     Case: 13-40433   Document: 00512650331    Page: 1   Date Filed: 06/03/2014




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

                                                                        FILED
                                No. 13-40433                         June 3, 2014
                                                                   Lyle W. Cayce
DOUG MORGAN,                                                            Clerk


                                          Plaintiff-Appellant
v.

LYNN SWANSON, in her individual capacity and as PRINCIPAL OF
THOMAS ELEMENTARY SCHOOL,

                                          Defendant-Appellee




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:


      The per curiam opinion dated April 2, 2014 is withdrawn and the
following per curiam is substituted in its place. The separate writings of
Judges Benavides and Clement are unchanged and are refiled herewith.


      Plaintiff-Appellant Doug Morgan appeals a dismissal in which the
district court granted qualified immunity to an elementary school principal
who did not allow him to distribute religious material to other adults at his
son’s in-class winter party. We affirm.
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                                  No. 13-40433


I.    Background
      In December of 2003, Doug Morgan attended an in-class winter party
with his son, Jonathan. As part of the traditional student gift exchange,
Jonathan intended to distribute candy canes bearing a religious message.
Principal Lynn Swanson, however, told the Morgans that religious material
would not be permitted in the third-grade classroom. After confirming this
policy with district administrators, Swanson suggested that they place the
materials on an “information table” where other families could pick up the
material and take it home. She later announced that all materials—religious
or otherwise—were prohibited from the classroom, but the Morgans noticed
that the other students were allowed to exchange gifts. After Jonathan was
excluded from the gift exchange, the Morgans filed suit under 42 U.S.C. § 1983,
alleging a violation of Jonathan’s First Amendment rights. This Court, sitting
en banc, held that Principal Swanson unconstitutionally discriminated on the
basis of viewpoint when she did not allow Jonathan to distribute his gifts. See
Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc).            The Court
nevertheless granted Swanson qualified immunity, finding relevant law too
“abstruse” and “complicated” for Swanson to have known how to handle the
situation. Id. at 382.
      Doug Morgan now asserts that he, too, experienced viewpoint
discrimination when Principal Swanson told him not to distribute the religious
material to other consenting adults in the classroom. He does not allege that
any other parents were permitted to exchange gifts, nor does he challenge the




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school’s policy, so the factual foundation of his claim is unclear. 1 Rather than
reach the merits of Morgan’s constitutional assertions, the district court
dismissed the claim after finding that Swanson is entitled to qualified
immunity. 2 We review such a decision de novo, taking all well-pleaded facts
as true and in light most favorable to the plaintiff. Whitley v. Hanna, 726 F.3d
631, 637 (5th Cir. 2013). To overcome the qualified immunity defense at the
pleading stage, Morgan must allege that the objectionable conduct violated a
right that was “clearly established at the time.” Pearson v. Callahan, 555 U.S.
223, 227 (2009).
II.    Discussion
       The sole question before this Court is whether Morgan’s asserted right
to distribute the material was so clearly established that Principal Swanson is
not entitled to qualified immunity. The district court did not address the
actual constitutionality of Swanson’s conduct, and because we find that she is
entitled to immunity, we need not reach that question today. Id. at 236–37.
       A school official is entitled to immunity from civil liability arising out of
her discretionary decisions unless her conduct is “clearly established” as
unconstitutional at the time of the disputed action. Safford Unified Sch. Dist.
No. 1 v. Redding, 557 U.S. 364, 377 (2009). Where there are no allegations of


       1  Morgan’s claim may not meet the pleading standard, even aside from any failure to
overcome Swanson’s defense. Fed. R. Civ. P. 12(b)(6); see also Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (holding that conclusory allegations do not meet the 12(b)(6) standard); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 547 (2007) (requiring “enough facts to state a claim to relief
that is plausible on its face”). Because Swanson is entitled to qualified immunity, we do not
make this determination today.
        2 Neither the defendant nor the district court indicated whether the dismissal is

pursuant to 12(b)(6) or 12(c). The distinction is of little import, as the two motions are
governed by the same substantive standard, and there is no dispute as to the evidentiary
materials properly before the Court. Gentilello v. Rege, 627 F.3d 540, 543–44 (5th Cir. 2010).
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malice, there exists a “presumption in favor of qualified immunity” for officials
in general, and for educators in particular. Schalk v. Gallemore, 906 F.2d 491,
499 (10th Cir. 1990) (citation omitted); see also Safford, 557 U.S. at 377
(referring to the “high degree of deference that courts must pay to [an]
educator’s professional judgment”). Courts recognize that school officials have
“a difficult job, and a vitally important one.” Morse v. Frederick, 551 U.S. 393,
409 (2007). For this reason, educators are entitled to immunity unless “no
reasonable official” would have deemed the disputed conduct constitutional.
Morgan, 659 F.3d at 371, 417.
      Our review of existing law reveals that educators are rarely denied
immunity from liability arising out of First-Amendment disputes. Morgan,
659 F.3d at 371. The rare exceptions involve scenarios in which a factually
analogous       precedent     clearly    established     the      disputed     conduct   as
unconstitutional. For example, the Eleventh Circuit considered allegations
that a student was punished for silently raising his fist instead of reciting the
pledge with his classmates. Holloman ex rel. Holloman v. Harland, 370 F.3d
1252 (11th Cir. 2004).         The facts as pleaded indicated that there was no
disruption of any kind, and that the teacher admitted that she was appalled
and disappointed by the “unpatriotic” behavior. Id. at 1281. After reviewing
the record, the court concluded that the student’s conduct was essentially a
combination of Tinker’s 3 non-verbal expression and the Barnette 4 right to
abstain from the pledge. Id. at 1268–70. Because a student’s right to engage
in this kind of non-disruptive political expression has been so clearly



