supplemental en banc brief of appellants swanson bomchill (00387658)

8/6/2019 Supplemental en Banc Brief of Appellants Swanson Bomchill (00387658)

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Case No. 09-40373

In the United States Court of Appeals

for the Fifth Circuit

DOUG MORGAN;ROBIN MORGAN;JIM SHELL;SUNNY SHELL;

SHERRIE VERSHER;CHRISTINE WADE

Plaintiffs-Appellees

v.

LYNN

SWANSON

,IN HER INDIVIDUAL CAPACITY AND AS

PRINCIPAL OF

THOMAS

ELEMENTARY SCHOOL;JACKIE BOMCHILL, IN HER INDIVIDUAL CAPACITY AND

AS PRINCIPAL OF RASORELEMENTARY SCHOOL

Defendants-Appellants

On Appeal from the United States District Court

for the Eastern District of Texas, Sherman Division

SUPPLEMENTAL EN BANC BRIEF OF APPELLANTS

LYNN SWANSON AND JACKIE BOMCHILL

Thomas P. Brandt

Joshua A. Skinner

David R. Upham

FANNING HARPER MARTINSON

BRANDT &KUTCHIN,P.C.

Two Energy Square

4849 Greenville Ave., Suite 1300Dallas, Texas 75206

(214) 369-1300 (office)

(214) 987-9649 (telecopier)

ATTORNEYS FOR DEFENDANTS-APPELLANTS

LYNN SWANSON AND JACKIE BOMCHILL

Case: 09-40373 Document: 00511405662 Page: 1 Date Filed: 03/09/2011


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CERTIFICATE OF INTERESTED PERSONS

Case No. 09-40373

DOUG MORGAN;ROBIN MORGAN;JIM SHELL;SUNNY SHELL;

SHERRIE VERSHER;CHRISTINE WADE

Plaintiffs-Appellees

v.

LYNN SWANSON, IN HER INDIVIDUAL CAPACITY AND AS PRINCIPAL OF THOMAS

ELEMENTARY SCHOOL;JACKIE BOMCHILL, IN HER INDIVIDUAL CAPACITY AND AS

PRINCIPAL OF RASOR ELEMENTARY SCHOOL

Defendants-Appellants

The undersigned counsel of record certifies that the following listed persons

and entities as described in the fourth sentence of Rule 28.2.1 have an interest in

the outcome of this case. These representations are made in order that the judges

of this court may evaluate possible disqualification or recusal.

1. Defendants-Appellants Lynn Swanson and Jackie Bomchill arerepresented by:

Thomas P. Brandt

Joshua A. Skinner

David R. Upham


BRANDT &KUTCHIN,P.C.Two Energy Square

4849 Greenville Ave., Suite 1300

Dallas, Texas 75206



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2. Plaintiffs-Appellees Jonathan Morgan, Doug Morgan, Robin Morgan,Michael Shell, Kevin Shell, Jim Shell, Sunny Shell, Michaela Wade, Malcolm

Wade, Bailey Wade, Christine Wade, Stephanie Versher, and Sherrie Versher are

represented by:

Kelly Shackelford Paul D. Clement

Jeffrey C. Mateer Ashley C. Parrish

Hiram S. Sasser, III KING &SPALDING LLP

LIBERTY INSTITUTE 1700 Pennsylvania Avenue, N.W.

903 East 18th

, Suite 230 Washington, D.C. 20006

Plano, Texas 75204

Wm. Charles Bundren Clyde M. Siebman

WM.CHARLES BUNDREN & SIEBMAN,REYNOLDS,BURG,PHILLIPS

ASSOCIATES,P.C. &SMITH, LLP

2591 Dallas Parkway, Suite 300 300 North Travis

Dallas, Texas 75034 Sherman, Texas 75090

In the appeal styled Morgan v. Plano Independent School District, No. 08-

40707, Plaintiffs-Appellees were also represented by

Allyson N. Ho

Craig A. Stanfield

MORGAN,LEWIS &BOCKIUS, LLP

1000 Louisiana Street, Suite 4200

Houston, Texas 77002

3. Nonappealing Defendants Plano Independent School District, DougOtto, John Beasley, and Carole Griesdorf are represented by:

Richard M. Abernathy Roger Sanders

Charles J. Crawford SANDERS,OHANLONABERNATHY,ROEDER,BOYD & &MOTLEY, P.L.L.C.

JOPLIN,P.C. 111 South Travis Street



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1700 Redbud Blvd., Suite 300 Sherman, Texas 75090

McKinney, Texas 75069

4. Nonappealing Defendants Lisa Long and Suzie Snyder are, as ofSeptember 7, 2010, represented by:

Thomas P. Brandt

Joshua A. Skinner


BRANDT &KUTCHIN,P.C.

Two Energy Square

4849 Greenville Ave., Suite 1300

Dallas, Texas 75206

5. Texas Association of School Boards Risk Management Fund is therisk pool for Defendants.

/s/ Thomas P. Brandt

Thomas P. Brandt

Attorney of Record for Defendants-

Appellants Lynn Swanson and Jackie

Bomchill



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TABLE OF CONTENTS

Certificate of Interested Persons ............................................................................... iiTable of Contents ....................................................................................................... vTable of Authorities ............................................................................................... viiiJurisdictional Statement ............................................................................................. 1Issues Presented ......................................................................................................... 2Statement of the Case ................................................................................................. 3Statement of the Facts ................................................................................................ 7I. Swanson and Bomchill were following policy, not acting based on

any hostility toward religion. ........................................................................... 7A. Swansons and Bomchills acted not out of any personalhostility toward religion, but in conformity with school policy,

supervisors directions and lawyers advice. ........................................ 7B. The policy to which Swanson and Bomchill conformed sought

to restrict the distribution of religious materials in order to

avoid offending other students and parents and to avoid any

possible Establishment Clause claims. .................................................. 9II. Plaintiffs allege restrictions on religious messages at Thomas

Elementary. ....................................................................................................10A. Swanson allegedly directed teachers to restrict the distribution

of religious gifts during classroom winter-break parties. ...................10B. Swanson was concerned about the alleged banning of Merry

Christmas messages on greeting cards and the alleged banningof the colors red and green. .................................................................14

III. Plaintiffs allege restrictions on religious messages at RasorElementary. ....................................................................................................15A. Bomchill allegedly restricted the distribution of religious drama

tickets in order to avoid offending other students. ..............................15B. Bomchill allegedly restricted the distribution to students of

pencils containing a religious imprint. ................................................16Summary of the Argument .......................................................................................20Standard of Review ..................................................................................................28



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Argument..................................................................................................................29I. The alleged conduct of Swanson and Bomchill is similar to conduct

that courts have permitted and even required. ...............................................29A. Federal courts have permitted and even required greater

restrictions on speech in elementary schools, particularly whenthat speech is religious or is directed at elementary school

students. ...............................................................................................301. Numerous courts, including five federal courts of

appeals, have upheld content-based restrictions on speech

in elementary schools without a showing that the speech

was disruptive. ..........................................................................302. Three federal courts of appeals have upheld content-

based restrictions on speech even in high schools without

a showing that the speech was disruptive. ................................34B. It is unclear whether or to what extent the Free Speech Clause

protects affirmative student speech in elementary schoolsespecially if the speech is religious. ....................................................351. Elementary school events are pervasively school-

sponsored.................................................................................372. Elementary school students are less likely to perceive the

difference between distribution by school officials and

distribution by third-parties during school events. ...................403. Avoiding conflict and avoiding the possibility of an

Establishment Clause violation are legitimate,

pedagogical purposes in elementary schools. ...........................41II. Neither the Supreme Court nor this Court has clearly established that

Swansons and Bomchills alleged conduct would violate Plaintiffsrights. .............................................................................................................42A. The alleged conduct must be examined in light of the specific

context of the case, not as a broad general proposition. .....................43B. The cases relied upon by Plaintiffs and the district court do not

clearly establish a First Amendment right in the specific context

of this case. ..........................................................................................461. Prohibiting public schools from compelling students to

swear the pledge of allegiance does not clearly establish



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the law in the specific context of this case................................472. Prohibiting public schools from preventing high school

students from wearing arm bands absent an anticipated

disturbance does not clearly establish the law in the

specific context of this case. .....................................................503. Case law relating to restrictions on religious speech in

limited public forums does not clearly establish the law

in the specific context of this case. ...........................................53III. The Court should tread lightly lest it unnecessarily interfere with the

trust imparted by parents to elementary schools. ..........................................55Conclusion ...............................................................................................................58Certificate of Service ...............................................................................................60Certificate of Complaince ........................................................................................61



