    Case: 18-31099   Document: 00515222270     Page: 1   Date Filed: 12/04/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                         United States Court of Appeals
                                                                  Fifth Circuit

                                                                FILED
                                No. 18-31099             December 4, 2019
                                                           Lyle W. Cayce
                                                                Clerk
ALEASHIA CLARKSTON;
KINGDOM BUILDERS COMMUNITY DEVELOPMENT CORPORATION,

                                         Plaintiffs–Appellants,

versus

JOHN WHITE, In His Individual Capacity as
Superintendent of the Louisiana Department of Education,

                                         Defendant–Appellee.



                Appeal from the United States District Court
                    for the Middle District of Louisiana




               ON PETITION FOR REHEARING EN BANC

Before OWEN, Chief Judge, SMITH and DENNIS, Circuit Judges.
PER CURIAM:

     Treating the petition for rehearing en banc as a petition for panel
rehearing, the petition for panel rehearing is DENIED. No member of the
panel or judge in regular active service having requested that the court be
poled on rehearing en banc (Federal Rule of Appellate Procedure 35 and Fifth
Circuit Rule 35), the petition for rehearing en banc is DENIED.
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                                       No. 18-31099
       The opinion issued October 25, 2019, is VACATED, and the following
opinion is substituted, the only change being to add language to footnote 5:



                                        * * * * *


Before OWEN, Chief Judge, SMITH and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

       Kingdom Builders Community Development Corporation (“Kingdom
Builders”) and its CEO, Aleashia Clarkston, sued John White, the Superin-
tendent of the Louisiana Department of Education (“LDOE”), alleging that
White caused the denial of Kingdom Builders’s charter school application in
retaliation for Clarkston’s expressing her views on disciplinary practices—
including corporal punishment—on the nationally televised show America’s
Supernanny. Plaintiffs sought damages via a 42 U.S.C. § 1983 claim for First
Amendment retaliation and a state retaliation claim per article I, section 7 of
the Louisiana Constitution. The district court held that Clarkston had “failed
to state a valid claim for retaliation.” We affirm on a different ground.

                                               I.
       In June 2015, Kingdom Builders submitted a charter school application
to the Lafayette Parish School Board, which the board denied.                       Plaintiffs
appealed to the Louisiana Board of Elementary and Secondary Education
(“BESE”). 1 In connection with that appeal, the LDOE and SchoolWorks, a
third-party evaluator contracted by the LDOE, evaluated plaintiffs’



       1 Under Louisiana law, a charter school must first submit its application to the local
school board. LA. STAT. ANN. § 17:3983(A)(2)(a)(i). If the application is denied, the chartering
group may appeal to the BESE. See id.
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                                      No. 18-31099
application. SchoolWorks recommended that the BESE approve the applica-
tion, but the LDOE—through White—recommended that the BESE deny it. 2

       Following the conflicting reports, the BESE deferred ruling on the appeal
and directed White to hire a third party to review his concerns with Clarkston’s
application. White contracted with Transcendent Legal to conduct that review.
Transcendent Legal’s report focused on “concerns specifically pertain[ing] to
whether or not the proposed school leader [(Clarkston)] possesse[d] the pro-
fessional judgment necessary to open and lead a high-performing charter
school.” Among those concerns was Clarkston’s appearance on the television
show America’s Supernanny, which “caused the [LDOE] to question her pro-
fessional judgment in choosing to air her family’s disciplinary practices,”
including the use of corporal punishment, “on national television while repre-
senting herself as an educator.”

       Applying six norms used by the National Policy Board for Educational
Administration, 3 Transcendent Legal examined Clarkston’s professionalism.
It concluded that she exceeded expectations for one of the professional norms,
met expectations for two, and failed to meet expectations for three. Transcen-
dent Legal recognized that “[w]ithout question, Mrs. Clarkston’s deficiencies


       2 As Superintendent, White is responsible for “[m]ak[ing] recommendations on con-
tracts and agreements to be entered into by the board.” Id. § 17:22(2)(b). The BESE—not
the LDOE—has the authority under state law to approve or deny a charter school application.
Id. § 17:3983(A)(3)(c).
       3 The standards asked whether Clarkston: (1) “act[ed] professionally in personal con-
duct, relationships with others, decision-making, stewardship of the school’s resources, and
all aspects of school leadership”; (2) “act[ed] according to and promote[d] the professional
norms of integrity, fairness, transparency, trust, collaboration, perseverance, learning, and
continuous improvement”; (3) “place[d] children at the center of education and accept[ed]
responsibility for each student’s academic success and well-being”; (4) “safeguard[ed] and
promote[d] the values of democracy, individual freedom and responsibility, equity, social
justice, community, and diversity”; (5) “le[d] with interpersonal and communication skill,
social-emotional insight, and understanding of all students’ and staff members’ backgrounds
and cultures”; and (6) “promote[d] professional behavior among faculty and staff.”
                                             3
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                                       No. 18-31099
in any given norm resulted solely from Mrs. Clarkston’s decision to participate
in the reality show Supernanny and/or the related publicizing of her participa-
tion in that television show just three (3) short years ago.”

