                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-28-2000

C.H. v. Oliva
Precedential or Non-Precedential:

Docket 98-5061




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Recommended Citation
"C.H. v. Oliva" (2000). 2000 Decisions. Paper 177.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/177


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Filed August 28, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-5061

C.H., AS GUARDIAN AD LITEM OF Z.H., A MINOR,
AND C.H., INDIVIDUALLY
Appellant

v.

GRACE OLIVA; GAIL PRATT; PATRICK JOHNSON;
MEDFORD TOWNSHIP BOARD OF EDUCATION;
LEO KLAGHOLTZ, Commissioner of Education;
THE STATE OF NEW JERSEY
DEPARTMENT OF EDUCATION

Appeal from the United States District Court
For the District of New Jersey
(D.C. Civil No. 96-cv-02768)
District Judge: Honorable Joseph H. Rodriguez

Argued June 2, 1999

BEFORE: STAPLETON and ROTH, Circuit Judges, and
LONGOBARDI,* District Judge

Reargued En Banc February 16, 2000

BEFORE: BECKER, Chief Judge, SLOVITER, MANSMANN,
GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH,
MCKEE, RENDELL, BARRY and STAPLETON,
Circuit Judges

(Opinion filed: August 28, 2000)
_________________________________________________________________

* Honorable Joseph J. Longobardi, Senior United States District Judge
for the District of Delaware, sitting by designation.
F. Michael Daily, Jr.
Quinlan, Dunne & Daily
16 North Centre Street
Merchantville, NJ 08109-2519
 and
Eric W. Treene
Kevin J. Hasson (Argued)
The Becket Fund for Religious
 Liberty
2000 Pennsylvania Avenue, N.W.
Suite 3200
Washington, DC 20006
 Attorneys for Appellant

Betsy G. Liebman
Capehart & Scatchard
8000 Midlantic Drive
Laurel Corporate Center, Suite 300
Mount Laurel, NJ 08054
 and
Michael P. Madden (Argued)
Madden, Madden & Del Duca
108 Kings Highway East, Suite 200
P.O. Box 210
Haddonfield, NJ 08033
 and
John K. Worthington (Argued)
Office of Attorney General of
 New Jersey
Richard J. Hughes Justice Complex
Trenton, NJ 08625
 Attorneys for Appellees

Marc D. Stern
American Jewish Congress
15 East 84th Street
New York, NY 10028
 Attorney for Amicus-Appellee
American Jewish Congress

                        2
OPINION OF THE COURT

STAPLETON, Circuit Judge:

C.H., as guardian ad litem of Z.H., appeals from an order
of the District Court dismissing her complaint in this civil
rights action. The complaint alleges that the First
Amendment rights of Z.H., a minor, were violated on two
occasions: once when he was a kindergarten student and
once when he was in the first grade.1 The District Court
held, inter alia, that it had no jurisdiction over the
defendant Department of Education of the State of New
Jersey and that no constitutional violation occurred on
either occasion. It entered judgment on the pleadings in
favor of all of the defendants.

This en banc court finds itself equally divided on the
issue of whether judgment was properly entered in favor of
the defendants other than the Department of Education on
the First Amendment claim arising from the first grade
episode. Accordingly, we will affirm the District Court's
judgments in favor of those defendants on that basis
without further explication. While we agree with the District
Court that the Department of Education is immune from
suit in a federal court under the Eleventh Amendment, we
will vacate the judgment in its favor and remand with
instructions to dismiss the claims against it for lack of
jurisdiction. With respect to the other defendants, we
conclude that the complaint fails to state claims against
them arising out of the kindergarten episode. We will
remand, however, to give C.H. an opportunity to cure the
deficiencies we have identified if she is able to do so.

I.

The following facts are affirmatively alleged in the
_________________________________________________________________

1. The complaint purports to state claims under both the Free Speech
Clause and the Establishment Clause of the First Amendment. Given our
resolution of this appeal, it is unnecessary for us to distinguish in this
opinion between the two theories of liability.

                               3
complaint. In the Fall of 1994, Z.H. was a kindergarten
student at the Haines Elementary School, a public school,
in Medford, New Jersey. Defendant Pratt was the principal
of that school; defendant Johnson was the Superintendent
of Schools in the Medford School District; and defendant
Medford Township Board of Education owned and operated
the public schools in the District. Defendant Klagholtz was
the Commissioner of Education of the State of New Jersey.
He and defendant Department of Education of the State of
New Jersey are alleged to be responsible for the general
supervision of public education in the State. Defendant
Oliva was to be Z.H.'s first grade teacher in the following
year and was not involved in the relevant events in 1994.

In the spirit of the Thanksgiving holiday, Z.H.'s teacher
asked the students to make posters depicting what they
were "thankful for." Z.H. produced a poster indicating that
he was thankful for Jesus. The allegations with respect to
the remainder of the kindergarten episode are as follows:

        13. Z.H.'s poster along with those of his classmates
       were subsequently placed on display in the hallway of
       the school. Subsequently, employees of Defendant,
       Township of Medford Board of Education, removed
       Z.H.'s poster because of its religious theme.

        14. Said removal occurred on a day when Z.H.'s
       kindergarten teacher was absent. Upon her return,
       said teacher properly returned the poster to the
       hallway, although this time the poster was placed at a
       less prominent location at the end of said hallway.

        15. Both Z.H. and C.H. were made aware of the
       removal of the poster because of its religious theme.

The removal is thus twice alleged to have been motivated
by the religious theme of the poster, but that removal is
alleged to have been done by unidentified "employees of
Defendant." On the other hand, the restoration to a "less
prominent location" is attributed to Z.H.'s teacher who is
not joined as a defendant and who is not alleged to have
acted because of the poster's religious theme. None of the
defendants in the case is alleged to have participated in, or
been aware of, the decision to remove the poster or to
restore it to a "less prominent location."

                               4
II.

The Department of Education is a state agency and as
such is immune from suit in a federal court without regard
to the nature of the relief sought. See Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100-101 (1984).
Accordingly, we agree with the District Court that this suit
could not go forward against the Department of Education.
Having concluded that it was immune from suit under the
Eleventh Amendment, however, it should have dismissed
the claim against the Department for want of jurisdiction,
rather than entering judgment in its favor. See Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 63 (1996); Wheeling &
Erie Ry. Co. v. Public Utility Comm'n, 141 F.3d 88, 91 n.3
(3d Cir. 1998); Sullivan v. Barnett, 139 F.3d 158, 179 (3d
Cir. 1998).

