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

This is what I wrote in June. 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. What would be the difference?

According to the panel, the motivation of the person who orders the exercise should be considered (teachers, administrators, school boards, etc.). The school requested en banc and the court refused. These are extracts from opinions regarding the topic.

[1.]Judging from Judge Ho’s agreement in denial to rehearing, en banc

A teacher in a public school punished his student for not embracing certain American views, including religion and race.

You can find many more examples across the nation. 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. Students are sometimes forced to share views that they find offensive by their faith by teachers. Some teachers force students into supporting certain political viewpoints.

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

The First Amendment prohibits the use of force to make public school students accept a certain political viewpoint. This is a clear violation of a legitimate pedagogical function. In this regard, the Supreme Court made it clear. West Virginia State Board of Education. (1943). The short version is: 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.

This principle has been repeatedly reiterated by both our circuit and other sister circuits throughout the country. 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 are able to teach. Teachers can also test. Teachers cannot force students to support a political view.

[I]It is “clearly established” that schools may require speech. Brinsdon v. McAllen Indep. Sch. Dist. (5th Cir. 2017). Students who do not respond to class questions or complete homework are safe. To confirm students’ knowledge on various subjects, teachers may test them. A teacher might ask students to create opinions showing Justices Ginsburg, Scalia’s analysis of a specific Fourth Amendment question.

However, it is not in the legitimate interest of pedagogy to force students into a certain political view or punish those who do. That would offend the First Amendment—as both our court and other circuits across the country have repeatedly recognized….

This case clearly implicates this fundamental constitutional principle. Benjie Arnold was a high school sociology teacher who required students to transcribe the Pledge to Allegiance. He also requested that they listen to Bruce Springsteen’s “Born In the U.S.A.” Arnold assigned this task to help “teach students how people sometimes recite certain things everyday out of habit and not thinking about the meaning.”

Mari Leigh Oliver (one of his students) did not desire to be part of 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.”

These sentiments are understandable to those who love the country deeply. 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]Every day, I do the same thing without even thinking about what [you]They are really saying.

Yet Arnold informed Oliver—in front of the entire class—that he would give her a grade of “zero” on the assignment. Arnold then continued his lengthy remarks to confirm that his goal here wasn’t pedagogical but personal. Arnold told the class that he was open to all beliefs, hatred, and animosity. If you could name two socialist or communist countries that you would prefer to visit, then I’ll pay my way. It’s crumbling and most of Europe has gone socialist. It could even be communism. However, if you do ever return to me you will need to pay twice the amount I spent to get you there.”

“You’re aware of the many things that I have to complain about. When it’s November, I either vote or protest in writing. These are how we do things in America. A country is at risk of falling apart if its citizens don’t assimilate. You don’t have to forget Day of the Dead or any other cultures. This doesn’t necessarily mean you should. You won’t drive on the right side of the road and Sharia laws will not be applied to you. It’s because it isn’t. This. Country. It’s happening. I am able to say more about it than you, because I live longer. It’s nearly as [if]America is assimilating with THOSE Countries.” …

A jury could conclude from the evidence (including Arnold’s remarks) that Arnold did not have a legitimate pedagogical purpose and that he was only engaging in viewpoint discrimination towards one of his students. {The dissenters argue that it’s wrong for courts to investigate a teacher’s motive. As the cases above show, courts can decide whether an alleged pedagogical purpose or “legitimate.” This is because they may be able to determine whether the stated purpose is legitimate. 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.}

Arnold may also be able to convince a jury he was trying legitimately to advance a pedagogical goal, and not to punish Oliver for his disagreements. 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]Here’s the problem [as alleged by plaintiffs]Arnold didn’t ask students to analyze or memorize important texts. 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….

Unchecked it can create a dangerous precedent. Assume a teacher in a high school. He or she prepares the “spelling” assignment. A worksheet tells the story about a person who’s gender identity and their birth gender. All of the pronouns are left out in this story. Students are instructed by the teacher to use female pronouns in order to complete that story’s blanks. Consider that one or several students is deeply offended by the teacher’s use of pronouns. Can the teacher penalize students who don’t endorse teacher’s use of pronouns, in the belief that it is only a “spelling test” to make sure that seniors high school know how to spell “she”, and “her”. Does it really matter if the offended student believes in pronouns compatible with biological sex or pronouns that are flexible enough to accommodate one’s preferences?

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. Both teachers may lie, let’s not forget. Both teachers claim these assignments are legitimate memorization and spelling. 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….

Once, our society and schools embraced this American motto: “I don’t approve of what you have to say but I will fight to stop you from saying it.” However, students and citizens are receiving the reverse message from our culture and teachers: I don’t like what you say and I will stop you 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 was joined by Judges Jones Smith, Duncan and Engelhardt.

A Fifth Circuit teacher can be sued for money damages for failing to give an in-class 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. Each finds a way for Arnold qualified immunity to be denied. It is wrong for federal judges to be involved in the policing of lesson plans by 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 or not a teacher gave a “fair warning”. [that his actions violate a constitutional right, which would strip him of qualified immunity]If you see a fixed star, it is usually a sign that your right is being evaluated at a far too general level. BarnetteStudents were required to salute and swear fealty in order to the American flag. There were also 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”)….

Problematically, and importantly, the majority of the panel affirmed the conclusion reached by the district judge regarding Arnold’s “impure motive”, which was deemed to be a dispute. For qualified immunity, however, the subjective mind of a specific defendant does not affect whether he or she is eligible for qualified immunity. We may consider subjective intent in certain circumstances, such as First Amendment claims of retaliation and race discrimination. 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 retaliationAffirmative actions must be reported. Because ofProtected speech for the plaintiff.

Motivation is irrelevant when it comes to determining whether speech has been compelled in contravention of the First Amendment. Oliver need not show Arnold that she compelled her speech in violation of Section 1. DesignedTo make her swear loyalty to America. Our inquiry does not focus on the motive of the teacher, but rather the student’s forced act. The teacher’s sincerity, rather than objectively reasonable actions of the teacher, is what will determine a student’s constitutional rights. This approach may provide Oliver some short-term benefits. She might be able to proceed with her claims in court. However, in the long term students are at risk. 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), was joined by Judges Smith Elrod Engelhardt and Wilson. Wilson also filed a separate dissension.

Public school teachers may ask students to pledge their allegiance Mexico, but they cannot make them write it down. First assignment: This is an educational and cultural exercise. Brinsdon v. McAllen Indep. Sch. Dist. (5th Cir. 2017, but the second, a compelled patriotic assertion prohibited by the First Amendment. Qualified immunity is granted to a teacher who assigns the first task, while a teacher who assigns the second assignment will be subject to a jury’s determination that he was acting for a “pedagogical purpose.” …

In other words, our law in this field is a dumpster fire. To put this matter out, we should have taken the case en banc. We could then have discussed in more detail how the First Amendment affects student speech and public school curricula. This is an important, and still developing area. For reasons that baffle me, a majority of my colleagues declines the opportunity….

[T]The panel does not believe that teacher motivations matter. BarnetteThis view is not supported by the school board. It recognized the legitimate purposes of the school board (i.e., fostering “[n]Ational Unity”), but rejected “methods for its attainment”i.e.“Compelling flag salutes and pledges” The panel refers to our BrinsdonDecision to be the final authority in weighing assignment’s “pedagogical purpose.” But Brinsdon was mistaken on that point….

Circuit Judge Andrew S. Oldham and Circuit Judge Elrod also wrote separate opinions, condemning the focus of the panel on the motives for the teacher.