Oliver v. Arnold

• Decision Date: 15 December 2021
• Docket Number: No. 20-20215,20-20215
• Citation: 19 F.4th 843 (Mem)
• Parties: Mari Leigh OLIVER, Plaintiff—Appellee, v. Benjie ARNOLD, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

19 F.4th 843 (Mem)

Mari Leigh OLIVER, Plaintiff—Appellee,

v.Benjie ARNOLD, Defendant—Appellant.

No. 20-20215

United States Court of Appeals, Fifth Circuit.

FILED December 15, 2021

Randall Lee Kallinen, Esq., Law Office of Randall L. Kallinen, P.L.L.C., Houston, TX, Geoffrey Blackwell, Esq., American Atheists Legal Center, Arlington, VA, for Plaintiff—Appellee.

Thomas Phillip Brandt, Francisco J. Valenzuela, Fanning Harper Martinson Brandt & Kutchin, P.C., Dallas, TX, for Defendant—Appellant.

Before Wiener, Dennis, and Duncan, Circuit Judges.

ON PETITION FOR REHEARING EN BANC

James L. Dennis, Circuit Judge:

Treating the petition for rehearing en banc as a petition for panel rehearing (5 TH CIR. R. 35 I.O.P.), the petition for panel rehearing is DENIED. The petition for rehearing en banc is DENIED because, at the request of one of its members, the court was polled, and a majority did not vote in favor of rehearing ( FED. R. APP. P. 35 and 5 TH CIR. R. 35 ).

In the en banc poll, seven judges voted in favor of rehearing (Judges Jones, Smith, Elrod, Duncan, Engelhardt, Oldham, and Wilson), and ten voted against rehearing (Chief Judge Owen, and Judges Stewart, Dennis, Southwick, Haynes, Graves, Higginson, Costa, Willett, and Ho).

James C. Ho, Circuit Judge, concurring in denial of rehearing en banc:

It's a sad fact of modern life in America that the culture wars are no longer limited to skirmishes between elected officials on Capitol Hill or in our state capitals. They are increasingly fought by students and parents in classrooms and before school boards across America.

This case is just one example. Viewing the evidence in the light most favorable to the plaintiff (as we must at this stage), a public school teacher punished a student for refusing to embrace certain views on America, religion, and race.

And there are countless other examples nationwide. Some teachers require students to view themselves and others differently because of their race—notwithstanding our Nation's commitment to racial equality and color-blindness. See, e.g. , Christopher F. Rufo, Woke Elementary: A Cupertino elementary school forces third-graders to deconstruct their racial identities, then rank themselves according to their "power and privilege" , CITY J. , Jan. 13, 2021; Joshua Dunn, Critical Race Theory Collides with the Law: Can a school require students to "confess their privilege" in class? , EDUCATION NEXT , May 19, 2021.

Others forbid students from using biological pronouns and other terms that "invalidate" a person's gender identity—notwithstanding the widely-held view that biological pronouns invalidate no one, but are dictated by science, faith, grammar, or tradition. See, e.g. , Jesse Bunch, Point Park University: ‘Action’ to be taken for misgendering other students , Pittsburgh Post-Gazette, Sep. 27, 2021; Caleb Parke, College student reinstated after 18-day exile from Christianity class for gender speech , FOX NEWS , Mar. 20, 2018.

Some teachers force students to express views deeply offensive to their faith. See, e.g. , Kiri Blakeley, Seventh grader ‘had to say God wasn't real’ in classroom assignment at her Texas school , DAILY MAIL , Oct. 28, 2015; Bruce Schreiner & Gilma Avalos, Florida school apologizes after students stomp on ‘Jesus’ , NBC News, Mar. 27, 2013.

And still others compel students to endorse certain political positions. See, e.g., Teacher assigns students to vote for Obama , ABC7 NEWS CHICAGO , Sep. 18, 2012; Ryan Mills, Rhode Island Teacher Offered Students Extra Credit to Testify on Critical Race Theory Bill , NAT'L REV. , June 22, 2021.

As in this case, these stories are allegations—not facts proven in a court of law. But they are allegations of constitutional violations that plaintiffs are entitled to pursue. They deserve their day in court—not summary dismissal under a misguided application of qualified immunity.

It should go without saying that forcing a public school student to embrace a particular political view serves no legitimate pedagogical function and is forbidden by the First Amendment. The Supreme Court made this clear in West Virginia State Board of Education v. Barnette , 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). In short, Barnette affirms that, if there is any "fixed star" under the First Amendment, it is that government officials—including public school officials—may not engage in viewpoint discrimination. Id. at 642, 63 S.Ct. 1178.