       In March 2016, after reviewing the evaluations of the School Board,
SchoolWorks, and Transcendent Legal, the LDOE—through White—again
recommended that the BESE deny plaintiffs’ application. Highlighting that
Transcendent Legal’s “report provide[d] mixed conclusions regarding the pro-
fessional judgment of the proposed school leader that neither disqualifies nor
validates the Department’s concerns,” the LDOE emphasized that its “concerns
serve not as definitive character statements, but rather as potential evidence
of issues that should give BESE pause before authorizing the charter under
the proposed leadership.”

       After hearing from the LDOE, the BESE denied plaintiffs’ application.
Both sides now agree that the BESE was the ultimate decisionmaker.

       Plaintiffs brought claims for retaliation, alleging violations of the First
and Fourteenth Amendments and article I, section 7 of the Louisiana Consti-
tution. 4 Plaintiffs contended that White took “action against the Plaintiffs
because he disagreed with opinions expressed by Mrs. Clarkston on a national
television show, ‘America’s Supernanny,’ in 2013 regarding corporal punish-
ment of her own children.” They also contended that “White’s opinion and



       4  Article I, section 7 provides that “[n]o law shall curtail or restrain the freedom of
speech or of the press. Every person may speak, write, and publish his sentiments on any
subject, but is responsible for abuse of that freedom.” LA. CONST. art. I, § 7. “Louisiana’s
constitutional protection of free speech mirrors that of the First Amendment,” Heaney v.
Roberts, 846 F.3d 795, 801 n.2 (5th Cir. 2017), and “the Louisiana Supreme Court would
recognize the same [QI] defense for claims under Article I, Section 7, that federal courts
recognize for § 1983 First Amendment claims,” id. Therefore, if “summary judgment is proper
as to Plaintiffs’ First Amendment claims, summary judgment is also proper on Plaintiffs’
Article I, § 7 state law claims.” Cripps v. La. Dep’t of Agric. & Forestry, 819 F.3d 221, 231
(5th Cir. 2016). Accordingly, the two claims are analyzed as a single issue.
                                              4
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                                 No. 18-31099
recommendation to the [BESE] was a motivating factor in the Board’s decision
to deny Kingdom Builders’ charter school application.”

      White moved for summary judgment, asserting, inter alia, the defense of
qualified immunity (“QI”). The district court granted the motion and dismissed
plaintiffs’ claims with prejudice, finding that they had failed to state a valid
retaliation claim.

                                       II.
      We affirm on a basis different from the one relied on by the district court.
White is entitled to QI because, at the time of his alleged violation, it was not
clearly established that First Amendment liability could attach to a public offi-
cial who did not possess final decisionmaking authority. The district court did
not reach the QI inquiry, but this court may affirm for any reason supported
by the record, even if not relied on by the district court. Palmer v. Waxahachie
Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009).

                                       A.
      Government officials “are entitled to [QI] under § 1983 unless (1) they
violated a federal statutory or constitutional right, and (2) the unlawfulness of
their conduct was clearly established at the time.” District of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018) (internal quotation marks omitted). Courts
are “permitted to exercise their sound discretion in deciding which of the two
prongs of the [QI] analysis should be addressed first in light of the circum-
stances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223,
236 (2009).

      The plaintiff has the burden to point out the clearly established law.
Delaughter v. Woodall, 909 F.3d 130, 139 (5th Cir. 2018). “Clearly established
law is determined by controlling authority—or a robust consensus of

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                                        No. 18-31099
persuasive authority—that defines the contours of the right in question with a
high degree of particularity.” Id. (internal quotation marks omitted). “This
means the contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right, although it
is not necessary for controlling precedent to have held that the official’s exact
act was unlawful.”          Id. at 139–40 (internal quotation marks omitted).
Ultimately, “[t]he central concern is whether the official has fair warning that
his conduct violates a constitutional right.” Id. at 140.

                                               B.
       We conclude, at the second prong, that the right at issue was not clearly
established, so White is entitled to QI. It thus is unnecessary for us to reach
the more complicated issue of whether a rights violation occurred at the first
prong. See Callahan, 555 U.S. at 236.

       At the time White allegedly violated plaintiffs’ rights—March 2016, at
the latest—this court’s jurisprudence was ambiguous regarding whether First
Amendment liability could attach to a public official who did not possess final
decisionmaking authority. 5 Because White was not a final decisionmaker, it
was not clearly established that he could be liable for his recommendation to
the BESE. Accordingly, he is entitled to QI.

       AFFIRMED.


       5 See, e.g., Sims v. City of Madisonville, 894 F.3d 632, 641 (5th Cir. 2018) (per curiam)
(holding that caselaw had not clearly established “whether First Amendment liability can
attach to a public official who did not make the final employment decision”); Pennypacker v.
City of Pearl, 689 F. App’x 332, 332 (5th Cir. 2017) (per curiam) (“It is not clearly established
in this circuit whether [non-final decisionmakers] may be held personally liable for First
Amendment retaliation under § 1983.”). To be sure, after Sims, the law is ‘no longer . . .
‘unsettled’ in this area,” and we know that “individual liability for a government official who
violates constitutional rights, including First Amendment rights, turns on traditional tort
principles of ‘but-for’ causation.” Sims, 894 F.3d at 639, 641. But the QI question here turns
on whether the law was clearly established.
                                               6