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TABLE OF AUTHORITIES

CasesAshcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937 (2009) ...................................... 28, 45

Baxter v. Vigo County Sch. Corp., 26 F.3d 728 (7th Cir. 1994) ................. 31, 36, 51Bd. of Educ. v. Mergens, 496 U.S. 225 (1990) ........................................................48

Bd. of Educ. v. Pico, 457 U.S. 853 (1982) .................................................. 47, 55, 56

Bell v. Little Axe Indep. Sch. Dist., 766 F.2d 1391 (10th Cir. 1985) ................ 30, 41

Brandt v. Bd. of Educ. of City of Chicago, 480 F.3d 460 (7th Cir.),

cert. denied, 128 S. Ct. 441 (2007) ................................................................36

Brosseau v. Haugen, 543 U.S. 194 (2004) ............................................. 2, 24, 26, 43

Brown v. Miller, 519 F.3d 231 (5th Cir. 2008) ........................................................28

Burnside v. Byars, 363 F.2d 744 (5th Cir. 1996) .....................................................57Busch v. Marple-Newtown Sch. Dist., 567 F.3d 89 (3d Cir. 2009),

cert. denied, 130 S. Ct. 1137 (2010) ................................................. 32, 33, 55

C.H. v. Oliva, 990 F. Supp. 341 (D.N.J. 1997), affd in part by anequally divided court, affd in part on other grounds, 226 F.3d198 (3d Cir. 2000) (en banc) .........................................................................31

Caudillo v. Lubbock Indep. Sch. Dist., 311 F. Supp. 2d 550 (N.D. Tex.

2004) ..............................................................................................................34

Chiras v. Miller, No. 3:03-CV-2651, 2004 U.S. Dist. LEXIS 14177

(N.D. Tex. 2004), affd on other grounds, 432 F.3d 606 (5thCir. 2005) .......................................................................................................34

Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330 (5th Cir. 2001) ...............................53

Choose Life Ill., Inc. v. White, 547 F.3d 853 (7th Cir. 2008) ..................................45

Culbertson v. Oakridge Sch. Dist. No. 76, 258 F.3d 1061 (9th Cir.

2001) ..............................................................................................................53

Curry v. Hensinger, 513 F.3d 570 (6th Cir.), cert. denied, 129 S. Ct.

725 (2008) ......................................................................................... 32, 42, 49

DeNooyer v. Livonia Pub. Schs., 799 F. Supp. 744 (E.D. Mich. 1992) ..................31

Duran v. Nitsche, 780 F. Supp. 1048 (E.D. Pa. 1991), vacated by, 972

F.2d 1331 (3d Cir. 1992) ...............................................................................30

Edwards v. Aguillard, 482 U.S. 578 (1987) ..................................................... 27, 57

Evans-Marshall v. Bd. of Educ., 428 F.3d 223 (6th Cir. 2005) ...............................58

Fleming v. Jefferson County Sch. Dist. R-1, 298 F.3d 918 (10th Cir.



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2002) ....................................................................................................... 34, 35

Gentilello v. Rege, 627 F.3d 540 (5th Cir. 2010).............................................. 28, 45

Good News Club v. Milford Central School, 533 U.S. 98 (2001) ........ 25, 47, 53, 54

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) ......................................35

Hernandez ex rel. Hernandez v. Tex. Dept of Protective & Reg.Servs., 380 F.3d 872 (5th Cir. 2004) .............................................................21

Hill v. Colorado, 530 U.S. 703 (2000) ....................................................................45

Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004) ...........................................47

Hope v. Pelzer, 536 U.S. 730 (2002) .......................................................................44

Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005).........................................................52

Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203 (1948) ..............................57

Madrid v. Anthony, 510 F. Supp. 2d 425 (S.D. Tex. 2007) .....................................34

Malley v. Briggs, 475 U.S. 335 (1986) ....................................................................22Mitchell v. Forsyth, 472 U.S. 511 (1985) .................................................................. 1

Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740 (5th Cir. 2009) ......................4, 37

Morgan v. Swanson, 610 F.3d 877 (5th Cir. 2010) ................................................... 6

Morgan v. Swanson, 627 F.3d 170 (5th Cir. 2010) ......................................... passim

Morgan v. Swanson, 628 F.3d 705 (5th Cir. 2010) (en banc) ...............................1, 6

Morse v. Frederick, 551 U.S. 393 (2007) ........................................................ passim

Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530 (7th Cir. 1996) ........... 36, 52, 57

Nurre v. Whitehead, 130 S. Ct. 1937 (2010) .................................................... 24, 35Nurre v. Whitehead, 580 F.3d 1087 (9th Cir. 2009), cert. denied, 130

S. Ct. 1937 (2010) ....................................................................... 22, 23, 34, 46

Nuxoll v. India Prairie Sch. Dist. #204, 523 F.3d 668 (7th Cir. 2008) ...................36

Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009) ............................ passim

Peck v. Upshur County Bd. of Educ., 155 F.3d 274 (4th Cir. 1998) .......................31

Phillips v. Oxford Separate Mun. Sch. Dist., 314 F. Supp. 2d 643

(N.D. Miss. 2003) ..........................................................................................34

Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975).........................................................48Poling v. Murphy, 872 F.2d 757 (6th Cir. 1989) .....................................................34

Pounds v. Katy Indep. Sch. Dist., 730 F. Supp. 2d 636 (S.D. Tex.

2010) ..............................................................................................................20

Roark v. South Iron R-1 Sch. Dist., 573 F.3d 556 (8th Cir. 2009). .........................40

Roe v. Tangipahoa Parish Sch. Bd., No. 07-2908, 2008 U.S. Dist.



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LEXIS 32793 (E.D. La. 2008) ................................................................ 31, 32

Rosenberger v. Univ. of Va., 515 U.S. 819 (1995) ..................................... 21, 44, 45

Rusk v. Crestview Local Sch. Dist., 379 F.3d 418 (6th Cir. 2004) ..........................54

S.G. v. Sayreville Bd. of Educ., 333 F.3d 417, 423 (2003) ................... 32, 37, 38, 51

Safford Unified Sch. Dist. v. Redding, __ U.S. __, 129 S. Ct. 2633(2009) ............................................................................................ 2, 26, 47, 53

Sapp v. Renfroe, 511 F.2d 172 (5th Cir. 1975) ........................................................48

Saucier v. Katz, 553 U.S. 194 (2001) ..................................................................4, 47

Scott v. Harris, 550 U.S. 372 (2007) .......................................................................28

Spence v. Bailey, 465 F.2d 797 (6th Cir. 1972) .......................................................49

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) ... 25, 34, 47, 50

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ...................... 25, 46, 47

Walker-Serrano v. Leonard, 325 F.3d 412 (3d Cir. 2003) .............................. passimWalz v. Egg Harbor Township Bd. of Educ., 342 F.3d 271 (3d Cir.

2003) ...................................................................................................... passim

Weise v. Casper, 593 F.3d 1163 (10th Cir. 2010) ...................................................45

Wilson v. Layne, 526 U.S. 618 (1999) .....................................................................24

Statutes28 U.S.C. 1291 ........................................................................................................ 1

28 U.S.C. 1331 ........................................................................................................ 1

28 U.S.C. 1367 ........................................................................................................ 1TEX.EDUC.CODE 25.151 et seq. .........................................................................33

Other AuthoritiesJohn E. Taylor, Tinker and Viewpoint Discrimination, 77 UMKCL.

