a symbol of Christianity. However, when Joel submitted his ornament prototype for the market survey, he did not attach the card.

Sometime after the market survey was completed, Joel added a card to the ornaments he planned to sell during Classroom City. It read as follows:

The Meaning of the Candy Cane

Hard candy: Reminds us that Jesus is like a "rock," strong and dependable.

The color Red: Is for God's love that sent Jesus to give his life for us on the cross.

The Stripes: Remind us of Jesus' suffering—his crown of thorns, the wounds in his hands and feet; and the cross on which he died.

Peppermint Flavor: Is like the gift of spices from the wise men.

White Candy: Stands for Jesus as the holy, sinless Son of God.

Cane: Is like a staff used by shepherds in caring for sheep. Jesus leads us and watches over us when we Trust him.

Joel and his parents did not alert school administrators to the addition of the card.

Joel was paired for the exercise with Siddarth Reddy. The two decided that Siddarth would prepare the storefront and Joel would prepare the products to sell. When Siddarth learned of the card, he informed Joel that "[n]obody wants to hear about Jesus." Siddarth subsequently decided to make his own products for sale, resulting in his bearing the burden of both constructing the storefront and making a product for sale. During the event itself, Joel manned the storefront during the morning hours and Siddarth during the afternoon.

On December 11, 2003, the first day of the Classroom City event, Jennifer Harris, the gym teacher, who was supervising Classroom City, sought the counsel of Lisa Sweebe when she discovered that Joel was "selling religious items." Sweebe proceeded to Joel's storefront to see what he was selling. Joel showed Sweebe his ornament with the attached card. Sweebe asked Joel if the card had been attached at the time of the market survey, and Joel said that it had not. Although Joel's product did not violate the rules of Classroom City, Sweebe told Joel that he could not sell the ornament with the card attached until she had a chance to talk with the principal, Irene Hensinger. She further stated that he had done nothing wrong, but she was concerned about the card's religious content and whether other students might be offended. For the rest of the day, Joel sold his ornaments without the card.

Sweebe initially was unable to locate Hensinger. Around noon, Joel's mother arrived at the school. After learning that Joel was not permitted to sell the ornament with the attachment, she told Sweebe that the use of the cards fell within Joel's constitutional rights as a student and offered to bring in some literature supporting her position.

Later that afternoon, Sweebe left a note for Hensinger, which included a copy of the card's content along with the question, "Can this be sold? Mom says this is within Joel's rights? I need your okay." Later, when Sweebe discussed the matter with Hensinger, she also provided the literature that Joel's mother had furnished. Hensinger, in turn, passed the information on to assistant superintendent Dr. John Norwood.

That evening at home, Joel told his mother that he wished to sell the ornaments with the card so that others could learn about Jesus. The following day, December 12, Joel's mother placed a copy of an article written by an attorney entitled "Students' Rights on Public School Campuses" in Sweebe's school mailbox. She included a note informing Sweebe, "[t]here is just a ton of info on the internet [sic] from various organizations. Some of the groups are even offering free counsel to anyone who may have questions about students' rights to free speech."

This article along with the note was also forwarded to Dr. Norwood by Hensinger. At some point between December 12 and 16, Hensinger spoke to Dr. Norwood about Joel's ornament and attached card. Both were of the opinion that the use of the card was inappropriate. On the morning of December 16, Hensinger met with Joel's mother and informed her that, after consideration, the school would not permit Joel to sell the ornaments with the attached card. Hensinger further stated that Classroom City was considered instructional time and, because the cards contained religious content, their use would not be permitted. If Joel still wished to sell the candy canes with the card, he could do so after school in the parking lot. Joel did not attempt to sell his ornaments with the cards in the parking lot. Instead, he sold the ornaments without the cards during the exercise.

Joel received a grade of "A" for his part of the Classroom City project, and was not disciplined for attempting to sell the candy canes with the religious cards. The parties agree that Hensinger's actions were taken in her official capacity as principal of the school.

II.

We review a district court's grant of summary judgment de novo, employing the same standard as the district court. Farhat v. Jopke, 370 F.3d 580, 587 (6th Cir.2004). Summary judgment is appropriate where the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c).

A. Qualified Immunity

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