The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Assignments Aimed at "Requiring a Statement" of Ideological Belief from Students May Violate First Amendment

So holds a Fifth Circuit panel (by a 2-to-1 vote), in an assignment requiring the writing of the Pledge of Allegiance, but the same argument would apply, I think, to compelled statements of other ideologies, whether related to patriotism, race, sex, sexual orientation, or anything else.


The case is Oliver v. Arnold, decided yesterday by the Fifth Circuit, in an opinion by Judge James L. Dennis joined by Judges Jack Weiner. I expect the opinion will be an important precedent in much of the litigation about compelled "diversity, equity, and inclusion" assignments in public schools. The fundamental precedent on which the case relies, W. Va. State Bd. of Ed. v. Barnette (1943), broadly forbade "compulsion of students to declare a belief,"and condemned all attempts "to coerce uniformity of sentiment in support of some end thought essential to their time and country." Though the case involved a compelled flag salute and pledge of allegiance, its rationale went well beyond the particular patriotic expressions that were  being compelled.

The key question will be where the line is drawn between (1) commonplace and presumably constitutional assignments aimed at encouraging students to believe the particular facts and modes of analysis being taught (whether in biology class, economics class, history class, or what have you), and requiring them to show that they've learned the material, and (2) forbidden assignments created "with the impermissible motive of requiring a statement of patriotism [or other ideological belief] from … students." Such a line can, I think, be drawn, but it will take more litigation to establish it.

From the majority:

Under Texas state law, public school districts must require students to recite the United States Pledge of Allegiance … every school day. However, the law requires schools to excuse any student from this obligation "[o]n written request from a student's parent or guardian." …

Oliver is a young black woman who was enrolled as a student at Klein Oak High School … within [the Klein Independent School District] during the events that gave rise to this case. Oliver objects to the Pledge because she feels that the portion declaring America to be a nation "under God" fails to recognize many religions and does not match her personal religious beliefs. She further believes that, contrary to the words of the Pledge, there is not "freedom and justice for all" in America because she and other black people continue to experience widespread racial persecution. Oliver therefore declines to stand for or recite the Pledge ….

[In 2017,] Oliver took Arnold's Sociology class. On August 18, 2017, the Klein Oak principal held a meeting with Oliver's teachers, including Arnold, and instructed them that Oliver was not required to participate in the Pledge. Nonetheless, on September 20, 2017, Arnold gave the class an assignment to transcribe the words of the Pledge of Allegiance …. Although Arnold claims that the assignment had a pedagogical purpose, the district court found that his intentions were genuinely disputed, and we therefore must assume for purposes of this appeal that Arnold's justification was pretextual and Arnold intended the assignment as a mandatory statement of patriotic belief from his students. Oliver refused to complete the assignment and instead drew a "squiggly line."

During class the next day, Arnold told his students that anyone who did not complete the Pledge assignment would receive a grade of zero. Arnold then engaged in an extended diatribe, which we must assume was aimed at Oliver and motivated by his hostility toward her refusal to transcribe the Pledge, in which he lamented what he viewed as the decline of American values and decried a variety of people whose attitudes he deemed to be un-American, including communists, supporters of Sharia law, foreigners who refuse to assimilate into American culture, and sex offenders and those that argue for their rehabilitation….

In the days that followed, Arnold continued to exhibit hostility toward Oliver and treat her more harshly than other students as a result of her refusal to transcribe the Pledge, including by repeatedly moving her seat, intentionally calling her by the wrong name, and making disparaging comments about her accomplishments in extracurricular activities. Although Arnold denies treating Oliver differently than other students and maintains that he enforced his classroom rules evenly, the district court again found that these facts are genuinely disputed, and we thus must assume that Arnold singled Oliver out for hostile mistreatment as a result of her opposition to the Pledge assignment….

The district court … found that genuine disputes of fact existed regarding whether Arnold assigned transcription of the Pledge with the impermissible motive of requiring a statement of patriotism from his students, and the court therefore concluded that Arnold was not entitled to summary judgment on Oliver's compelled speech claim. The court further determined that "a reasonable jury could conclude that Arnold exhibited hostility toward, and retaliated against, Oliver for refusing to write the pledge, and that he threatened to give a zero to anyone who refused to write the pledge (whether he acted on the threat or not)." "A jury could also reasonably find that Arnold's speech to the class and threat to punish refusal to write the pledge with a zero would chill a person of ordinary firmness from exercising protected speech," the district court concluded, which precluded a grant of summary judgment on Arnold's claim for First Amendment retaliation….