REV. 569 (2009) .............................................................................................45

JOHN GIBSON, THE WAR ON CHRISTMAS:HOW THE LIBERAL PLOT TO

BAN THE SACRED CHRISTIAN HOLIDAY IS WORSE THAN YOU

THOUGHT (Sentinel 2005) ................................................................................ 7

Kristi L. Bowman, The Civil Rights Roots ofTinkers DisruptionTests, 58 AM.U.L.REV. 1129 (2009) ............................................................35

Melissa Rogers, The Texas Religious Viewpoints Antidiscrimination

Act and the Establishment Clause, 42 U.C. Davis L. Rev. 939

(2009) .............................................................................................................33

Op. Tex. Atty. Gen. GA-0609 (2008) ......................................................................33



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Speech Gov. Perrys Remarks at the Signing of the School

Childrens Religious Liberties Act - Sugar Land, August 14,2007 ...............................................................................................................33

Rules5TH CIR.R. 28.2.1 ..................................................................................................... iiFED.R.APP.P. 32 .....................................................................................................61



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JURISDICTIONAL STATEMENT

The district court had jurisdiction pursuant to 28 U.S.C. 1331 and 1367.

This Court has jurisdiction pursuant to 28 U.S.C. 1291 and the collateral order

doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Appellants appealed

from the denial of their motion to dismiss based on qualified immunity. R.E.560,

687, 689.1

After the panel decision, this Court granted rehearing en banc. 628 F.3d

705 (December 17, 2010).

1The record on appeal is cited as R.__. The supplemental record is cited as S.R.__. The

USCA5 designation is omitted. The record excerpts are cited as R.E.__. The supplementalrecord docket sheet is cited as R.E.S.__.



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ISSUES PRESENTED

Two elementary school principals, Lynn Swanson and

Jackie Bomchill, are accused of having restricted,

pursuant to policy, the distribution of non-curricular

materials to elementary school students at school, basedon the religious content of the materials. The central

issue in this appeal is whether Swanson and Bomchill are

entitled to qualified immunity because their alleged

conduct did not violate clearly established law. The three

main sub-issues are:

1. Whether the district court erred by failing toconsider decisions from other circuits when

conducting the clearly established inquiry.

Pearson v. Callahan, 555 U.S. 223, 129 S. Ct.

808, 822-23 (2009).

2. Whether the district court erred by failing toconsider the clearly established inquiry in light

of the specific context of the case, rather than as

a broad general proposition. Brosseau v.

Haugen, 543 U.S. 194, 198 (2004); Safford

Unified Sch. Dist. v. Redding, __ U.S. __, 129

S. Ct. 2633, 2644 (2009).

3. Whether the First Amendment is violated byrestrictions on the distribution of non-curricular

materials to elementary school students, based

on the religious content of those materials.



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STATEMENT OF THE CASE

Plaintiffs2 brought suit against Plano Independent School District (Plano

ISD) and various school employees, including Lynn Swanson (Swanson) and

Jackie Bomchill (Bomchill), on December 15, 2004. R.36.3

That first day of

litigation witnessed nearly 400 pages of pleadings filed.4

The original complaint

was brought on behalf of ten plaintiffs against seven defendants and contained

seven causes of action, requests for declaratory and injunctive relief, actual and

punitive damages and attorneys fees. R.36. Plaintiffs also brought an

Establishment Clause claim in which they claimed that the schools policies

create an excessive entanglement with religion. R.178 [10.6].

After more than six years of litigation, the issues have narrowed

considerably. There are fewer parties, fewer relevant factual allegations, and fewer

issues to resolve. Although Plaintiffs originally brought claims on behalf of both

parents and students (R.1600 [2d Amend. Compl. 6.313 and 6.315]), they have

since waived all parental claims. R.3541-42. The last six years of litigation have

witnessed the dismissal of three of the individual defendants Superintendent Dr.

2 The plaintiffs in the case at bar are Jonathan, Doug and Robin Morgan (the Morgans),

Michael, Kevin, Jim and Sunny Shell (the Shells), Michaela, Christine, Bailey and MalcolmWade (the Wades), and Stephanie M. and Sherrie Versher (the Vershers) (jointly,

Plaintiffs).

3The current live pleading is Plaintiffs Second Amended Complaint. R.1530.

4 188 pages comprised the complaint and 198 pages comprised the application for a temporary

restraining order.



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Doug Otto, Assistant Superintendent Carole Greisdorf and Security Police

Specialist John Beasleyall on the basis of qualified immunity. R.2882 and 3238.

In this appeal, there are fewer factual allegations for this Court to consider because

this appeal only involves events that occurred at Thomas Elementary (where

Swanson was principal) and Rasor Elementary (where Bomchill was principal).

R.687 and 1540 [2d Amend. Compl. 2.15 and 2.19]. Finally, this Court and the

lower court have already upheld the facial constitutionality of Plano ISD policies

restricting student-to-student distribution of non-curricular materials that were at

issue in this litigation. Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740 (5th Cir.

2009); Mag. J. Rpt. & Rec. (September 3, 2010), Civil Action No. 4:04-CV-447

(E.D. Tex.).

Relying on Morse v. Frederick, 551 U.S. 393 (2007), as well as a host of

other cases, Swanson and Bomchill filed their motion to dismiss based on qualified

immunity. R.3549; R.3790 (response) and 3835 (reply). At that time, the rigid

order of battle rule established in Saucier v. Katz, 553 U.S. 194 (2001), governed.

This rule, not modified until Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808

(2009), required Swanson and Bomchill to address the underlying constitutional

question first, even though that issue is much more difficult than the issue

involving clearly established law. Obedient to the requirements of Saucier,

Swanson and Bomchill argued first that the First Amendment does not apply to



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restrictions on the distribution of non-curricular materials by elementary school

students to their classmates during the school day and, second, that the law was not

clearly established.

The magistrate judge recommended denial of Swansons and Bomchills

motion (S.R.103), and Swanson and Bomchill filed timely objections. S.R.122 and

232; S.R.347 (response) and 430 (reply).

Before the district court had ruled on Swansons and Bomchills objections,

the Supreme Court issued Pearson, emphasizing: (1) that public officials are

entitled to rely on existing lower court cases without facing personal liability for

their actions even if those cases come from other circuits or states, and (2) that the

law is not clearly established when a split develops afterthe events that gave rise

to the lawsuit. Id. at 822-23. Swanson and Bomchill filed a supplement to their

objections, bringing Pearson to the attention of the court. S.R.497; S.R.545

(response).

The magistrate withdrew his earlier report (S.R.559) and issued a revised

report, still recommending that the motion be denied. See R.E.560. Swanson and

Bomchill filed objections to the revised report. S.R.579; S.R.642 (response). The

district court adopted the magistrates revised report (R.E.687 (March 30, 2009))

and Appellants filed their notice of appeal. R.E.689 (March 31, 2009).



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A panel of this Court affirmed the decision of the district court. Morgan v.

Swanson, 610 F.3d 877 (June 30, 2010), revising its opinion on July 1st. Swanson

and Bomchill filed a timely petition for rehearing en banc. The panel issued an

amended opinion. 627 F.3d 170 (November 29). This Court granted rehearing en

banc. 628 F.3d 705 (December 17).



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out of a personal animosity toward religion. Plaintiffs do not allege that Swanson

or Bomchill acted from any personal hostility toward religion7; only that they were

acting pursuant to Plano ISD policy and supervisors instructions. R.1543 [3.10].8

The school districts lawyers were advising the supervisors. R.1592 [6.266].

Plaintiffs allege that Swanson and Bomchill were poorly trained. R.1536 [1.13];

1546 [5.16].9

Plaintiffs allege that the motivation behind the direction and

training given to Swanson and Bomchill was that students in elementary schools

7Plaintiffs complaint generally alleges viewpoint discrimination, a conclusory statement open

to varying interpretations. Swanson and Bomchill have consistently interpreted Plaintiffsvague allegation of viewpoint discrimination in accordance with the factual allegations in

Plaintiffs complaint that Swanson and Bomchill, in accordance with Plano ISD policy and their

supervisors instructions, restricted the distribution of religious materials and were motivated by

concern that the religious materials might offend other students and their parents or might causea violation of the Establishment Clause. See, e.g., R.258 [C. Wade Aff. 60] and 288 and 291 [D.

Morgan Aff. 54 and 63]. In response to Swansons and Bomchills petition for rehearing,Plaintiffs allege that Swanson and Bomchill restricted religious speech because they disagreed

with Plaintiffs viewpoint. Resp. to Pet., at 13. The factual allegations, however, do not support

this new claim that Swanson or Bomchill acted out of ill will or animus toward or disagreementwith religion or Christianity. Plaintiffs appear to be attempting to inflame the Court by

introducing new allegations of religious hostility, which are not part of Plaintiffs complaint andare not part of this case.

