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

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In June, I wrote about Oliver v. Arnold, which dealt with a complicated question: A public school may of course compel a great deal of speech by its students (on exams, papers, homework assignments, and in-class exercises); but it may not compel its students to "declare a belief," for instance by saluting the flag or pledging allegiance to it—or, of course, to any other symbol or idea. Where then would the line be drawn between the two?

The panel concluded that the line should turn on the motive of whoever mandates the exercise (such as teachers, or presumably also administrators or school boards); the school sought en banc, and Wednesday the court denied such rehearing. Here are some excerpts from the opinions on the subject.

[1.] From Judge Ho's concurrence in denial of rehearing en banc:

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. 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. Some teachers force students to express views deeply offensive to their faith. And still others compel students to endorse certain political positions.

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 (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.

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….

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

[I]t's "clearly established that a school may compel some speech." Brinsdon v. McAllen Indep. Sch. Dist. (5th Cir. 2017). "Otherwise, a student who refuses to respond in class or do homework would not suffer any consequences." 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.'"

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….

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 Springsteen song "Born in the U.S.A." Arnold gave this assignment to "'teach students that people sometimes recite things every day out of habit and without thinking about what they are actually saying.'"

One of his students, Mari Leigh Oliver, did not wish to participate in this particular assignment. That's because, as "a young black woman …, 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"—and because, "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."

It's easy to understand how those of us who deeply love this country would be upset by these sentiments. But like it or not, it's hard to claim that Oliver wasn't "thinking about" the words of the Pledge—after all, her whole point was that she strongly disagrees with the words of the Pledge. If anything, Oliver's response might be an object lesson in—to take Arnold at his word—the importance of not "'recit[ing] things every day out of habit and without thinking about what [you] are actually saying.'"

Yet Arnold informed Oliver—in front of the entire class—that he would give her a grade of "zero" on the assignment. What's more, Arnold went on and delivered extended remarks that confirmed that his agenda here was not pedagogical, but personal. As he told the class, "you can have all the beliefs, and resentment, and animosity that you want." But "if you can tell me two countries you'd rather go to, I will pay your way there if they're communist or socialist. Most of Europe is socialist and it's crumbling. Or it's communism. But if you ever come back you have to pay me twice what it cost me to send you there."

"You know there's a lot of things I complain about. So when it comes time in November I go vote, or I protest in writing, in legal. Those are the ways we do it in America. Where a country will crumble is when people coming into a country do not assimilate to that country. That doesn't mean you forget Day of the Dead, and whatever cultures, you maintain your language. That doesn't mean that. But you're not gonna drive on the left side of the road, and you're not gonna impose Sharia law. Because it's not. This. Country. But what is happening, and I can say it a lot more than you because I've lived longer. It's almost as [if] America's assimilating to THOSE countries." …

Based on the record evidence, including Arnold's own remarks, a jury could reasonably conclude that the Pledge assignment served no legitimate pedagogical purpose, and that Arnold was engaged in nothing more than viewpoint discrimination against one of his students. {The dissenters contend that it is wrong for a court to examine a teacher's motive. But as the above cases affirm, courts may determine whether a stated pedagogical purpose is "legitimate" or a "pretext" for viewpoint discrimination. We're just asking whether Arnold is serving a pedagogical interest—or a personal, political one. Under the dissent's view, by contrast, courts would be required to defer to school officials—both in this case and in the examples set forth in my introduction.}

It's also possible, to be sure, that Arnold can convince a jury that he was trying to further a legitimate pedagogical objective, not to punish Oliver for disagreeing with him. But that is precisely the point—the record evidence is sufficient to warrant further proceedings, and thus to preclude summary judgment on grounds of qualified immunity….

[T]he problem here [as alleged by plaintiffs] wasn't that Arnold asked students either to memorize or analyze an important text. It's that he then used the assignment as a pretext to punish Oliver for disagreeing with his view of the Pledge—as his own words again confirm….

If left unchecked, it establishes a dangerous precedent. Imagine that another public high school teacher prepares the following "spelling" assignment: A worksheet tells the story of a person whose gender identity differs from their biological sex at birth. The pronouns in that story are all left blank. The teacher instructs students to fill in the blanks of that story with female pronouns. Now imagine that the teacher's required pronoun usage deeply offends one or more students. May the teacher punish students who refuse to endorse the teacher's pronoun usage, on the ground that it's just a "spelling" test to ensure that high school seniors know how to spell "she" and "her"? (Does it matter whether the student is offended because she believes strongly in pronouns consistent with biological sex at birth, or pronouns that accommodate a person's preference?)