The court of appeals concluded that, if the facts were as Oliver alleged, she could prevail on her legal claims:

[Arnold] contends that Oliver's compelled speech claim fails because [Oliver's mother] did not submit a [statutory] request and Oliver was thus required by state law to participate in the Pledge; because the Pledge assignment was given for pedagogical purposes, and, under Brinsdon v. McAllen Independent School District, 863 F.3d 338 (5th Cir. 2017) [which allowed a qualified immunity defense for an assignment in Spanish class that "required students to memorize and recite in Spanish the Mexican Pledge of Allegiance and sing the Mexican National Anthem" -EV], it does not violate clearly established law to require a student to participate in the Pledge for didactic reasons; and, relatedly, because a refusal to complete a class assignment given for pedagogical reasons is not expressive conduct protected by the First Amendment. But, as we have stated, the district court found these facts to be genuinely disputed, and we must assume due to the posture of this appeal that [Oliver's mother] did submit a valid [statutory] request and that Arnold gave the Pledge assignment "for the purposes of teaching, fostering[,] and perpetuating the ideals, principles[,] and spirit of Americanism"—the intent the Supreme Court found impermissible in Barnette.

Similarly, Arnold argues that Oliver does not have a valid claim for retaliation because her refusal to complete the Pledge assignment was not constitutionally protected activity, because "the evidence" shows he did not harass her or treat her differently than other students, and because any adverse actions he took were not motivated by Oliver's refusal to complete the Pledge assignment. But, again, because the district court found these facts to be genuinely disputed, we must assume for purposes of this appeal that Arnold gave the Pledge assignment for impermissible purposes, rendering Oliver's refusal protected activity; that Arnold singled Oliver out and treated her differently than other students; and that these adverse actions were motivated by hostility to Oliver's refusal to complete the Pledge assignment….

Arnold raises no argument as to why, if he did engage in the actions toward Oliver that she alleges and he was substantially motivated by opposition to Oliver's refusal to complete the Pledge assignment, they nonetheless failed to cause Oliver "an injury that would chill a person of ordinary firmness from continuing to engage in that [protected] activity." … [A]rguments that are not raised on appeal are waived.

Our dissenting colleague argues that Arnold simply gave an unconventional teaching assignment that no clearly established law prohibits. He further posits that, in holding that Arnold's conduct, if proven, would violate clearly established rights, we open the door for students to sue over any classwork they deem offensive. But the dissent fails … to consider the facts in the light most favorable to Oliver. In this appeal, the "impure motive" we must assume Arnold had for giving the Pledge assignment is not simply "foster[ing] respect for the Pledge" as the dissent contends.

Instead, because the district court found that Arnold's motives are genuinely disputed, we must presume here that Arnold was requiring his students to make precisely the sort of written oath of allegiance that the dissent acknowledges would be impermissible. We are not permitted to look beyond the district court's findings of disputed facts to conclude that, based on the evidence in the record, Arnold was instead merely employing a "curious teaching method."

The dissent also places much weight on the fact that what is at issue here is a "written assignment." But the Court in Barnette stated, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." It is immaterial that, under the facts we must accept here, the required pledge was a written oath rather than an oral one and that the consequence for non-compliance was an academic penalty rather than an overt disciplinary action.

Barnette clearly states that teachers and other school officials may not require students to swear allegiance, and with the case in this posture, we must assume that this is what Arnold did. Thus, there is no danger that our decision will pave the way for students to file lawsuits over their being required to study Dr. Seuss or any of the other figures featured in the scenarios the dissent imagines. Unless a teacher is requiring students to swear their fealty and devotion to Dr. Seuss and his teachings, the assignments the dissent envisions are clearly not implicated by the present case….

Judge Duncan dissented:

The law forbids a public school teacher from compelling students to recite the Pledge of Allegiance. But nothing like that is going on here. As part of [a yearly] in-class exercise, a sociology teacher asked students to see if they could write the Pledge's words from memory. This assignment followed one where students would ponder the lyrics to Bruce Springsteen's "Born in the U.S.A." No case says this teaching method—unorthodox though it may be—violates the First Amendment. That is true whatever the teacher's motives for giving the assignment….