III.

It is, of course, well established that a defendant in a civil
rights case cannot be held responsible for a constitutional
violation which he or she neither participated in nor
approved. See Robinson v. City of Pittsburgh, 120 F.3d
1286, 1293 (3d Cir. 1997); Baker v. Monroe Township, 50
F.3d 1186, 1190 (3d Cir. 1995). There is no vicarious,
respondeat superior liability under S 1983. See Monell v.
New York City Dep't of Soc. Servs., 436 U.S. 658, 694
(1978); Hopp v. City of Pittsburgh, 194 F.3d 434, 441 (3d
Cir. 1999). Moreover, a school board can be held
responsible for a constitutional violation of a teacher only if
the violation occurred as a result of a policy, custom or
practice established or approved by the board. See Monell,
436 U.S. at 694; Woodwind Estates, Ltd. v. Gretkowski, No.
99-3280, 2000 WL 223590, at *7 (3d Cir. 2000); Hopp, 194
F.3d at 441.

As we have noted, there is no allegation that Oliva, Pratt,
Johnson or the Board of Education participated in or
approved the removal or restoration decisions and the
Board of Education is not alleged to have established or
approved any policy, custom or practice. Similarly, it is not
alleged that the State Commissioner established or
approved a policy, practice or custom causally related to

                               5
the removal or restoration decisions. Rather the allegation
as to the Commissioner is that he "failed to exercise [his]
supervisory powers in a fashion which would protect the
constitutional rights of students such as Z.H." (A. 11).

As the District Court recognized, a state official who is
acting in violation of the United States Constitution can be
sued for prospective equitable relief. See Ex parte Young,
209 U.S. 123 (1908). A state official may be held
responsible under S 1983 for exercising or failing to exercise
supervisory authority, however, only if that official "has
exhibited deliberate indifference to the plight of the person
deprived." Sample v. Diedes, 885 F.2d 1099, 1118 (3d Cir.
1989). Accordingly, a plaintiff asserting a failure to
supervise claim must not only identify a specific
supervisory practice that the defendant failed to employ, he
or she must also allege "both (1) contemporaneous
knowledge of the offending incident or knowledge of a prior
pattern of similar incidents, and (2) circumstances under
which the supervisor's inaction could be found to have
communicated a message of approval." Bonenberger v.
Plymouth Township, 132 F.3d 20, 25 (3d Cir. 1997) (quoting
Colburn v. Upper Darby Township, 838 F.2d 663, 673 (3d
Cir. 1988). Here the sole allegation against the
Commissioner is that he failed to supervise in a way that
would have prevented the alleged violation of Z.H.'s First
Amendment rights. That is insufficient.

IV.

This is not a situation in which the complaint is merely
lacking in factual detail. It is a situation in which the fair
inference from the facts alleged is that the defendants did
not play any role in the challenged decisions and there is
no allegation, even conclusory, to the contrary. Accordingly,
this is a situation in which it is very likely that the Court
is being asked to resolve an important issue of
constitutional law that is a purely hypothetical one as far
as these parties are concerned.

While the removal is alleged to have been motivated by
the religious theme of the poster, it is not alleged that the
removal occurred as a result of any school policy against

                               6
the exhibition of religious material. To the contrary, the
affirmatively alleged prompt return of the poster to the
display vouches for the absence of such a policy. Also
noticeably absent from the complaint is any allegation that
the restoration to "a less prominent place" was the result of
a school policy or an authoritative directive from Principal
Pratt or Superintendent Johnson. To the contrary, C.H.'s
brief before the District Court indicates that there was no
such policy or directive and that the placement was the
product of an ad hoc "compromise" among peers. The brief
explains C.H.'s understanding that Z.H.'s "kindergarten
teacher on her own initiative returned the poster to public
display, but . . . as a compromise to those who were against
any display of the poster, agreed to place it in a less
prominent position." Plaintiff 's Brief in Opposition at 1 n.2.

We decline to address the tendered constitutional issue
under these circumstances. On the other hand, we
acknowledge that the absence of allegations of participation
was not pressed in support of the defendants' motion for
judgment on the pleadings and that, if it had been, C.H.
would undoubtedly have been given an opportunity to
amend her complaint. Moreover, we cannot rule out the
possibility that C.H. might be able to establish through
amendment that an actual case or controversy exists
between the parties. Under these circumstances, we
conclude that the prudent course is to remand this case to
the District Court with instructions to provide C.H. with an
opportunity to amend. If she is unable to allege personal
involvement in the kindergarten episode on the part of any
of the defendants, the complaint should be dismissed. If
personal involvement is alleged, the District Court should
conduct further proceedings consistent with this opinion.

We will vacate the judgment of the District Court entered
in favor of the Department of Education and will remand
with instructions to dismiss the complaint against it for
want of jurisdiction. We will affirm the judgment of the
District Court with respect to the claims against the
remaining defendants arising from the events occurring
during Z.H.'s first grade year. We will vacate the judgment
of the District Court with respect to the remaining claims
and will remand with instructions to provide C.H. an

                               7
opportunity to amend the allegations of her complaint
concerning them.

                               8
ALITO, Circuit Judge, with whom MANSMANN, Circuit
Judge, joins, dissenting:

In accordance with tradition, I will not comment on the
decision of the en banc court insofar as it affirms, by an
equally divided vote, the judgment of the District Court
regarding Zachary Hood's1 wish to read the story, "A Big
Family," to his class. I must write, however, regarding the
full court's decision with respect to Zachary's Thanksgiving
poster. Instead of confronting the First Amendment issue
that is squarely presented by that incident, the court ducks
the issue and bases its decision on a spurious procedural
ground never raised by the defendants--viz., that the
complaint does not adequately allege facts providing a basis
for holding any of the defendants responsible for the
treatment of the poster. I dissent.

I.

