Chiras v. Miller

Decision Date12 December 2005
Docket NumberNo. 04-10998.,04-10998.
Citation432 F.3d 606
PartiesDaniel CHIRAS, Individually; et al., Plaintiffs, Daniel Chiras, Individually; and Consuelo Rodriguez as Next Friend of Rocio Rodriguez, Individually and on Behalf of Others Similarly Situated, Plaintiffs-Appellants, v. Geraldine MILLER, in Her Official Capacity as Chair of the State Board of Education; David Bradley, in His Official Capacity as a Member of the State Board of Education and in His Individual Capacity; Don McLeroy, in His Official Capacity as a Member of the State Board of Education and in His Individual Capacity; Dan Montgomery, in His Official Capacity as a Member of the State Board of Education; Cynthia Thornton; in Her Official Capacity as a Member of the State Board of Education and in Her Individual Capacity; and Grace Shore, in Her Individual Capacity, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Steve Baughman Jensen (argued), Baron & Budd, Dallas, TX, Rebecca Epstein, Adele Phyllis Kimmel, Trial Lawyers for Pub. Justice, Washington, DC, for Plaintiffs-Appellants.

Lars Hagen (argued), Austin, TX, for Defendants-Appellees.

Scott Masur McElhaney, Jackson Walker, Dallas, TX, Clark Willis Richards, Jackson Walker, Austin, TX, for Delfattore and Ravitch, Amici Curiae.

Joseph A. Sullivan, Seth Kramer, Glenn Allen Beard, Pepper Hamilton, Philadelphia, PA, Mary Ellen Roy, J. Michael Monahan, II, Phelps Dunbar, New Orleans, LA, for Student Press Law Ctr., Amicus Curiae.

Jonathan Bloom, Weil, Gotshal & Manges, New York City, Gregory Scott Coleman, Weil, Gotshal & Manges, Austin, TX, for American Booksellers Foundation for Free Expression, Freedom to Read Foundation and National Coalition Against Censorship, Amici Curiae.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, Chief Judge, DAVIS, Circuit Judge, and FITZWATER, District Judge.1

W. EUGENE DAVIS, Circuit Judge:

Appellants Chiras, a textbook author, and Rodriguez, a high school student, challenge the district court's Rule 12(b)(6) dismissal of their action alleging that the Texas State Board of Education violated the Free Speech Clause of the First Amendment when it refused to approve Chiras' environmental science textbook for state funding. Because we find that the Appellants do not state a violation of the First Amendment, we affirm the district court's dismissal of their suit.


The Texas State Board of Education (the "SBOE" or "Board") is a body created by the state legislature2 and given a wide degree of authority over education policy in Texas, including the authority to "develop and update a long range plan for public education,"3 "establish curriculum and graduation requirements,"4 and "adopt and purchase or license textbooks as provided by Chapter 31 [of the Texas Education Code] and adopt rules required by that Chapter."5 The Board is composed of fifteen members elected from districts across Texas in biennial general elections.6

The SBOE reviews and adopts the textbooks it deems appropriate for each course.7 For each subject and grade level, the State Board of Education is required to adopt two lists of textbooks: one list includes "conforming" textbooks, the other includes "nonconforming" textbooks.8 Conforming textbooks contain material covering each element of the essential knowledge and skills of the subject and grade level as determined by the Board, while nonconforming textbooks contain material covering at least half, but not all, of those elements.9 Both conforming and nonconforming textbooks must be free from errors and meet the physical requirements adopted by the Board.10 The Board accepts or rejects each textbook proposed for placement on one of the two lists by a majority vote.11

The review process for a textbook begins with submission of the textbook by the publisher. The textbook is examined by a review panel, which evaluates the textbook according to criteria promulgated by the SBOE, and submits its evaluation to the Texas Education Agency Commissioner.12 Based on the opinion of the review panel, the Commissioner then prepares a recommendation to the Board that the textbook under consideration be placed on the conforming list, placed on the nonconforming list, or rejected.13 The Board then solicits commentary from the public on the textbook, both in written form and in hearings.14 Finally, the Board votes on each textbook to either place the book on the conforming or nonconforming list, or to reject the book.15

The SBOE has established four conditions under which a textbook can be rejected. Specifically, the Board may reject any textbook for:

(1) failure to meet essential knowledge and skills specified in the proclamation. In determining the percentage of elements of the essential knowledge and skill covered by instructional materials, each performance description shall count as an independent element of the essential knowledge and skills of the subject;

(2) failure to meet established manufacturing standards and specifications recognized by the SBOE;

(3) failure to correct errors of fact; or

(4) content that clearly conflicts with the stated purpose of the Texas Education Code, § 28.002(h).16

Section 28.002(h) of the Texas Education Code in turn provides:

The State Board of Education and each school district shall foster the continuation of the tradition of teaching United States and Texas history and the free enterprise system in regular subject matter and in reading courses and in the adoption of textbooks. A primary purpose of the public school curriculum is to prepare thoughtful, active citizens who understand the importance of patriotism and can function productively in a free enterprise society with appreciation for the basic democratic values of our state and national heritage.17

Each year, once the SBOE formulates its lists of conforming and nonconforming textbooks, the lists are circulated to individual school districts.18 School districts are required to select textbooks for use in "foundation curriculum" subjects from either the conforming or nonconforming list.19 School districts may select a book not on either list, however, for use in "enrichment curriculum" subjects.20 If a school district selects a textbook from the conforming or nonconforming list, the SBOE pays the cost of supplying copies of the textbook, subject to certain limitations.21 If, however, a school district selects a textbook not on either of the lists adopted by the Board, the Board pays only 70% of the cost of the textbooks,22 and the local school district is responsible for the remainder.23 School districts may also seek a waiver from the Texas Education Agency Commissioner to obtain full state funding for a rejected textbook.24


In May of 1999, the SBOE solicited bids from publishers for textbooks to be used in regular and advanced environmental science classes in Texas public high school. In response, Jones and Bartlett Publishers submitted the sixth edition of ENVIRONMENTAL SCIENCE: CREATING A SUSTAINABLE FUTURE, authored by Appellant Daniel Chiras.

In accordance with the Board's administrative regulations, Chiras' book was submitted to a review panel composed of professors at Texas A&M University. The review panel initially identified some potential factual errors in Chiras' book, and so notified the Commissioner in its initial report. Jones & Bartlett agreed to make corrections to some statements identified by the review panel, and provided justification for others. The review panel accepted Jones & Bartlett's revisions and reported to the Commissioner that no additional corrections were necessary. The Commissioner then placed ENVIRONMENTAL SCIENCE on the proposed list of nonconforming textbooks to be submitted for public comment. After reviewing the public comments and Jones & Bartlett's responses, the Commissioner recommended in his final report issued on October 26, 2001, that the SBOE adopt Chiras' book. ENVIRONMENTAL SCIENCE was one of only three textbooks recommended for use in regular environmental science courses, and the only textbook recommended for advanced courses.

Appellants allege that after the Commissioner issued his report, two "conservative think-tank organizations"—the Texas Public Policy Foundation ("TPPF") and Citizens for a Sound Economy ("CSE")—requested that the SBOE permit additional public comment on the proposed textbooks prior to the scheduled vote. The SBOE agreed, and scheduled a public hearing for November 8, 2001, the day before the final vote on the proposed textbooks was scheduled. Appellants also allege that Defendant-Appellees McLeroy, Shore, and Thornton—all members of the Board—worked with TPPF and CSE to "develop a strategy for rejecting Chiras' book." After the public hearing, at which members of TPPF and CSE spoke in opposition to approving ENVIRONMENTAL SCIENCE, the Board voted not to adopt Chiras' book by a vote of 10-5.

The SBOE issued no formal findings or reasons for its decision to reject ENVIRONMENTAL SCIENCE. However, Appellants identify three comments by Board members which they allege demonstrate an unconstitutional motivation to reject the textbook. First, Appellee McLeroy wrote an article published on the CSE website in which he suggested that the SBOE rejected Chiras' textbook because it was based on a "false premise" and that the textbook's "claim that the root cause of environmental problems is economic growth is simply wrong." Second, the Austin American-Statesman reported that Appellee Shore told the newspaper that "[t]he oil and gas industry should be consulted" regarding passage of proposed environmental science textbooks, because "[w]e [the oil and gas industry] always get a raw deal." Third, the Dallas Morning News reported that Appellee Bradley told the newspaper that the Board was "seeing a change in the attitude of publishers. They are starting to work with conservative groups and textbook critics ... who more...

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