The majority's contrary approach, which sends the case to trial, would make countless classroom assignments fodder for federal lawsuits whenever a student claims offense. Indeed, so far as I can tell, this is the first decision by any federal circuit permitting a student to challenge a written assignment as "compelled speech" under the First Amendment. We should not go down that road….

Qualified immunity yields only where an official violates "clearly established law," meaning binding authority "that defines the contours of the right in question with a high degree of particularity." But Barnette does not provide the "particularity" to settle Oliver's First Amendment claims. In Barnette, the Pledge figured in a distinct context: students were made to join in a "ceremony" where they stood and "salut[ed]" the American flag while reciting the Pledge. By contrast, the Pledge assignment here involves nothing like Barnette's coerced ceremonial recitation. Rather, the undisputed record shows students would "transcribe" the Pledge's words as part of a timed in-class exercise.

This is a curious teaching method, but no case cited to us addresses whether it violates the First Amendment. The majority mentions our Barnette-related decision in Brinsdon, but that case addressed a mock exercise where students had to "mimic the pledge ceremony that Mexican citizens follow" by reciting the Mexican Pledge of Allegiance and singing the Mexican National Anthem. Like Barnette, Brinsdon involved a coerced pledge recitation, not an assignment where students write a pledge's words.

The majority concludes we lack jurisdiction to decide this issue because of disputes about Arnold's motives for giving the assignment. Like the district court, it relies on an in-class monologue Arnold gave the day after the assignment—a stream-of-consciousness rant ranging from the Pledge to communism, the Pope, the Cuban Missile Crisis, sex offender laws, and the Day of the Dead (the Mexican holiday, not the zombie movie)…. I assume a jury could therefore infer that Arnold gave the assignment hoping to inculcate respect for the Pledge….

[But l]et's assume Arnold had an impure motive for giving the Pledge assignment. What decision clearly establishes that, because of that motive, he violated the First Amendment? Indeed, what decision says that asking students to write down words as part of a class exercise constitutes "compelled speech" in the first place?1 To be sure, one can conjure up a scenario where a teacher makes students "swear allegiance" to the flag through a written oath. But no one pretends that is the situation here. {Cf. Wood v. Arnold (4th Cir. 2019) (assignment asking history students to list the "Five Pillars" of Islam "did not require [the plaintiff student] to profess or accept the tenets of Islam"); C.N. v. Ridgewood Bd. of Educ. (3d Cir. 2005) ("A student may … be forced to speak or write on a particular topic even though the student might prefer a different topic."); Axson-Flynn v. Johnson (10th Cir. 2004) (declining to adopt a First Amendment standard that would "effectively give each student veto power over curricular requirements, subjecting the curricular decisions of teachers to the whims of what a particular student does or does not feel like learning on a given day"); see also, e.g., Mahanoy Area Sch. Dist. v. B.L. (2021) (Alito, J., concurring) ("In a math class, for example, the teacher can insist that students talk about math, not some other subject.").}

{One can also imagine a written classroom assignment so contrary to a student's religious beliefs that making him do it would violate the Free Exercise Clause—for instance, an assignment to write the words, "Jesus was not the Son of God" or "Praise be Quetzalcoatl." See, e.g., Christopher F. Rufo, Revenge of the Gods (discussing a proposed "ethnic studies curriculum" in California that "urges students to chant to the Aztec deity of human sacrifice"). Again, we do not have anything like that here.}

Finally, consider the implications of the majority's approach. It sends to trial a § 1983 claim based on a student's objection to a written assignment, merely because there is a question about the teacher's motive for giving it. One can imagine where this approach, if taken in a precedential opinion, might lead. It is not a happy place.

We live in an easily offended age. Even Dr. Seuss is controversial. Suppose, for instance, a teacher asks students to memorize and write down these well-known passages:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed[.]"

The words teem with occasions for offense: they are arguably sexist ("Men") and religious ("Creator"), and were written by a notorious slaveholder. What if there were evidence the teacher gave the assignment to inculcate respect for Thomas Jefferson? Lawsuit.

Or suppose a teacher, hoping to pass on the legacy of Dr. Martin Luther King, Jr., asks students to transcribe his most famous speech, which contains this passage:

"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

Today, this aspiration of colorblindness has come under fire [citing Ibram Kendi and Cornel West]. May an offended student sue the teacher for being asked to copy Dr. King's words? Under the majority's approach, yes.