The incident concerning the Thanksgiving poster
occurred when Zachary was in kindergarten at the Haines
Elementary School in Medford, New Jersey. As alleged in
the complaint, this is what happened. With Thanksgiving
approaching, Zachary's teacher told the students to make
posters depicting what they were "thankful for." Zachary
drew a picture of Jesus. All of the pupils' posters, including
Zachary's, were initially hung in the hallway of the school,
but on a day when Zachary's teacher was absent, unnamed
employees of the school board removed the poster"because
of its religious theme." The next day, Zachary's teacher put
the picture back on the wall -- but this time in a less
prominent spot at the end of the hall.

The following year another, similar incident occurred
while Zachary was in Grace Oliva's first-grade class at the
same school. As a reward for achieving a certain degree of
proficiency in reading, Ms. Oliva invited students to bring
in a book to read to the class. "The only condition on the
selection was that it would be reviewed first by[Ms. Oliva]
_________________________________________________________________

1. Although the complaint identified Zachary and his mother, Carol
Hood, by initials, rather than by name, their names are used in the
plaintiff 's most recent brief, and I therefore use them in this opinion.

                               9
to insure that its length [and] complexity were appropriate
for the first grade." Zachary qualified to read a story to the
class and brought to school a book entitled The Beginner's
Bible: Timeless Children's Stories. Zachary wanted to read
the following story, called "A Big Family," which represents
an adaptation of the story of the reconciliation of Jacob and
Esau from Genesis 29:1-33:20:

       Jacob traveled far away to his uncle's house. He
       worked for his uncle taking care of sheep. While he
       was there, Jacob got married. He had twelve sons.
       Jacob's big family lived on his uncle's land for many
       years. But Jacob wanted to go back home. One day,
       Jacob packed up all his animals and his family and
       everything he had. They traveled all the way back home
       to where Esau lived. Now Jacob was afraid that Esau
       might still be angry at him. So he sent presents to
       Esau. He sent servants who said, "Please don't be
       angry anymore." But Esau wasn't angry. He ran to
       Jacob. He hugged and kissed him. He was happy to see
       his brother again.

Ms. Oliva told Zachary that he could not read this story
to the class "because of its religious content." Instead, she
permitted Zachary to read the story to her in private. Other
students, however, were allowed to read their favorite
stories to the class.

Upon learning of this incident, Zachary's mother, Carol
Hood, spoke with Ms. Oliva, who informed her that Zachary
could not read the story to the class "because it might
influence other students." Ms. Hood next spoke with Gail
Pratt, the school principal, who said that reading the story
"was the equivalent of `praying'." Noting that she had
received complaints in the past, Ms. Pratt stated that the
story "might upset Muslim, Hindu or Jewish students." She
added that there was "no place in the public school for the
reading of the Bible" and advised: " `[M]aybe you should
consider taking your child out of public school, since you
don't appear to be public school material.' " Ms. Pratt noted
that "her position was fully supported by various legal
authorities." Ms. Hood made an appointment to speak
again with Zachary's teacher, but she did not appear. Ms.
Hood's lawyer then contacted Patrick Johnson, the school

                               10
superintendent, and demanded that Zachary be allowed to
read the story to the class and that Ms. Pratt apologize for
her conduct. The superintendent did not respond.

Ms. Hood, in her individual capacity and as Zachary's
guardian ad litem, filed a two-count complaint in federal
district court. Count I alleged that Ms. Oliva, Ms. Pratt, Mr.
Johnson, and the Medford Board of Education (hereinafter
collectively "the Medford defendants") had violated
Zachary's constitutional right to freedom of expression.
Count II alleged that the New Jersey Commissioner of
Education and the New Jersey Department of Education
had aided in this violation. Count II sought an order
requiring the state to implement policies to protect students
who wish to engage in the expression of religious views.

The defendants moved for judgment on the pleadings. In
light of the putative pleading defect on which the full court
now relies in relation to the poster incident, it is important
to note the basis for the Medford defendants' motion. The
Medford defendants did not argue that there were any
formal defects in the complaint, and they certainly did not
suggest that the claim concerning the poster should be
dismissed because it did not state a basis for holding them
responsible for the treatment of the poster. On the
contrary, the Medford defendants acknowledged that
judgment on the pleadings would be proper only if"the
plaintiff could prove no set of facts which would entitle [her]
to relief." Brief in Support of Rule 12(c) Motion for
Judgment on Pleadings on Behalf of Defendants Medford
Township Board of Education, Grace Oliva, Gail Pratt and
Patrick Johnson. They also acknowledged, for purposes of
the motion, that they were responsible for the removal and
replacement of the poster, and they argued that their
conduct was fully justified. They stated:

       For purposes of the instant motion only, defendants do
       not dispute plaintiff 's contention that the temporary
       removal and subsequent relocation of plaintiff 's poster
       was related to the poster's religious theme.

Id. at 19. They continued:

       [D]efendants merely relocated the poster to another
       location in the same hallway. Plaintiff cannot

                               11
       reasonably contend that defendants inhibited religion
       by temporarily removing the poster and subsequently
       relocating it to another location in the same hallway.

Id. at 20 (emphasis added). In their reply brief in support
of their motion, the Medford defendants stated:

       [T]he Medford Defendants' temporary removal and
       almost immediate return of the poster to the hallway
       wall supports the inescapable conclusion that no such
       hostility existed.

Medford Defendant's 12(c) Reply Br. at 5 (emphasis added).

In granting the defendants' motion for judgment on the
pleadings, the District Court did not rely upon-- or even
note -- any formal defect in the complaint. On the contrary,
like the Medford defendants themselves, the District Court
accepted the fact that the Medford defendants were
responsible for the removal of the poster and its relocation
to a less conspicuous spot. The District Court stated:

       The Medford defendants concede that the poster was
       removed and relocated because it had a religious
       theme.

C.H. v. Oliva, 990 F. Supp. 341, 354 (D.N.J. 1997).
However, the Court held that the Medford defendants did
not violate Zachary's right to freedom of expression because
"relocating the poster of Jesus . . . [was] reasonably related
to legitimate pedagogical concerns." Id. at 353.