8 This allegation is repeated in at least thirty-three (33) separate paragraphs of Plaintiffs

complaint. Id. [3.11]; 1545 [5.9-.10]; 1554 [6.75]; 1558-60 [6.100-.102, 6.107, 6.112];1579 [6.208]; 1582-83 [6.217-.220]; 1585-86 [6.229, 6.231, 6.234]; 1598-99 [6.300-.305,

6.309]; 1601-03 [6.325, 6.330, 6.337]; 1615 [6.403]; 1620-23 [6.438, 6.446, 6.452-.453].

Nowhere in Plaintiffs complaint is there a single, fact-specific allegation which indicates any

anti-religious animus on the part of Swanson and Bomchill.

9Plaintiffs complaint is that Swanson and Bomchill were poorly trained principals who werebeing directed by uninformed supervisors who were advised by incompetent lawyers.



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constitute a captive audience.See, e.g., R.1569 and 1571-72 [6.162, 6.171 and

6.175].10

B. The policy to which Swanson and Bomchill conformed sought torestrict the distribution of religious materials in order to avoid

offending other students and parents and to avoid any possible

Establishment Clause claims.

The allegations indicate that the Plano ISD officials, especially the upper

administration (Swansons and Bomchills supervisors11), directed Swanson and

Bomchill out of a concern that the other students constituted a captive audience

and that permitting the distributions might constitute a Constitutional violation.

R.1569 and 1571-72 [6.162, 6.171 and 6.175] (captive audience); R.1658

[Exh. 6]. Counsel for Plaintiffs, Mr. Shackelford, conceded this when he

characterized the school officials conduct as based on a mistaken belief that

exclusion of religious materials is required to comply with the Establishment

Clause. R.1658 [Exh. 6]. As Judge Brown noted during the temporary restraining

order hearing at the commencement of this litigation, Ive had several 1st

Amendment cases involving the Plano School District in the past. And I know

10

Even when alleging their entitlement to punitive damages, Plaintiffs never allege anyintentional misconduct, hostility, malice, ill will or animosity toward religion in general or

Christianity in particular. R.1636-37 [17.4-17.5]. Plaintiffs instead merely allege in aconclusory manner that the individual defendants acted with reckless and callous indifference to

the lawful and constitutionally protected rights of Plaintiffs.Id.

11 Swansons and Bomchills supervisors, Superintendent Doug Otto and Assistant

Superintendent Carole Griesdorf, were granted qualified immunity. R.2882 and 3238.



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they try to follow the law, but thats not always easy. R. [TRO Hearing

Transcript, pp. 22 and 41].

As alleged, this case is about confusion regarding the interplay between the

courts Establishment Clause jurisprudence and the special role that public schools

play in the education of elementary school children. Swanson and Bomchill were

obedient employees, not protagonists in an anti-Christian campaign. If the War

on Christmas exists, Lynn Swanson and Jackie Bomchill are civilians caught in

the cross-fire.

II. PLAINTIFFS ALLEGE RESTRICTIONS ON RELIGIOUS MESSAGES AT THOMASELEMENTARY.

A. Swanson allegedly directed teachers to restrict the distribution ofreligious gifts during classroom winter-break parties.

The Morgans and the Wades allege that from 2001 to 2003, Swanson,

principal of Thomas Elementary, prevented Plaintiffs from distributing religious

items in gift bags at the schools December winter-break parties, but permitted

students to distribute non-religious items.12

Plaintiffs allege that, before 2001, students at Thomas Elementary were

permitted to give gift bags to their classmates at the December winter-break party.

R.1553 and 1561 [6.65-6.67 and 6.115]. The Wades allege that in December

12Swanson is alleged to have taken action only regarding activities in the school during the

school day. With regard to Bomchill, all but one of her actions is alleged to have taken place inthe school during the school day. The only exception with respect to Bomchill involved the

supervision of children as they were leaving school at the end of the school day.



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R.1584 [6.227]. Swanson allegedly called them on December 8, 2003, and

verified that her understanding of the policy had been confirmed by the

administration. R.1585-86 [6.230-6.234].

After their meeting with Swanson, the Morgans sent another email to

Griesdorf. R.1586-87 [6.235]. Griesdorfconfirmed Swansons understanding of

the policy, and stated that students could not distribute anything of a religious

nature to their classmates during the winter-break parties or at any time while on

school property. R.1587 [6.237].

After receipt of Griesdorfs email, Plaintiffs, through their attorney, Mr.

Shackelford, sent a demand letter to Swanson. R.1591-92 [6.264]. In the letter,

Shackelford sought to inform her that, in his opinion, the Constitution precluded

the restrictions on Jonathan Morgans distribution of religious materials during the

winter-break parties. R.1656-57 [Exh. 6]. Shackelford admitted that actions to

suppress Christmas celebrations demonstrate that many school officials mistakenly

believe that allowing seasonal religious expression would violate the

Establishment Clause. R.1658 [Exh. 6].

Although Shackelfords letter was addressed to Swanson, the response to the

letter came from the school districts attorney, Mr. Richard Abernathy, who

explained why Plano ISD did not believe that the restrictions at Thomas

Elementary violated the Constitution. Abernathy explained that the holiday party



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at issue is a classroom activity that has a clearly defined curricular purpose to teach

social skills and respect for others in a festive setting. This activity is highly

structured, supervised and regulated. R.215 [Orig. Compl., Exh. 7].13

He

explained that the Third Circuit had recently re-affirmed,

under almost identical facts to those present here, that a

schools restrictions on an elementary school students

distribution of candy canes and pencils containing a

religious message during a classroom holiday party did

not violate the First Amendment. Walz v. Egg Harbor

Township Board of Edu., 342 F.3d 271 (3d Cir. 2003).

Id. Shackelford did not respond to Abernathys letter.

On the day of the December 2003 winter-break party, Jonathan Morgan

attempted to bring and distribute the candy canes with the attached religious

message. R.1594-95 [6.282-6.286]. Jonathan, and his father, were told that

Jonathan could distribute his gift bags on the information table in the school library

or he could distribute them on a public sidewalk or off school property, but not in

the classroom. R.1596 [6.289].

B. Swanson was concerned about the alleged banning of MerryChristmas messages on greeting cards and the alleged banning of

the colors red and green.

Swansons actions indicate that she was attempting to adhere to Plano ISD

policy and that she was concerned about allegations that religious messages or

13 Exhibit 7 to Plaintiffs Second Amended Complaint appears to have been misplaced. The

citation is to the copy attached to Plaintiffs Original Complaint.



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to Bomchill for prior review, as required by Plano ISD policy. R.1610 [6.372];

R.412 [Plano ISD Policy FNAA (Local)].16

While at school, Stephanie spoke with various classmates about the religious

drama and passed out tickets to those students who expressed an interest in the

drama. R.1609 [2d Amend. Compl. 6.371]. The Vershers allege that, when

Bomchill spoke with Sherrie Versher about the drama tickets, Bomchill indicated

that the tickets could not be distributed because other students might disagree with

the Christian viewpoint and complain. R.1614 [6.396]. Bomchill did not prohibit

Stephanie from speaking to her classmates about the drama while at school nor did

Bomchill prohibit Stephanie from distributing the tickets off campus.

B. Bomchill allegedly restricted the distribution to students of pencilscontaining a religious imprint.

The Vershers allege that on January 16, 2004, Bomchill prevented Stephanie

Versher from distributing religious items (pencils with a religious message) at her

half-birthday party in the school cafeteria and in front of the school, on school

property at the end of the school day. See R.1610-1623 [6.375-6.453]. The

Vershers allege that Bomchill permitted the distribution of non-religious items at

birthday parties. See, e.g., R.1611 [6.379]. Neither Stephanie nor her mother,

Sherrie Versher, nor their attorneys attempted to present the pencils to Bomchill

16The requirement of prior submission has been declared constitutional by the magistrate. Mag.

J. Rpt. & Rec. (September 3, 2010), Civil Action No. 4:04-CV-447 (E.D. Tex.). The policy also

provides an appeal process which Plaintiffs did not use. R.412.