Both our circuit and our sister circuits across the country have repeatedly reaffirmed this principle. And naturally, this principle applies regardless of what political viewpoint the teacher is attempting to indoctrinate—whether it's a "liberal" or "conservative" public school teacher who is attempting to punish a "conservative" or "liberal" student. No legitimate pedagogical interest is served by forcing a student to endorse the political views of the teacher—not in the examples cited above, and not in the case before us today.

For its part, the dissent by Judge Duncan suggests that the various "conservative" student/"liberal" teacher examples listed above "may" pose constitutional violations. Post , at 862–63. See also id. at 862–63 & n.10 (collecting cases). The dissent by Judge Elrod likewise suggests that the answers to these examples might be found elsewhere, such as the Fourteenth Amendment. See id. at 858.

But it's unclear why they think these claims should succeed, and only Oliver's should lose.

To the contrary, the Duncan dissent is emphatic that "federal judges [do not] run for school board." Id. at 862. It proclaims that federal courts have no business "deciding whether class assignments are ‘truly pedagogical.’ " Id. It's troubled that school officials must consider students' First Amendment rights as a "regular part of curricular planning." Id. at 860. And it cites Justice Thomas's lone concurrence in Morse v. Frederick , 551 U.S. 393, 418–19, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007), which concludes that "the Constitution does not afford students a right to free speech in public schools." Post , at 862.

Likewise, the Elrod dissent says that "[p]arents may see to it that their children avoid such indoctrination"—but "not in a federal courthouse"—only "in a local school board meeting or at the ballot box," where " ‘elected officials [are] accountable to the American voter.’ " Id. at 858. But compare Dr. A. v. Hochul , 595 U.S. ––––, ––––, 142 S.Ct. 552, ––– L.Ed.2d –––– (2021) (Gorsuch, J., dissenting from the denial of application for injunctive relief) (principles in Barnette "are not matters to ‘be submitted to vote; they depend on the outcome of no elections,’ " but are "this Court's duty" to enforce) (quoting 319 U.S. at 638, 63 S.Ct. 1178 ).

Translation: School boards can do whatever they want.

This may explain why the dissenters say only that the above examples "may" pose constitutional violations—which is to say that they may not pose a constitutional violation—and certainly no obvious one. So under the dissenters' view, these claims, like Oliver's, would presumably be summarily dismissed on qualified immunity grounds.

Fortunately, the dissenters' view does not represent the law of our circuit. In our circuit, the above examples, no less than Oliver's, state constitutional violations that warrant judicial protection.

Accordingly, I concur in the denial of rehearing en banc in this case. I write separately to discuss, first, why this case demands further proceedings under the First Amendment, and second, why this case does not warrant summary judgment based on qualified immunity.

I.

Schools should educate—not indoctrinate. Teachers can teach. And teachers can test. But teachers cannot require students to endorse a particular political viewpoint.

Education is "the very foundation of good citizenship." Brown v. Bd. of Educ. , 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954). It's essential to ensuring that students obtain the knowledge they will need to become productive members of society and faithful participants in democracy. See, e.g., Wisconsin v. Yoder , 406 U.S. 205, 221, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) ("[E]ducation is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.").

So it's "clearly established that a school may compel some speech." Brinsdon v. McAllen Indep. Sch. Dist. , 863 F.3d 338, 350 (5th Cir. 2017). "Otherwise, a student who refuses to respond in class or do homework would not suffer any consequences." Id.

Teachers may obviously test students to confirm their knowledge of various topics. For example, "a teacher may, without fear of personal liability, ‘assign students to write ‘opinions’ showing how Justices Ginsburg and Scalia would analyze a particular Fourth Amendment question.’ " Id. (quoting Brown v. Li , 308 F.3d 939, 953 (9th Cir. 2002) ).

But no legitimate pedagogical interest is served by forcing students to agree with a particular political viewpoint, or by punishing those who refuse. That would offend the First Amendment—as both our court and other circuits across the country have repeatedly recognized. See, e.g., Brinsdon , 863 F.3d at 349 (educators may not "seek[ ] to inculcate [particular political] beliefs").¹ See also C.N. v. Ridgewood Bd. of Educ. , 430 F.3d 159, 187 (3rd Cir. 2005) ("[A] public educational institution may not demand that a student profess beliefs or views with which the student does not agree."); Wood v. Arnold , 915 F.3d 308, 319 (4th Cir. 2019) (same); Ward v. Polite , 667 F.3d 727, 738 (6th Cir. 2012) ("A university cannot compel a student to alter or violate her belief systems ... as the price for obtaining a degree.") (citing Barnette , 319 U.S. at 642, 63 S.Ct. 1178 ).²

A.

This bedrock constitutional principle is plainly implicated in this case. A high school sociology teacher, Benjie Arnold, required his students to transcribe the Pledge of Allegiance and listen to the Bruce...