On appeal, the Medford defendants took the same
approach that they had in the District Court. They did not
assert that there were any formal defects in the complaint,
and they did not dispute, for purposes of the appeal, that
they were responsible for the treatment of the poster.
Rather, they argued that their removal and relocation of the
poster were constitutional. The thrust of their argument
was as follows:

        The educators of Z.H.'s school were correctly
       concerned about the impact of the prominent display of
       Z.H.'s poster upon their young students. Students of a
       non-Christian faith may have felt that the prominent
       display of the poster constituted a comment by the

                                12
       school on the correctness of Christianity or an
       endorsement of the Christian religion. These children
       may also have felt the prominent display of the poster
       to be a negative comment on their own religious beliefs.
       The Medford defendants should not be liable . . . for
       their concerns about the impact of Z.H.'s poster on his
       fellow classmates.

Medford Appellees' Br. at 14.

Both of the opinions issued by the panel before rehearing
en banc was granted affirmed the District Court on the
merits; neither was based upon -- or even hinted at -- any
formal defects in the complaint. The first opinion was
unpublished and disposed of the claims relating to"A Big
Family" and the poster in less than two full typewritten
pages. After the plaintiffs petitioned for rehearing en banc,
the panel granted rehearing and issued a for-publication
opinion. C.H. v. Oliva, 195 F.3d 167 (3d Cir. 1999). Like the
Medford defendants' brief, this opinion did not dispute that
the Medford defendants were responsible for the removal
and relocation of the poster to a less prominent spot. The
opinion stated that "the issue to be resolved is whether the
school's decision to temporarily remove Z.H.'s poster was
reasonably related to a legitimate pedagogical concern." Id.
at 175. In striking contrast with the position taken in the
opinion of the en banc court, the panel opinion never
disputed that the Medford defendants were responsible for
the treatment of the poster. Indeed, the for-publication
panel opinion deferred to the professional judgment of the
school officials that the temporary removal of the poster
was appropriate for pedagogical reasons! The panel wrote:

       Given the sensitivity of the issues raised by student
       religious expression, coupled with the notable
       immaturity of the students involved and the relatively
       public display of the posters in the school hallway, the
       school's temporary removal of the poster does not
       violate the First Amendment rights of the student
       artist. As we have indicated, decisions on issues of this
       kind necessarily involve fact-sensitive exercises of
       discretion by school authorities and reservation of a
       brief period for deliberation is thus a measure
       reasonably related to legitimate pedagogical concerns.

                                13
Id. (emphasis added). Plainly, the panel could not have
deferred to the professional judgment of the school
authorities if, as the full court now believes, the complaint
does not even allege that those officials had any role in the
poster's removal.

The for-publication panel opinion took a similar approach
with respect to the relocation of the poster to a less
prominent spot. The panel observed: "We decline plaintiff 's
invitation to require the District Court to review and
regulate the school's placement of its students' artwork." Id.
at 176 n.3 (emphasis added).

Following the issuance of this panel decision, the court
granted rehearing en banc and permitted the parties to
submit supplemental briefs. Once again, the Medford
defendants did not contend that the District Court's
decision regarding the poster should be affirmed on the
ground that the complaint did not adequately allege that
they were responsible for the poster's treatment. On the
contrary, they defended the treatment of the poster on the
merits, arguing as follows:

       Z.H. did not have any particular right to have his
       poster displayed in a prominent location and a
       prominent display of the poster may have the
       impermissible effect of conveying a message of
       endorsement of Christianity. The Medford Defendant's
       (sic) actions were thus reasonably related to legitimate
       pedagogical concerns, namely the concern that their
       young charges might have construed . . . the
       prominent display of Z.H.'s poster as the school's
       approval of Z.H.'s religion.

Medford Appellees' Supplemental Br. at 9.

The en banc court heard extensive oral argument. Not
one word was mentioned about the supposed failure of the
complaint to plead in sufficient detail the basis for holding
the Medford defendants liable for the removal and
relocation of the poster.

Despite all this, the full court sua sponte raises the issue
of the adequacy of the complaint and, without even
permitting the plaintiff to comment on this new issue, the

                                14
court declines to reach the merits of the appeal and instead
remands the case so that the plaintiff can seek to amend
the complaint.

II.

A. Under the liberal pleading regime of the Federal Rules
of Civil Procedure, the existing complaint is adequate.
Under Fed. R. Civ. P. 8(a)(2), a complaint must contain "a
short and plain statement of the claim showing that the
pleader is entitled to relief," and under Fed. R. Civ. P. 8(f),
"[a]ll pleadings shall be construed as to do substantial
justice." A complaint must only give "fair notice of what the
plaintiff 's claim is and the grounds upon which it rests,"
Conley v. Gibson, 355 U.S. 41, 47 (1957). "[A] complaint
should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief." Id. at 45-46; see also Scheuer v. Rhodes, 416 U.S.
232, 236 (1974).2

       [P]leadings under the rules simply may be a general
       summary of the party's position that is sufficient to
       advise the other party of the event being sued upon, to
       provide some guidance as to what was decided for
       purposes of res judicata, and to indicate whether the
       case should be tried to the court or to a jury. No more
       is demanded of the pleadings than this.

5 C. Wright & A. Miller, Federal Practice and Procedure
S 1202 at 69-70(1969)(footnote omitted).

Under these standards, the complaint in this case
adequately avers a basis for holding the Medford
defendants responsible for the treatment of the poster, i.e.,
its temporary removal and subsequent relocation to a less
conspicuous place in the hall. While I think that the
complaint adequately asserts a claim against all of the
Medford defendants, I will focus on one defendant, Gail
Pratt, the school principal. I do this because the sufficiency
_________________________________________________________________

2. This same principle governs a motion under Rule 12(c). 5A C. Wright
& A. Miller, Federal Practice and ProcedureS 1368 at 494-95 & n.34
(2000 Supp.)(citing cases).

                               15
of the complaint with respect to her is clear and because,
if that is so, the court must confront the merits of the
plaintiff 's First Amendment claim whether or not the
allegations pertaining to the other defendants are also
adequate.