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for review until just before the start of the party. R.1612 [6.388-6.389]. Plano

ISD policy required that materials be submitted for review at least three days prior

to the proposed date of distribution. See R.412 [Plano ISD Policy FNAA

(Local)].17

On the day of the party, Sherrie Versher took the brownies and two sets of

pencils (one set having a Christian imprint) to Bomchills office. R.1612 [2d

Amend. Compl. 6.389]. Before arriving at Bomchills office, Security Police

Specialist John Beasley handed Sherrie Versher a letter accusing her of distributing

material to students on school property and threatening her with legal action.

R.1613 [6.391]. After he gave her the letter, he escorted her to Bomchills office.

Id. [6.394].

Bomchill allegedly accused Sherrie Versher and her daughter of distributing

the religious drama tickets on school property in violation of Plano ISD policy and

threatened them with legal action if they did not cease violating district policy.

R.1613-14 [6.395 and 6.397]. Bomchill also allegedly stated that Stephanie

could not distribute the religious pencils during the birthday party, but could

distribute the other pencils. R.1614-15 [6.402-6.403]. In the middle of the

17The Vershers allege that Sherrie Versher attempted to meet with Bomchill the day before the

party to discuss the distribution of brownies. R.1612 [6.388]. Sherrie Versher did not attempt to

meet with Bomchill about the pencils until the day of the party, just before it was going to begin.

See R.1612-13 [6.389, 6.399 and 6.412-14]. The panel mistakenly asserts that Sherrie Versherattempted to meet with Bomchill the day before to discuss the pencils. See Morgan, 627 F.3d at

174.



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discussion, Sherrie Versher stepped into the hallway and called her attorney to

discuss legal restrictions that could be placed on the distribution of the religious

pencils. R.1615 [6.406]. After consulting with her attorney, Sherrie Versher

expressed no further complaint. See R.1615-16 [6.407-6.411]. As she left the

school office, Versher thought out loud to herself Satan is in the building.

R.1616 [6.413].

Sherrie Versher then went to the birthday party in the cafeteria where

Stephanie passed out the other pencils. R.1616-17 [6.414-6.419]. After the party

was over, Sherrie Versher was escorted from the building by Beasley who

allegedly falsely accused her of creating a disturbance. R.1617 [6.421].18

Plaintiffs allege that two City of Plano police pulled Sherrie Versher over after she

drove away from the building and questioned her about her Satan is in the

building comment. R.1617-18 [6.422]. Plaintiffs do not allege that Bomchill had

any involvement in calling the City police.

At the end of the school day, Sherrie Versher walked to Rasor Elementary to

meet her daughters as they left school. R.1620 [6.437]. Stephanie was outside the

18The district court granted Beasley qualified immunity. R.2906-07 and 3238. The magistrate

stated, Mr. Beasley provides security for PISD, and it appears that after Ms. Versher had

audibly uttered Satan is in the building and continued to roam the halls of the elementaryschool after her daughters half birthday was completed, Mr. Beasley would be acting within his

authority to ask her to leave the building. For the safety of the students, adults should not beallowed to roam through the halls of an elementary school without permission from the school

administration. R.2905-06.



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school building on the sidewalk and lawn amid a small group of her classmates.Id.

Stephanie was distributing the religious pencils to her classmates. Id. Bomchill

stopped Stephanie and scolded her for distributing the religious pencils on school

property. Id. [6.438-6.439]. Plaintiffs allege that Bomchill had previously

approved the distribution of the pencils outside the building, but that after

school, Bomchill was claiming to have approved this distribution only off of Plano

ISD property. R.1620-21 [6.440-6.441]. An argument ensued as to Bomchills

precise instructions. R.1621 [6.442]. Sherrie Versher then left.Id.



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SUMMARY OF THE ARGUMENT

This case again requires analysis of the delicate balance

that public school administrators must strike between

protecting the First Amendment right to free speech and

avoiding endorsing religion in violation of theEstablishment Clause. The many cases and the large

body of literature on this set of issues demonstrate the

lack of adequate guidance to enable teachers and

principals to determine whether the decisions they make

comply with constitutional standards. [D]ecisions insuch seemingly innocuous and benign activities as

elementary school parties too often lead to protractedlitigation.

Pounds v. Katy Indep. Sch. Dist., 730 F. Supp. 2d 636, 638 (S.D. Tex. 2010)

(Rosenthal, J.).

Reasonable people continue to disagree, at times fiercely, about the

appropriate role of religion in American public life. Some believe that our public

institutions, including our public elementary schools, should leave ample room for

religious speech. Others believe that governmental institutions, and especially

public schools, should be predominantly or even exclusively secular. Still others

strive to find some middle ground between these positions.

These policy disputes frequently become constitutional disputes, as many

citizens reasonably believe that their policy prescriptions are commanded by the

Constitution. In countless threatened or filed lawsuits, advocates for a more robust

protection for religious speech and practice have argued that the First Amendment

requires that such speech or practice be permitted, while proponents of a more



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secular public square have insisted that the Establishment Clause requires precisely

the opposite.

Federal judges have been similarly divided. For example, inRosenberger v.

University of Virginia, 515 U.S. 819 (1995), five Justices of the Supreme Court

asserted that the Free Speech Clause requiredthat the University of Virginia fund a

student religious publication, id. at 837, while four Justices concluded that the

Establishment Clauseprohibitedsuch funding.Id. at 864.

Caught in the middle of these policy and constitutional debates are public

officialswho are often left with little latitude for discretion, little margin for

error. When, as here, the disputes involve competing claims of permission and

prohibition, these disputes concern rival positions that leave little or no breathing

room.

Qualified immunity provides school officials with the room to make

reasonable mistakes without incurring personal, sometimes crushing, liability.

Qualified immunity, as this Court has held, gives public officials breathing space

in which to perform their duties. Hernandez ex rel. Hernandez v. Tex. Dept of

Protective & Regulatory Servs., 380 F.3d 872, 879 (5th Cir. 2004). This breathing

space is all the more vital where, as here, the public official must navigate not only

between the conflicting requirements of local policy and the First Amendment, but

also between the (sometimes) rival First Amendment values of free speech and



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materials, even where such restrictions are motivated not by any disagreement with

or animus toward the religious content, but by an effort to comply with local

school district policy and the Establishment Clause.

Swanson and Bomchill are entitled to qualified immunity because, in light of

the confusion among the federal courts regarding student speech rights, the law

was not clearly established. The panel and the district court failed to properly

analyze the precedents from other circuits because they neglected two key holdings

in Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009). First, public officials

are entitled to rely on lower court opinions from other circuits in determining what

they are permitted to do. Id. at 822-23. Second, the law is not clearly established

when the courts do not agree, even if it only became apparent that there is

confusion after the events in the case in question.Id. at 823. The district court and

the panel failed to properly consider precedents from other circuits and failed to

consider judicial opinions that were issued after the events of the case at bar.

The confusion among the courts is well illustrated by the conflict between

the panels decision and the Ninth Circuits recent decision inNurrethat a schools

restricting the performance ofAve Maria, based on its religious content, did not

violate the First Amendment. In dissenting from the denial of certiorari inNurre,

Justice Alito noted that the Nurre decision provides a basis for discriminating

against religious speech in public schools and, moreover, authorizes school



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administrators to ban any controversial student expression at any school event.

Nurre v. Whitehead, 130 S. Ct. 1937, 1940 (2010). Despite this strong

disagreement, the panel and the district court concluded that it has been clear for

over half a century that discrimination against religious speech in elementary

schools is prohibited.Morgan v. Swanson, 627 F.3d 170, 171 (5th Cir. 2010). As

the Supreme Court held over a decade ago and reaffirmed in Pearson, If judges

thus disagree on a constitutional question, it is unfair to subject [public officials] to

money damages for picking the losing side of the controversy. Wilson v. Layne,

526 U.S. 603, 618 (1999).

Moreover, Swanson and Bomchill are entitled to qualified immunity because

the decisions of the Supreme Court and this Court do not clearly establish that their

actions, in the specific context alleged, would violate Plaintiffs First Amendment

rights. Neither the Supreme Court nor this Court has ever addressed this issue, and

the decisions from other federal courts have provided confused and conflicting

answers. See, e.g., Walker-Serrano v. Leonard, 325 F.3d 412, 417-18 (3d Cir.

2003) (if third graders enjoy rights underTinker, those rights will necessarily be

very limited.). The district court and the panel erred by failing to recognize that

the clearly established inquiry must be undertaken in light of the specific

context of the case, not as a broad general proposition. Brosseau v. Haugen, 543

U.S. 194, 198 (2004).