To Arnold's credit, he admits his was no memorization exercise—just as, in my hypothetical, one would hope the teacher would admit this was no spelling test. But let's say both teachers lie. They claim that these are bona fide memorization and spelling assignments. Under established precedent, courts may ignore such patently pretextual justifications in order to protect First Amendment rights of conscience—and disregard either assignment as mere pretext for enforcing orthodoxy….

Our society and our schools once embraced the quintessentially American maxim: "I disapprove of what you say, but I will defend to the death your right to say it." But our culture and our teachers are increasingly sending citizens and students the opposite message: I disapprove of what you say, and I will use every means at my disposal to stop you from saying it." …

[O]ur court's decision today … affirms our Nation's founding commitment to freedom of speech. [It is a] decision that enforces the First Amendment where it is increasingly needed—in public school classrooms nationwide. A decision to deny qualified immunity and hold public officials accountable where the constitutional violation is not only obvious, but trending….

Judge Jennifer Walker Elrod, joined by Judges Jones, Smith, Duncan, Engelhardt, and Wilson, dissented:

Can a teacher in the Fifth Circuit be held liable for money damages for giving an in-class writing assignment? Until now, no. The district court, the panel majority, and the concurring opinion do not identify a single case where this has happened before—not in the Fifth Circuit, not anywhere else. Yet somehow each finds a way to deny Arnold qualified immunity. Federal judges should not be in the business of policing the lesson plans of public-school teachers. But even when we must, qualified immunity should protect a teacher who (until now) could not have known that his conduct violated a student's constitutional rights….

[W]hen assessing whether a teacher had a "fair warning" [that his actions violate a constitutional right, which would strip him of qualified immunity], looking to a "fixed star" is a sign that the right is being assessed at far too high a level of generality. Barnette involved students being required to stand and salute the American flag and pledge fealty to it. In Morgan we relied on it for the proposition that students—even elementary school students—have First Amendment rights. Oliver, on the other hand, had to complete an in-class writing assignment, which was designed to teach sociology students that people often do not even pay attention to—much less mean—things that they regurgitate from memory, be it the Pledge of Allegiance or the lyrics to "Born in the U.S.A." by Bruce Springsteen (a.k.a. "the Boss")….

Importantly and problematically, the panel majority rested its conclusion on the district court's finding a factual dispute about Arnold's "impure motive" in giving this assignment. But for qualified-immunity purposes, "a particular defendant's subjective state of mind has no bearing on whether that defendant is entitled to qualified immunity." Granted, under some circumstances we do consider subjective intent, like with race discrimination or First Amendment retaliation claims. But as those examples indicate, we do so when an official's subjective state of mind is an element of the claim—for race discrimination, motive is key; for First Amendment retaliation, adverse action must be because of the plaintiff's protected speech.

But in determining whether speech was compelled in violation of the First Amendment, motive is irrelevant. To establish that her speech was compelled in violation of the First Amendment, Oliver does not have to show that Arnold intended to make her pledge loyalty to America. The focus of our inquiry is not the teacher's motive, but the student's compelled act. Otherwise, the vindication of a student's constitutional rights hinges on a teacher's earnestness rather than the objective reasonableness of the teacher's actions. True, this approach provides Oliver a short-term win: She may proceed to trial on her claims. But in the long-run, students lose. Because a student must now prove her educator's "impure motive," a student is much less likely to prevail at the end of the day….

Judge Stuart Kyle Duncan, Circuit Judge, joined in relevant part by Judges Smith, Elrod, Engelhardt, and Wilson, Circuit Judges, also filed a separate dissent:

In our circuit, public school teachers can make students pledge allegiance to Mexico but can't make students write down our own pledge. The first assignment is a "cultural and educational exercise," Brinsdon v. McAllen Indep. Sch. Dist. (5th Cir. 2017), but the second is a compelled patriotic statement forbidden by the First Amendment. A teacher who gives the first assignment merits qualified immunity, but a teacher who gives the second will have to convince a jury he had a "pedagogical purpose." …

Our law in this area is, in other words, a dumpster fire. We should have taken this case en banc to put it out. Then we could have addressed in a more coherent way how the First Amendment applies to student speech and public school curricula, an important and developing field. For reasons that baffle me, a majority of my colleagues declines the opportunity….

[T]he panel is wrong that the teacher's "motivations" matter. Barnette does not support that view. It accepted as legitimate the school board's purpose (i.e., fostering "[n]ational unity") but rejected the "means for its achievement" (i.e., "compelling the flag salute and pledge"). To be sure, the panel cites our Brinsdon decision as authority for weighing the assignment's "pedagogical purposes." But Brinsdon was mistaken on that point….

Judge Andrew S. Oldham, Circuit Judge, joined by Elrod, Circuit Judge, also wrote a short separate dissent, likewise condemning the panel's focus on the motives of the teacher.