The complaint in this case alleges that "employees of
Defendant, Township of Medford Board of Education,
removed [Zachary's] poster because of its religious theme"
on a day when Zachary's regular teacher was not present.
The complaint also alleges that the next day Zachary's
teacher put the poster back up on the wall, but in a less
conspicuous spot at the end of the hall. Furthermore, the
complaint avers facts from which it may be reasonably
inferred that Pratt had received complaints about religious
expression in the school (see Complaint para. 21), had
consulted "legal authorities" regarding the issue (id.), and
had developed a "position" that was not receptive to such
expression. Id. (" `[M]aybe you[Carol Hood] should consider
taking your child out of public school, since you don't
appear to be public school material.' "). In view of these
allegations, it cannot be said "beyond doubt that the
plaintiff can prove no set of facts in support of h[er] claim
which would entitle h[er] to relief." Conley v. Gibson, 355
U.S. 41, 45-46 (1957).

Pratt could be held responsible if she directed that the
poster be treated as it was or if they knew about and
acquiesced in the treatment. See, e.g. , Robinson v. City of
Pittsburgh, 120 F.3d 1286, 1293 (3d Cir. 1997); Baker v.
Monroe Twp, 50 F.3d 1186, 1190-91 (3d Cir. 1995). Pratt is
portrayed in the complaint as a person with a strong and
well-developed "position" about religious expression in her
school. A poster of Jesus was put up in the hall of her
elementary school by one of the teachers under her
supervision. On a day when this teacher was away, the
poster was taken down because of its religious content by
unidentified school board employees. Then the next day,
the regular teacher, having regained possession of the
poster, put it back on the wall, but in a less noticeable spot
than the one she had initially selected. Under modern
pleading rules, these allegations are surely sufficient to
assert a claim that Pratt knew about and acquiesced in

                                16
these sensitive events that went on over a period of days in
her own school and that most likely occasioned discussion
and, perhaps, controversy. Pratt's papers in the District
Court and on appeal make it clear that she well understood
the claim that was asserted against her, and for purposes
of her motion for judgment on the pleadings, she did not
dispute her involvement. Thus, the complaint adequately
asserted a claim against her.

B. But even if it did not, why should our court sitting en
banc reach this pleading issue? The defendants did not
move to dismiss the complaint based on a pleading defect.
The District Court did not dismiss the complaint on such a
ground. The defendants did not raise any pleading issue on
appeal. "We do not generally consider issues not raised by
the parties," Bolden v. Southeastern Pennsylvania Transp.
Auth., 953 F.2d 807, 812 (3d Cir. 1991) (en banc), and
there is no good reason for us to raise a pleading issue sua
sponte in this case. The only result of the court's approach
is likely to be delay, expense for the parties, and a waste of
judicial resources.

On remand, the plaintiff will be able to cure the putative
defect in the complaint simply by alleging that Pratt knew
about and acquiesced in the treatment of the poster and by
specifying that this allegation is "likely to have evidentiary
support after a reasonable opportunity for further
investigation or discovery." Fed. R. Civ. Proc. 11(b)(4).
Based solely on the facts already recited in the complaint,
such an allegation would unquestionably be proper.

If the plaintiff amends the complaint by adding such an
allegation, the District Court will have no basis for
dismissing the complaint on a pleading ground, and thus
the District Court will be required once again to decide
whether the complaint states a valid First Amendment
claim. The District Court has already ruled on this
question, and since our Court's disposition of the current
appeal provides no new guidance, the District Court will
presumably adhere to its prior reasoning. The plaintiff will
then be able to appeal, and the precise issue that the full
court now avoids will be back. I see no reason for this
wasteful procedure.

                               17
The Court justifies its approach as follows. According to
the Court, "[t]his is not a situation in which the complaint
is merely lacking in factual detail." Maj. Op. at 6. "It is a
situation in which the fair inference from the facts alleged
is that the defendants did not play any role in the
challenged decisions and there is no allegation, even
conclusory, to the contrary." Id. Apparently it is the Court's
belief that, on remand, the plaintiff will "very likely" be
unwilling to allege that Pratt knew about and acquiesced in
the treatment of the poster and that the claim regarding the
poster will be dismissed. This is what I understand the
Court to mean when it writes that "it is very likely that the
Court is being asked to resolve an important issue of
constitutional law that is a purely hypothetical one as far
as these parties are concerned." Id. Ifind the Court's
discussion baffling.

As previously noted, if the plaintiff and her attorneys
know no more about the treatment of the poster than is
already alleged in the complaint, they have a more than
adequate basis for adding the allegation needed to satisfy
the Court's concern. The Court seems to think, however,
that Pratt in fact did not know about and acquiesce in the
treatment of the poster, that the plaintiff and/or her
attorneys know this, and that they will accordingly be
unwilling to allege that Pratt was involved.

Nothing in the record supports the Court's apparent
belief, and there is much that points in the other direction.
As noted, Pratt has not claimed that she lacked
responsibility for the treatment of the poster. Moreover,
since the plaintiff 's attorneys are presumably familiar with
the legal standard for holding Pratt responsible, and since
they have vigorously litigated the claim against her in the
District Court and on appeal, they presumably are not
aware of facts showing that Pratt had no involvement in the
incident.

In support of its curious view, the Court cites a footnote
in a brief submitted by the plaintiff to the District Court.
The footnote states in pertinent part:

        Although not specifically stated in the pleadings,
       Plaintiffs will be prepared to show, if this matter

                                18
       proceeds to trial, that the kindergarten teacher was of
       the view that the poster in question was an extremely
       appropriate response to the assignment, that in part
       because of how well the poster had been done, it was
       given a prominent location next to the door of the
       kindergarten room, and that the kindergarten teacher
       on her own initiative returned the poster to public
       display, but that as a compromise to those who were
       against any display of the poster, agreed to place it in
       a less prominent position.

Plaintiff 's Brief in Opposition to Rule 12(c) Motion at 1 n.2
(emphasis added).

Nothing in this passage suggests that the plaintiff will be
unwilling to allege that Pratt knew about and acquiesced in
the allegedly discriminatory removal and relocation of the
poster. The passage says nothing whatsoever about the
removal of the poster. As for the replacement of the poster
in a less conspicuous spot, while the passage does say that
the new location "was a compromise to those who were
against any display of the poster," the passage does not
reveal who these opponents were. Pratt might have been
one of them. She might have insisted that the poster be re-
hung, if at all, in a less noticeable spot. Or, faced with a
dispute among her teachers, she might have brokered a
compromise to that effect. In either event, if she knew
about and acquiesced in the discriminatory treatment of
the poster because of its religious theme, she could be held
responsible.