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Relying on the Supreme Courts holdings in (1) Barnette, establishing a

right for public school students to refrain from reciting the pledge of allegiance,19

(2) Tinker, establishing a right for high school students to wear arm bands in

protest of the Vietnam War,20

and (3) Good News Club,holding that Establishment

Clause concerns arising from the presence of young children in a limited public

forum do not justify restrictions on content-based speech that is directed at their

parents,21

the district court and the panel mistakenly concluded that it has been

clear for over half a century that the First Amendment protects elementary school

students from religious-viewpoint discrimination.Morgan, 627 F.3d at 171. The

district court and panel obfuscated the critical differences between those cases and

the facts alleged here: Barnette concerned a freedom from compulsory speech, not

the freedom to affirmatively speak; Tinker concerned limited affirmative free-

speech in high schools, not elementary schools; and Good News Club concerned

the use of a facility in proximity to elementary-age children, not the First

19W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Walker-Serrano, 325 F.3d at 417.

20Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); Morse v. Frederick, 551

U.S. 393, 403-04 (2007); id. at 429 (Breyer, J., concurring) (Tinker clearly established that

school officials could not prohibit students from wearing an armband in protest of the Vietnam

War, where the conduct at issue did not materially and substantially disrupt the work anddiscipline of the school.).

21 The district court relied heavily on Good News Club v. Milford Central School, 533 U.S. 98

(2001), which held that speech may not be excluded from a limited public forum solely on the

basis of the religious nature of the speech. Id. at 105-06. As the Courts opinion makes clear,that the events occurred in a school building was incidental to the issue presented to the Supreme

Court.



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Amendment rights of such students to speak at school to other such students. The

cases relied upon by the district court and panel do not clearly establish the law in

the specific context of this case. See Brosseau, 543 U.S. at 198.

In addition, the district court and panel failed to consider the way those

supposedly clearly established precedents have been interpreted by lower courts.

In the intervening time between the district courts decision and the panels

decision, the Supreme Court held that confusion among the lower courts as to how

to interpret a decision of the Supreme Court is strong evidence that the law was not

clearly established. Safford Unified Sch. Dist. v. Redding, __ U.S. __, 129 S. Ct.

2633 (2009).

Alternatively, Swanson and Bomchill should be granted qualified immunity

because the First Amendment does not prohibit elementary school educators from

regulating the distribution of written materials to their students at school.22

Parents

expect elementary schools to teach their children the basics of reading, writing and

arithmetic; not to serve as a battleground in the debates over religion in the public

square. The district courts decision undermines the ability of elementary school

22

Plaintiffs and the panel mischaracterize Swansons and Bomchills argument as an attack onFirst Amendment speech rights for elementary school students in all contexts. This

mischaracterization is unfair and inaccurate. Even if some of the preliminary briefing in thedistrict court contained inartfully crafted descriptions of the issues, Appellants have always

focused on the specific facts of the case at bar and that the law is not clearly established. See

R.3561. Appellants have never taken the position that elementary school students have no First

Amendment rights. In fact, Appellants reliance on Establishment Clause precedents necessarilyimplies a belief that the students have some First Amendment rights.



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educators to fulfill their duty to the families who entrust the public schools with the

education of their children, but condition that trust on the understanding that the

classroom will not be used to advance views that may conflict with the private

beliefs of the student and his or her family. Edwards v. Aguillard, 482 U.S. 578,

584 (1987).

Defendants Swanson and Bomchill submit to this Court that they are

reasonable public officials and that their alleged conduct, even if mistaken, was not

so egregious as to reflect plain incompetence or knowing violation of the law.

They ask this Court to provide them ample breathing space, and ample room to

make reasonable mistakes.



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STANDARD OF REVIEW

This Court reviews de novoa district courts denial of a motion to dismiss

based on qualified immunity.Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008).

In analyzing qualified immunity, courts consider whether (1) the facts

alleged show that the public officials conduct violated a constitutional right, and

(2) the right was clearly established in light of the specific context of the case.

Scott v. Harris, 550 U.S. 372, 377 (2007). Courts may consider the second prong

(clearly established) without considering the first prong (violation of a right) if the

court grants qualified immunity. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct.

808, 818 (2009).23

To survive a motion to dismiss asserting qualified immunity, a plaintiff must

plead sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009).

The Court should begin its analysis by identifying the allegations in the complaint

that are not entitled to the assumption of truth. Id. at 1951. The Court should not

accept as true conclusory allegations, unwarranted factual inferences, or legal

conclusions. Gentilello v. Rege, 627 F.3d 540, 544(5th Cir. 2010).

23When Swanson and Bomchill filed their motion to dismiss, the Supreme Court still required

courts to determine the first prong (violation of a right) before addressing the second prong

(clearly established).Id. at 815-16.



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ARGUMENT

I. THE ALLEGED CONDUCT OF SWANSON AND BOMCHILL IS SIMILAR TOCONDUCT THAT COURTS HAVE PERMITTED AND EVEN REQUIRED.

In deciding whether the law was clearly established, courts must consider

(1) cases decided in other federal circuits and by state supreme courts and (2) cases

decided both before and after the alleged violation of that law. See Pearson v.

Callahan, 555 U.S. 223, 129 S. Ct. 808, 822-23 (2009).

The district court mistakenly held that, in analyzing whether the law is

clearly established, it is guided solely by precedent from this Circuit as well as the

Supreme Court. R.E.567. The panel mistakenly held that Swanson and Bomchill

were not entitled to rely on judicial decisions that were issued after the events of

the case at bar.Morgan v. Swanson, 627 F.3d 170, 180 n.13 (5th Cir. 2010). Both

of these holdings conflict with Pearson. 129 S. Ct. at 823.

The district courts and the panels failure to adhere to Pearson prevented

them from recognizing the confusion among the lower courts regarding student

religious speech.



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A. Federal courts have permitted and even required greaterrestrictions on speech in elementary schools, particularly when

that speech is religious or is directed at elementary school

students.

1. Numerous courts, including five federal courts of appeals,have upheld content-based restrictions on speech in

elementary schools without a showing that the speech was

disruptive.

Numerous federal courts have upheldand even imposedrestrictions on

speech in elementary school based on the content of the speech without requiring

the school to show that the speech was disruptive. The Third, Fourth, Sixth,

Seventh, and Tenth Circuits, and various district courts have upheld viewpoint and

other content-based restrictions in elementary schools.

From 1970 to at least 2008, a federal court in Houston prohibited all

Houston ISD employees from allowing the distribution of religious

materials in the schools. Order (December 28, 1970) at 3-4, Guild v.

Houston Indep. Sch. Dist., No. 70-H-1102 (S.D. Tex.).

The Tenth Circuit upheld an injunction prohibiting the school district

from allowing elementary school students to have religious meetings

during school hours. The court cited the Establishment Clause and

questioned whether, in light of the circumscribed nature of elementary

education, an elementary school could have a limited public forum at

all.Bell v. Little Axe Indep. Sch. Dist., 766 F.2d 1391, 1401-02, 1404-

05 and 1407 (10th Cir. 1985).

A federal district court in Pennsylvania held that the school officials

did not violate a fifth-grade students free speech rights when herteacher refused to permit her to give an oral presentation to her class

about her belief in God. Duran v. Nitsche, 780 F. Supp. 1048 (E.D.

Pa. 1991), vacated by, 972 F.2d 1331 (3d Cir. 1992).



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A federal district court in Michigan upheld a campus principals

decision to prohibit a second-grade student from playing, during a

show-and-tell activity, a video of herself singing a religious song. The

court concluded that concern about the impact of religious messages

on a second-grade audience was a legitimate, pedagogical concern.DeNooyer v. Livonia Pub. Schs., 799 F. Supp. 744 (E.D. Mich. 1992).

The Seventh Circuit granted qualified immunity to a campus principal

accused of disciplining an elementary school student based on the

non-disruptive messages on her t-shirts because it was not clearly

established whether, or to what extent, the speech of elementary

school students is protected by the First Amendment. Baxter v. Vigo

County Sch. Corp., 26 F.3d 728, 738 (7th Cir. 1994).