      3   Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503 (1969).
      4   W. Va. State Bd. Of Educ. v. Barnette, 319 U.S. 624 (1943).
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established, the court held that the teacher and principal were not entitled to
qualified immunity. Id. at 1270. Similarly, another court identified three
“factually similar” circuit precedents before withholding immunity from a
coach who suspended a football player that had reported an assault by a
teammate. Seamons v. Snow, 206 F.3d 1021 (10th Cir. 2000). The prior cases
had so clearly established the law that the plaintiff was able to overcome the
presumption in favor of qualified immunity. Id. at 1030. In the present case,
however, there is no legal authority that clearly establishes the asserted right
such that Morgan can overcome Swanson’s defense.            A plaintiff does not
overcome the qualified immunity defense by alleging the violation of a right
that is only defined “at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S.
----, 131 S. Ct. 2074, 2084 (2011).       Instead, there must exist a clearly
established “particular right” such that the official had “fair notice” of that
right and its concomitant legal obligations. Camreta v. Greene, 563 U.S. ----,
131 S. Ct. 2020, 2031 (2011). In other words, “the contours of the right” must
be “sufficiently clear that a reasonable official would understand that what he
is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
In concluding that a particular right is clearly established, courts must rely
only on authority that existed at the time of the disputed conduct; conversely,
courts may consider newer contrary authority as evidence that the asserted
right is not clearly established. See Wilson v. Layne, 526 U.S. 603, 614, 617–
18 (1999).
      Morgan argues that his right to distribute religious material is clearly
established because “regardless of forum, viewpoint discrimination regarding
private speech is unconstitutional.” This assertion is generally true. Yet such
a broad generalization is exactly the kind of proposition that will not suffice for
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the purposes of qualified immunity analysis, as it simply does not provide the
official with any sense of what is permissible under a certain set of facts. For
example, the nearly universal prohibition against viewpoint discrimination
does not inform an official as to what, precisely, constitutes viewpoint
discrimination. Nor does it enlighten a teacher as to the permissible extent of
content restriction in a classroom setting. For these reasons, this Court has
already rejected the viewpoint discrimination principle as “far too general” to
have clearly established, at the time of the incident, Swanson’s constitutional
obligations vis-à-vis the holiday party. Morgan, 659 F.3d at 378. And we are
not alone: the Ninth Circuit recently rejected an argument very similar to the
one made here, holding that “sweeping statement[s]” about the First
Amendment are not sufficient to deprive a teacher of qualified immunity. C.F.
ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 987 (9th Cir.
2011); accord Hosty v. Carter, 412 F.3d 731, 738 (7th Cir. 2005).
      When asked at oral argument to name a case that clearly establishes
Morgan’s right to distribute the religious gifts, Morgan pointed to Chiu v.
Plano Indep. Sch. Dist., 260 F.3d 330 (5th Cir. 2001).          Yet the case is
inapposite. Chiu dealt with after-school meetings whose express purpose was
to allow adults to discuss mathematics instruction. Id. at 336–37. This Court
held that—regardless of whether the meetings were properly classified as
public forum or limited public forum—school officials could not prohibit the
plaintiffs from distributing material related to certain curriculum options. Id.
at 354. It is difficult to imagine how Chiu establishes a specific rule applicable
to this case.   The present case does not involve an individual trying to
contribute relevant materials to a public forum dedicated to adult dialogue.
Instead, a parent asked whether he could distribute religious material during
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a school-day activity for children. So while Chiu may indeed be relevant in
discerning the nature and extent of Morgan’s rights in the classroom, the case
does not itself establish those rights, and its radically different factual context
renders Chiu incapable of providing any meaningful guidance to an educator
trying to handle First Amendment concerns arising out of a third-grade party.
III.    Conclusion
        After carefully considering Morgan’s arguments, we find that he has not
identified any case clearly establishing the constitutional right asserted here.
Nor are we aware of such a case. Where there is no authority recognizing an
asserted right, and where the area of law is as “abstruse” and “complicated” as
First Amendment jurisprudence, that right cannot be clearly established for
the purposes of qualified immunity analysis.         Morgan, 659 F.3d at 382.
Accordingly, Morgan’s allegations are not sufficient to overcome Swanson’s
qualified immunity defense.       His claim is therefore properly dismissed.
AFFIRMED.