If the Court seriously believes that the plaintiff will be
unwilling on remand to make the necessary allegation, the
Court could ask the plaintiff 's attorneys to proffer the
amendment that they would make. The Court, however, has
refused to take that step. The Court simply does not want
to confront Zachary's First Amendment claim. Whatever the
Court thinks about the validity or importance of that claim,
however, it is entitled to be treated in accordance with the
same procedural rules that we apply to the claims of other
litigants.

                               19
III.

A. I will therefore address the issue that the en banc
court evades: whether Zachary's constitutional right to
freedom of expression was violated if, as the complaint
alleges, his poster was given less favorable treatment than
it would have received had its content been secular rather
than religious.3

I would hold that discriminatory treatment of the poster
because of its "religious theme" would violate the First
Amendment. Specifically, I would hold that public school
_________________________________________________________________

3. The issue here is not, as the District Court thought, whether Zachary
had a "constitutional right to have the poster of Jesus displayed in any
particular location" or to have it "displayed prominently" in the school.
C.H. v. Oliva, 990 F.Supp. at 353, 355. The issue is whether he was
entitled to nondiscriminatory treatment. Nor is the issue, as the panel
suggested, whether the defendants were entitled to remove the poster for
"a brief period of deliberation." C.H. v. Oliva, 195 F.3d at 175. Nowhere
in the complaint -- or for that matter in the answer -- is it alleged that
the poster was removed for this reason.

Nor, at this stage, is the question whether Zachary actually "suffered
any compensable damages." Br. Amicus Curiae of the American Jewish
Congress, Anti-Defamation League and Americans United for Separation
of Church and State ("Amicus Br.") at 2. This case never progressed
beyond the pleading stage. The complaint alleged that Zachary suffered
emotional distress and anguish as a result of the defendants' actions,
Complaint para. 27, and for now, that allegation is enough. Nor is the
issue whether injunctive relief would be appropriate if a constitutional
violation is ultimately found. See Amicus Br. at 4-5. At this stage it is
sufficient that the complaint states a live claim for some form of relief
--
and it clearly does.

Nor is the issue whether Pratt or Johnson is entitled to qualified
immunity. Although this argument was asserted in the Medford
defendants' supplemental appellate brief, it was not raised in the
district
court in their motion for judgment on the pleadings, and it was not
addressed by the district court. Under these circumstances, I would not
reach the issue now. Moreover, even if we were to entertain the qualified
immunity argument at this time, we would still be required, as the first
step of our analysis, to decide whether the complaint stated a First
Amendment claim. Siegert v. Gilley, 500 U.S. 226, 231 (1991); Harlow v.
Fitzgerald, 457 U.S. 800, 102 (1982). And of course the qualified
immunity defense would not apply to the school board in its official
capacity. Owen v. City of Independence, 445 U.S. 622, 639-650 (1980).

                               20
students have the right to express religious views in class
discussion or in assigned work, provided that their
expression falls within the scope of the discussion or the
assignment and provided that the school's restriction on
expression does not satisfy strict scrutiny. This conclusion
follows from the following two propositions: first, even in a
"closed forum," governmental "viewpoint discrimination"
must satisfy strict scrutiny and, second, disfavoring speech
because of its religious nature is viewpoint discrimination.

B. Public schools are government property, and "the
Government `no less than the private owner of property,
has power to preserve the property under its control for the
use to which it is lawfully dedicated.' " Cornelius v. NAACP
Legal Defense and Education Fund, 473 U.S. 788, 800
((1985) (quoting Greer v. Spock, 424 U.S. 828, 836 (1976)).
The Supreme Court "has adopted a forum analysis as a
means of determining when the Government's interest in
limiting the use of its property to its intended purpose
outweighs the interest of those wishing to use the property
for other purposes." Id. Consequently, government's ability
to regulate speech on its own property often varies
depending on the particular "forum" involved. In a
"nonpublic forum," government may regulate expression
much more extensively than in a "public forum," whether
"traditional" or "dedicated." See, e.g., Perry Education Assn.
v. Perry Local Educators' Assn., 460 U.S. 37, 954 (1983);
Brody v. Sprang, 957 F.2d 1108, 1117 (3d Cir. 1992). Even
in a nonpublic forum, however, where the greatest
restrictions are permissible, "viewpoint discrimination" is
not allowed unless it passes the highest scrutiny. See, e.g.,
Lamb's Chapel v. Center Moriches Union Free School District,
508 U.S. 384, 394-95 (1993); Cornelius, 473 U.S. at 800;
Perry Education Ass'n, 460 U.S. at 46; Widmar v. Vincent,
454 U.S. 263 (1981); Brody, 957 F.2d at 1117.4 As Justice
_________________________________________________________________

4. There is some support in Supreme Court opinions for the proposition
that viewpoint-based restrictions are per se unconstitutional, see, e.g.,
City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984), but
other cases show that strict scrutiny applies. See, e.g., R.A.V. v. City
of
St. Paul, Minnesota, 505 U.S. 377, 392-94 (1992) (applying strict
scrutiny to a regulation banning "fighting words"); Capitol Square Review
& Advisory Bd. v. Pinette, 515 U.S. 753, 760-761 (1995) (plurality)

                               21
Brennan put it in Perry: "Viewpoint discrimination is
censorship in its purest form and government regulation
that discriminates among viewpoints threatens the
continued vitality of `free speech.' " Perry Education Assn,
460 U.S. at 62 (Brennan, J., dissenting). Indeed, even when
government is regulating a category of speech, such as
"fighting words," that could be entirely prohibited,
government may not discriminate based on viewpoint.
R.A.V. v. City of St. Paul, 505 U.S. 377, 391-96 (1992).