The Fourth Circuit concluded that the Supreme Court would likelyhold that a school district had violated the Establishment Clause if it

permitted a distribution table that contains Bibles and other religious

material in elementary schools. Judge Luttig, writing for the panel

majority, explained that, because of the age of the children, a neutral

policy permitting the religious materials could be (mis)perceived as

endorsement rather than as neutrality. Peck v. Upshur County Bd. of

Educ., 155 F.3d 274, 288 n.* (4th Cir. 1998).24

The Third Circuit, by the vote of an equally divided en banc court,

upheld a school officials decision to prohibit an elementary schoolstudent from reading the Bible out loud to his classmates because of

the religious nature of the Bible, despite the fact that the reading

would have occurred during a time designated for reading out loud.

C.H. v. Oliva, 990 F. Supp. 341, 353 (D.N.J. 1997), affd in part by an

equally divided court, affd in part on other grounds, 226 F.3d 198

(3d Cir. 2000) (en banc).

The Third Circuit granted qualified immunity to a superintendent and

a principal who disciplined three elementary school students based on

24 While Peckpermitted distribution of Bibles on a distribution table in a high school, the panel

concluded that similar distribution in an elementary school would likely be held unconstitutional.

155 F.3d at 288 n.*; see also Roe v. Tangipahoa Parish Sch. Bd., No. 07-2908, 2008 U.S. Dist.LEXIS 32793, *10 (E.D. La. 2008) (concluding that elementary school distribution tables are

unconstitutional under Peck).



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the content of non-disruptive statements that they made during recess.

S.G. v. Sayreville Bd. of Educ., 333 F.3d 417, 423 (2003).

The Third Circuit upheld the decision of an elementary school

principal to prohibit a student from distributing religious pencils and

candy canes with attached religious stories, during a winter-breakparty. The court concluded that the religious nature of the speech

justified the exclusion. Walz v. Egg Harbor Township Schs., 342 F.3d

271, 278-79 (3d Cir. 2003).25

Even after the events alleged here, federal courts have upheld restrictions on

speech in elementary schools.

The Sixth Circuit upheld a campus principals decision to prohibit afifth-grade elementary school student from distributing candy canes

with an attached religious message in order to avoid offending other

students and their parents. The restrictions were permissible even if

there was no danger that the religious message might be perceived as

school-sponsored. Curry v. Hensinger, 513 F.3d 570, 576-77 and 579

(6th Cir.), cert. denied, 129 S. Ct. 725 (2008).

A federal district court in Louisiana held that an elementary school

violated the Establishment Clause by permitting the Gideons to

distribute Bibles to fifth-grade students outside the principals officeon a voluntary basis. Roe v. Tangipahoa Parish Sch. Bd., No. 07-

2908, 2008 U.S. Dist. LEXIS 32793, *10 (E.D. La. 2008).

A federal district court in Florida prohibited virtually any religious

speech or activities that were subject to oversight or review by school

officials. See Consent Decree and Order (May 6, 2009), Doe v. Sch.

Bd. of Santa Rosa County, No. 3:08-CV-361 (N.D. Fla.).

25

The panel attempted to distinguish Walz because the speech restriction in Walz was notlimited to a religious viewpoint.Morgan, 627 F.3d at 182 n.14. The holding in Walz, however,

did not depend on the absence of viewpoint or other content discrimination. As a later panel ofthe Third Circuit explained, Walz held that classroom speech promoting religion or specificreligious messages presents special problems, and that Walz is thus sound precedent for the

constitutionality of an elementary school restricting the promotion of a religious messageprecisely because of its religious character. Busch v. Marple-Newtown Sch. Dist., 567 F.3d 89,

96 and 98 (3d Cir. 2009), cert. denied, 130 S. Ct. 1137 (2010).



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The Third Circuit affirmed the decision of an elementary school

principal to prohibit a parent from reading the Bible during a show-

and-tell-type activity, despite the fact that the student selected the

reading and students were generally permitted to select any work they

wanted for the activity. Busch v. Marple-Newtown Sch. Dist., 567F.3d 89, 98 (3d Cir. 2009), cert. denied, 130 S. Ct. 1137 (2010).

Judicial decisions have caused school officials to believe they were required

to prohibit all religious speech. To clarify the law, and in direct response to the

allegations here26, the Texas Legislature enacted the Schoolchildrens Religious

Liberties Act27

(SRLA). Governor Perry, speaking in favor of the bill at a signing

ceremony, explained that administrators have labored under the same misguided

rules, limiting speech for fear of ending up in the courtroom or out of a job. 28

In light of the confusion among the federal courts as to how to apply the

First Amendment in the special circumstances of an elementary school, Swanson

and Bomchill are entitled to qualified immunity.

26 Plaintiffs Doug and Jonathan Morgan testified in favor of the SLRA and their lawyers helped

draft it. Audio of the witness testimony and statements by legislators is available on the

Legislatures website. Melissa Rogers, The Texas Religious Viewpoints Antidiscrimination Act

and the Establishment Clause, 42 U.C. Davis L. Rev. 939, 954 n.78 (2009), mentions the

involvement of Plaintiffs counsel.

27TEX.EDUC.CODE 25.151 et seq.

28

Speech Gov. Perrys Remarks at the Signing of the School Childrens Religious Liberties Act- Sugar Land, August 14, 2007, available at http://governor.state.tx.us/news/speech/5420/ (last

visited December 13, 2010). Similarly, the author, Representative Howard, stated There is

confusion in schools about student expression of religious viewpoints there are uncertain,muddied constitutional waters. The Texas Commissioner of Education has raised the question

of whether the SRLA conflicts with the federal injunction against Houston ISD in Guild. See Op.Tex. Atty. Gen. GA-0609 (2008) (declining to issue opinion on possible conflict because of on-

going federal court oversight in Guild).



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2. Three federal courts of appeals have upheld content-basedrestrictions on speech even in high schools without a

showing that the speech was disruptive.

Despite holdings that public schools have less authority to restrict speech in

high schools than in elementary schools, the Sixth29

, Ninth30

and Tenth31

Circuits,

and various district courts32

have upheld content-based restrictions on speech,

particularly religious speech, in high schools without any showing that the speech

will cause a material and substantial disruption.33

In Nurre v. Whitehead, 580 F.3d 1087 (9th Cir. 2009), cert. denied, 130 S.

Ct. 1937 (2010), the court upheld a school imposed ban on religious music during

a school-sponsored limited-public forum. As Justice Alito explained in his dissent

from the denial of certiorari, Nurre arguably provides a basis for discriminating

against religious speech and, moreover, authorizes school administrators to ban

29Poling v. Murphy, 872 F.2d 757, 759 and 764 (6th Cir. 1989).

30Nurre, 580 F.3d at 1090 and 1094.

31Fleming v. Jefferson County Sch. Dist. R-1, 298 F.3d 918, 933-34 (10th Cir. 2002).

32

Phillips v. Oxford Separate Mun. Sch. Dist., 314 F. Supp. 2d 643, 648 (N.D. Miss. 2003);Madrid v. Anthony, 510 F. Supp. 2d 425, 434 (S.D. Tex. 2007); Caudillo v. Lubbock Indep. Sch.

Dist., 311 F. Supp. 2d 550 (N.D. Tex. 2004); Chiras v. Miller, No. 3:03-CV-2651, 2004 U.S.Dist. LEXIS 14177, at *35 (N.D. Tex. 2004), affd on other grounds, 432 F.3d 606 (5th Cir.

2005).

33 Viewpoint discrimination is permitted if there is a reasonable likelihood that the speech will

cause a material and substantial disruption. Tinker, 393 U.S. at 514.



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any controversial student expression at any school event.Nurre v. Whitehead, 130

S. Ct. 1937, 1940 (2010).

In Fleming v. Jefferson County Sch. Dist. R-1, 298 F.3d 918, 933 (10th Cir.

2002), the court upheld a policy that generally permitted students to choose the

content of the message placed on a tile, but specifically prohibited religious

messages. The court concluded that school districts have a legitimate interest in

avoiding religious controversy and disruption resulting from the posting of

religious speech.Id.

Fleming and Nurre both demonstrate the enduring concern that religious

speech can undermine a schools basic educational missioneven in high schools.

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988).

B. It is unclear whether or to what extent the Free Speech Clauseprotects affirmative student speech in elementary schools

especially if the speech is religious.

Tinkerestablished certain free speech rights in the high school context.34

At

least two circuit courts of appeal have expressed doubt as to whether, or to what

extent, Tinkershould be applied in the elementary school context.

The Third Circuit concluded that, at a certain point, a school child may be so

young as to not have affirmative speech rights, [w]here that point falls is subject

34Before Tinker, it was not clear that students had any affirmative free speech rights in public

schools.Kristi L. Bowman, The Civil Rights Roots of Tinkers Disruption Tests, 58 AM.U.L.REV. 1129, 1130 (2009) (emphasis added).



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to reasonable debate. Walker-Serrano, 325 F.3d at 417. In any case,

[e]lementary school officials will undoubtedly be able to regulate muchperhaps

most of the speech that is protected in higher grades. Id. at 417-18; see also

S.G., 333 F.3d at 423.

The Seventh Circuit has expressed doubt as to whether the First Amendment

right to engage in protest demonstrations at school extends to eighth graders.

Brandt v. Bd. of Educ. of City of Chicago, 480 F.3d 460, 466 (7th Cir.), cert.

denied, 128 S. Ct. 441 (2007); see also Nuxoll v. India Prairie Sch. Dist. #204, 523

F.3d 668, 673 (7th Cir. 2008)(If the schoolchildren are very young the school

has a pretty free hand.); Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1538

(7th Cir. 1996) (Manion, J.) (The Supreme Court has not expressly considered

whether the free expression rights first announced in Tinkerextend to grade school

children.);Baxter, 26 F.3d at 738 (rejecting a free-speech claim by an elementary

school student and noting that [s]he was at least several years younge r than the

youngest student in Tinker).

Even outside these two circuits, courts have refused to require strict content-

neutrality in elementary schools, but instead have permitted or even required

content-based restrictions on speechespecially religious speech. The elementary

school situation is differentand it merits different treatment for at least three

reasons.



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1. Elementary school events are pervasively school-sponsored.

Public schools are permitted to regulate student speech during school-

sponsored or curricular events. Some courts have concluded or implied that

events at elementary schools are pervasively school-sponsored or curricular.

See, e.g., Walker-Serrano, 325 F.3d at 417-18 (on the playground during recess);

S.G., 333 F.3d at 420 (during recess). Indeed, this Court has already implicitly

held in the case at bar that the term curricular should be given a broad meaning

in the elementary school context. See Morgan v. Plano Indep. Sch. Dist., 589 F.3d

740, 747 (5th Cir. 2009) (restrictions on student speech in elementary school

hallways and cafeterias serve a legitimate educational purpose).

The events in the case at bar all occurred during what were arguably

school-sponsored times.35

Plaintiffs allege that their rights were violated by

restrictions on the distribution of religious materials during in-class winter-break

parties, in-school birthday parties, at school during the school day, and as the

students left school at the close of the school day. Walz held that in-class, winter-

35 The panel mistakenly concluded that Swanson and Bomchill did not raise this argument in

their appellate brief. Morgan, 627 F.3d at 175 n.7. Swanson and Bomchill, however, haveconsistently pointed out that it is not clearly established that the facts of Walz, where a virtually

identical winter- break party was held school-sponsored or curricular, should bedistinguished from the facts alleged in the case at bar. See, e.g., Appellants Brief, p. 43 (Even if

it is possible to distinguish Walz from the case at bar, it was not clearly established that Walz

should be distinguished.). In the context of qualified immunity, it is not Swanson and

Bomchills burden to prove that Walz is controlling; rather, it is Plaintiffs burden to demonstratethat it was clearly established that Walz does not apply.



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break parties were school-sponsored for purposes of the student speech

jurisprudence. 342 F.3d at 279-80. S.G. and Walker-Serrano permitted restrictions

on student speech during recess. Walker-Serrano, 325 F.3d at 417-18; S.G., 333

F.3d at 420. Moreover, the school-sponsored requirement has been further

expanded by the Supreme Courts decision inMorse v. Frederick, 551 U.S. 393,

401 (2007) (concluding that a school field trip to the street adjacent to the school

was school-sponsored).

The in-class winter-break parties were at least arguably school-sponsored

as that term is used in the student speech jurisprudence. The in-class winter-break

parties occurred in the classroom during the normal school day (R.1553 [2d

Amend. Compl. 6.69]), were supervised by the individual teachers (see, e.g.,

R.1554 [6.73]), organized and conducted by designated volunteer parents (R.1651

[Exh. 3]), and subject to various restrictions regarding the amount and types of

food and other materials that were distributed (R.1651 [Exh. 3] and 1669-70 [Exh.

12]). Plano ISDs attorneys wrote that the holiday party is a classroom activity

that has a clearly defined curricular purpose, and specifically noted the factual

similarity between the winter-break parties at Thomas Elementary and the winter-

break parties in Walz. R.214 [Orig. Compl., Exh. 7].

The in-class birthday parties were at least arguably school-sponsored as

that term is used in the student speech jurisprudence. The in-school birthday



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parties occurred in the classroom or cafeteria during the normal school day

(R.1611 [6.377]), were supervised by the individual teachers (cf. R.1611

[6.380]), and were subject to certain customs and practices regarding what could

be distributed during the birthday party (R.1610-11 [6.376]; see also 1612

[6.388]).

The distribution of drama tickets during the school day and the distribution

of religious pencils at the close of the school day are also arguably school-

sponsored as that term is used the student speech jurisprudence. As the Supreme

Court explained in Morse, a student cannot stand in the midst of his fellow

students, during school hours, at a school-sanctioned activity and claim he is not at

school. 551 U.S. at 401. The Supreme Court went on to explain that there

remains some question as to whether a school district can even regulate student

speech even off-campus. Id. That issue was not before the Supreme Court in

Morse, id., and is not before this Court in the case at bar.

Stephanie Versher distributed religious drama tickets to her classmates while

at school, either in class, in the hallway, in the cafeteria or at recess. R.1609-10 [2d

Amend. Compl. 6.371, 6.374-6.375]. In each context, Stephanie was undoubtedly

standing in the midst of her fellow students, during school hours, and at a school-

sanctioned activity.Morse, 551 U.S. at 401.



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In regard to the after-school distribution of religious pencils, Defendants

acknowledge that the issue is closer. Based on the factual allegations in Plaintiffs

complaint, Stephanies speech was arguably within the ambit of the schools

control. Stephanie was on school property, in front of the school building, just

after the close of the school day. R.1620-21 [6.437-6.442]. The Eighth Circuit

recently upheld a permanent injunction, premised on the Establishment Clause,

prohibiting a school district from permitting the distribution of Bibles on school

property, including at the close of the school day. Roark v. South Iron R-1 Sch.

Dist., 573 F.3d 556, 560-61 (8th Cir. 2009). In light ofWalz,Morse and cases like

Roark, it was not clearly established that the after-school distribution of religious

pencils in the case at bar could not be understood to be occurring during a school-

sponsored time.

2. Elementary school students are less likely to perceive thedifference between distribution by school officials and

distribution by third-parties during school events.

The courts have emphasized that elementary school students are less likely

to perceive the difference between distribution by school officials and distribution

by third-parties during school events. The Third Circuit explained that, in an

elementary school classroom, the line between school-endorsed speech and

merely allowable speech is blurred. Walz, 342 F.3d at 277. This blurring of the

source of the speech occurs both in the young, impressionable students as well as



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with their parents who trust the school to confine organized activities to legitimate

and pedagogically- based goals.Id. The Tenth Circuit was more emphatic:

Elementary schoolchildren are vastly more impressionable than high school or

university students and are unlikely to distinguish any difference between school

sponsorship and mere faculty supervision. As a result, the mere presence of

even one teacher would produce the same aura of school authorization and

approval. Bell, 766 F.2d at 1404-05 and 1407.

Swanson and Bomchill could have reasonably believed that their elementary

school students would perceive religious materials passed out to them during

school-sponsored events as bearing the imprimatur of school officials, particularly

since all such materials were subject to prior review by the campus principal and

were to be distributed during times that the students are under the supervision of

school officials.

3. Avoiding conflict and avoiding the possibility of anEstablishment Clause violation are legitimate, pedagogical

purposes in elementary schools.

As other courts have noted, elementary schools have a legitimate,

pedagogical purpose in seeking to limit religious speech that might offend other

students (or parents) or violat

supplemental en banc brief of appellants swanson bomchill (00387658)

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