C. The Supreme Court has made it clear that
discrimination based on the religious character of speech is
viewpoint discrimination. In Lamb's Chapel, the Court
struck down a school district policy that permitted school
facilities to be used after school hours by a wide variety of
groups but prohibited the use of those facilities by a group
that wished to show a film series addressing various child-
rearing issues from a "Christian perspective." The Court
held that "it discriminates on the basis of viewpoint to
permit school property to be used for the presentation of all
views about family issues and child rearing except those
dealing with the subject from a religious standpoint." 508
U.S. at 393-94. Likewise, in Rosenberger v. Rector and
Visitors of the University of Virginia, 515 U.S. 819 (1995),
the Court examined university guidelines that refused to
allow a student publication, "Wide Awake," to benefit from
the "Student Activities Fund" because the publication
reflected a religious perspective. It held that such guidelines
violated the First Amendment because they discriminated
against otherwise permissible speech on the basis of
viewpoint. The Court wrote:

       It is, in a sense, something of an understatement to
       speak of religious thought and discussion as just a
       viewpoint, as distinct from a comprehensive body of
       thought. The nature of our origins and destiny and
_________________________________________________________________

(applying strict scrutiny to a restriction on religious advocacy); Texas
v.
Johnson, 491 U.S. 397, 412 (1989) (applying strict scrutiny to a law
barring flag desecration); See also Eugene Volokh, Freedom of Speech,
Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev.
2417, 2425 n.44 (1996).

                               22
       their dependence upon the existence of a divine being
       have been subjects of philosophic inquiry throughout
       human history. We conclude, nonetheless, that here,
       as in Lamb's Chapel, viewpoint discrimination is the
       proper way to interpret the University's objections to
       Wide Awake.

515 U.S. at 831.

Accordingly, viewpoint discrimination is prohibited even
in a nonpublic forum if strict scrutiny cannot be satisfied,
and discrimination based on the religious content of speech
is viewpoint discrimination. It follows that public school
authorities may not discriminate against student speech
based on its religious content if the discrimination cannot
pass strict scrutiny.

D. Recognition of this important principle would not
interfere with the operation of the public schools or impinge
upon the rights of other students. Public school teachers
have the authority to specify the subjects that students
may discuss in class and the subjects of assignments that
students are asked to complete. See, e.g. Cornelius, 473
U.S. at 806 (subject matter may be restricted in nonpublic
forum); Lehman v. City of Shaker Heights, 418 U.S. 298
(1974) (same); Brody, 957 F.2d at 1117 (same). Thus, if a
student is asked to solve a problem in mathematics or to
write an essay on a great American poet, the student clearly
does not have a right to speak or write about the Bible
instead.

Public school teachers may also enforce viewpoint-neutral
rules concerning such matters as the length of an oral
presentation or written assignment. See Brody , 957 F.2d at
1117 (reasonable time, place, and manner restrictions
allowed in nonpublic forum). If a paper is limited to 20
pages, the school obviously may insist that all students,
including any who wish to express a religious viewpoint,
adhere to that rule.

In the public schools, low-value speech, such as vulgar
and offensive language, may be restricted to a greater
extent than would otherwise be permissible. As the Court
observed in Bethel School District No. 403 v. Fraser, 478
U.S. 675, 683 (1986), "[s]urely it is a highly appropriate

                                23
function of public school education to prohibit the use of
vulgar and offensive terms in public discourse."" `[T]he
First Amendment gives a high school student the classroom
right to wear Tinker's armband, but not Cohen's jacket.' "
Id. at 682 (citation omitted).

Finally, a public school may even restrict speech based
on viewpoint if it can show a compelling interest for doing
so. In Tinker, the Court stated: "Clearly, the prohibition of
expression of one particular opinion, at least without
evidence that it is necessary to avoid material and
substantial interference with schoolwork or discipline, is
not constitutionally permissible." 393 U.S. at 511. Later,
the Court observed that "conduct by the student, in class
or out of it, which for any reason . . . materially disrupts
classwork or involves substantial disorder or invasion of the
rights of others is, of course, not immunized by the
constitutional guarantee of freedom of speech." Id. at 513.
Therefore, if the expression of a particular religious
viewpoint, such as one espousing racial hatred, creates a
sufficient threat, school authorities may intervene.

Taken together, these constitutionally permissible ways of
regulating student speech provide ample means of ensuring
that student expression does not interfere with the effective
operation of the schools or cause harm to other students.
School authorities are not permitted to discriminate against
student expression simply because of its religious
character.

E. When these principles are applied to the present case,
it is clear that the judgment of the District Court must be
reversed. Taking down Zachary's Thanksgiving poster and
replacing it in a less conspicuous location because of its
religious content was plainly viewpoint, not subject matter,
discrimination. The subject matter of the poster was
specified by Zachary's teacher: something for which he was
thankful as the Thanksgiving holiday approached. His
poster fell within the specified subject matter, and it is not
alleged that the poster was subjected to discriminatory
treatment because of that subject. Rather, the poster was
allegedly given discriminatory treatment because of the
viewpoint that it expressed, because it expressed thanks for
Jesus, rather than for some secular thing. This was

                                24
quintessential viewpoint discrimination, and it was
proscribed by the First Amendment unless the Medford
defendants can show that allowing Zachary's poster to be
displayed with his classmates' on a non-discriminatory
basis would have "materially disrupt[ed] classwork or
involve[d] substantial disorder or invasion of the rights of
other[ ] [students]." Tinker , 393 U.S. at 513.

No such showing is evident from the pleadings, and
nothing asserted in the Medford defendants' briefs suggests
that they could make such a showing on remand. The
Medford defendants contend that the treatment of
Zachary's poster furthered the compelling interest of
avoiding an Establishment Clause violation. See Medford
Defendants' Supplemental Br. at 27-31. It is clear, however,
that displaying Zachary's poster would not have violated
the Establishment Clause. The Establishment Clause is not
violated when the government treats religious speech and
other speech equally and a reasonable observer would not
view the government practice as endorsing religion. Capitol
Square, 515 U.S. at 763-70 (1995)(plurality); id. at 777
(O'Connor, J., concurring in part and concurring in the
judgment). See also Santa Fe Independent School District v.
Doe, 120 S. Ct. 226, 2278 (2000).

Here, a reasonable observer would not have viewed the
exhibition of Zachary's Thanksgiving poster along with the
secular posters of his classmates as an effort by the school
to endorse religion in general or Christianity in particular.
An art display that includes works of religious art is not
generally interpreted as an expression of religious belief by
the entity responsible for the display. Even the amici
supporting the defendants acknowledge that "[d]isplay of
student artwork with religious themes is understood to be
the personal expression of the student and not that of the
school." Brief Amicus Curiae of the American Jewish
Congress, Anti-Defamation League and Americans United
for Separation of Church and State at 1. Furthermore, if
there had been any danger that anyone might have
reasonably interpreted the display of Zachary's poster in
the hall as an effort by the school to endorse Christianity or
religion, the school could have posted a sign explaining that
the children themselves had decided what to draw. See

                               25
Capitol Square Review, 515 U.S. at 793-94 (Souter, J.,
concurring in the judgment).

For these reasons, I see no indication in the briefs that
the Medford defendants had a compelling reason for
treating Zachary's Poster in the manner alleged. Zachary's
teacher in effect asked him a question: What are you
thankful for as Thanksgiving approaches? Zachary was
entitled to give what he thought was the best answer. He
was entitled to be free from pressure to give an answer
thought by the Medford educators to be suitable for a boy
who is "public school material." Complaint para. 21.

F. In affirming the judgment of the district court, the
panel took the position that a public school is free to
practice viewpoint discrimination in regulating student
speech in class and in assignments, provided only that the
discrimination is "reasonably related to a legitimate
pedagogical concern." 195 F.3d at 170-72. Moreover, the
panel held that avoiding the possibility of "resentment" by
parents is a legitimate pedagogical concern. Id . at 175.
According to the panel, then, if public school authorities
could reasonably think that a student's expression of a
particular viewpoint in a class discussion or assignment
could cause "resentment" on the part of other students or
parents, the school may censor the student's speech.

The panel's view is radically at odds with fundamental
First Amendment principles. As previously discussed,
viewpoint discrimination strikes at the heart of the freedom
of expression. And in order to restrict core First
Amendment speech, much more is needed than the
possibility that the speech may cause resentment. See
Texas v. Johnson, 491 U.S. at 407-10. This principle
applies to speech in public schools. As the Supreme Court
wrote in Tinker, "[a]ny word spoken in class . . . that
deviates from the views of another person may start an
argument or cause a disturbance. But our Constitution
says that we must take this risk." Tinker, 393 U.S. at 737.
Thus, "[i]n order for the State in the person of school
officials to justify prohibition of a particular expression of
opinion, it must be able to show that its action was caused
by something more than a mere desire to avoid the

                                26
discomfort and unpleasantness that always accompany an
unpopular viewpoint." Id at 738.

The panel's understanding of the First Amendment
principles applicable in this case was based on one case --
Hazelwood School District v. Kuhlmeir, 484 U.S. 260 (1988).
See 195 F.3d at 171-74. The panel viewed Hazelwood as
providing the governing standard for "student expression
that is part of a school curriculum," see 195 F.3d at 171,
including things that students say (or express by other
means, such as artwork) when they are called upon by
their teachers to express their own thoughts or views. This
is an incorrect interpretation of Hazelwood. Hazelwood
involved a high school principal's censorship of articles in
the school newspaper. The Court described the issue before
it as concerning "educators' authority over school-
sponsored publications, theatrical productions, and other
expressive activities that students, parents, and members
of the public might reasonably perceive to bear the
imprimatur of the school." 484 U.S. at 271. The Court held
that educators may regulate such activities "so long as their
actions are reasonably related to legitimate pedagogical
concerns." Id. at 273. While Hazelwood certainly applies to
many things that occur in the classroom -- such as work
on the school newspaper at issue in that case (see 484 U.S.
at 268) -- nothing in Hazelwood suggests that its standard
applies when a student is called upon to express his or her
personal views in class or in an assignment.

On the contrary, Hazelwood   governs only those
expressive activities that   might reasonably be perceived "to
bear the imprimatur of the   school." 484 U.S. at 271. This
understanding of Hazlewood   is fortified by Rosenberger,
where the Court wrote:

       A holding that the University may not discriminate
       based on the viewpoint of private persons whose
       speech it facilitates does not restrict the University's
       own speech, which is controlled by different principles.
       See e.g., . . . Hazelwood School Dist. V. Kuhlmeier, 484
       U.S. 260, 270-272.

515 U.S. at 834 (emphasis added).

                                 27
Things that students express in class or in assignments
when called upon to express their own views do not"bear
the imprimatur of the school" Hazlewood, 484 U.S. at 271,
and do not represent "the [school's] own speech."
Rosenberger, 515 U.S. at 834. "The proposition that schools
do not endorse everything that they fail to censor is not
complicated." Westside Community Bd. v. Mergens, 496
U.S. 226, 250 (1990)(opinion of O'Connor, J.).

In the present case, for reasons already discussed,
reasonable students, parents, and members of the public
would not have perceived Zachary's poster as bearing the
imprimatur of the school or as an expression of the school's
own viewpoint. Thus, it is abundantly clear that Hazelwood
has no application here.

If the panel's understanding of Hazelwood were correct,
it would lead to disturbing results. Public school students
-- including high school students, since Hazelwood was a
high school case -- when called upon in class to express
their views on important subjects, could be prevented from
expressing any views that school officials could reasonably
believe would cause "resentment" by other students or their
parents. If this represented a correct interpretation of the
First Amendment, the school officials in Tinker could have
permitted students, as part of a class discussion, to express
views in favor of, but not against, the war in Vietnam
because some students plainly resented the expression of
antiwar views. See 393 U.S. at 509 n.3. Today, school
officials could permit students to express views on only one
side of other currently controversial issues if the banned
expression would cause resentment by some in the school,
as it very likely would. Such a regime is antithetical to the
First Amendment and the form of self-government that it
was intended to foster.

IV.

In sum, I would hold that the District Court erred in
granting judgment for the defendants. I would reverse and
remand for a determination whether the Medford
defendants did in fact treat Zachary's poster in a
discriminatory fashion because of its religious content. And

                               28
if discriminatory treatment is shown, I would give the
Medford defendants the opportunity to show that their
actions were supported by a compelling reason and were
narrowly tailored to serve that end.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               29