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FORTUNATO P. BENAVIDES, Circuit Judge, specially concurring:
      I concur in the decision and write separately only to further elaborate on
the complex and unsettled aspects of this area of the law.              The First
Amendment circumscribes a school’s authority to restrict the speech of non-
student visitors to campus. The constitutional extent of that authority varies
with the use of the facility. First, where a school facility is opened as a general
public forum, any regulation is subject to strict scrutiny, and only narrowly
tailored time, place, and manner restrictions are permissible. Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). Second, a school
serving only as a limited public forum need not “allow persons to engage in
every type of speech,” and officials may restrict use to “certain groups or [to]
the discussion of certain topics” provided that restrictions are viewpoint-
neutral.   Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001)
(citation omitted). And finally, where a school is not opened as a public forum
at all, but is simply operating as a school, officials enjoy the “inherent”
authority to limit an outsider’s access and expression to that which is
“compatible with the intended purpose of the property.” Perry, 460 U.S. at 49.
      Complicating this seemingly straightforward framework are the
requirements of the Establishment Clause. A government entity must remain
neutral toward religion. Good News, 533 U.S. at 114. Any restriction on
religious expression must have a “secular . . . purpose,” and should not inhibit
religious practice or “foster an excessive government entanglement with
religion.” Lemon v. Kurtzman, 403 U.S. 602, 613 (1971) (citation and internal
quotation marks omitted).         Accordingly, public school officials must
“accommodate the free exercise of religion” without appearing to “endorse one
religion over another, or to endorse religion in general.” Lee v. Weisman, 505
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U.S. 577, 585, 587 (1992) (citation omitted). At the same time, any regulation
intended to prevent apparent endorsement must not be so onerous that the
school seems hostile toward religion or religious individuals.         Lynch v.
Donnelly, 465 U.S. 668, 673 (1984).
      Because the extent of a school’s authority to restrict speech is a function
of so many complex variables, any countervailing right is rarely considered
“clearly established” for the purposes of qualified immunity analysis. See
Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc). Morgan
argues that his right to distribute religious material is clearly established
because “regardless of forum, viewpoint discrimination regarding private
speech is unconstitutional.” This observation is generally true, but is too broad
to provide an official with fair notice of any particular right at risk of being
violated. See Camreta v. Greene, 563 U.S. ----, 131 S. Ct. 2020, 2031 (2011).
And even assuming that some kind of universal prohibition against viewpoint
discrimination could serve as a rule for the purposes of qualified immunity,
that broad proposition is not clearly established in the context of the public
schools.   In fact, the Supreme Court endorsed a policy akin to viewpoint
discrimination when it allowed a school district to forbid certain teachers’
unions from accessing teacher mailboxes. Perry, 460 U.S. at 50. Although the
majority   declined   to label   this   differential treatment as     viewpoint
discrimination per se, it acknowledged a school’s inherent “right to make
distinctions in access on the basis of subject matter and speaker identity.” Id.
at 49. While “these distinctions may be impermissible in a public forum,” they
are “inherent and inescapable in the process of limiting a nonpublic forum to




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activities compatible with the intended purpose of the property.” 1 Here, it is
unclear whether any sort of differential or discriminatory treatment occurred.
Assuming so, and to the extent that it did, school officials may have simply
concluded that in-class religious canvassing among adults is not compatible
with a third-grade classroom activity.
       Moreover, some courts have affirmatively held that the Constitution
permits a certain degree of viewpoint discrimination in the schools. The First
and Tenth Circuits have held that viewpoint discrimination may be
permissible in the context of school-sponsored speech. 2                  Another court
expressly endorsed restrictions on the use of religious materials in the
classroom. 3 And the Supreme Court itself has acknowledged that “it is not
clear” whether the need to “avoid[] an Establishment Clause violation would
justify viewpoint discrimination.” Good News, 533 U.S. at 113. We need not
determine today how these precedents might inform or influence the resolution
of the constitutional issues raised by Morgan. However, the fact that the
nation’s highest Court has conceded the lack of clarity renders suspect any
claims that the law is clearly established.
       Morgan relies on two cases, Chiu and Good News, as evidence of his right
to distribute religious material to other adults. See generally id.; Chiu v. Plano
Indep. Sch. Dist., 260 F.3d 330 (5th Cir. 2001). For the reasons stated in our




       1 Id; see also Greer v. Spock, 424 U.S. 828, 839–40 (1976) (upholding regulation
banning the distribution of literature on military base without prior consent of commander,
as such a restriction helps maintain the “politically neutral” nature of the establishment).
       2 See Fleming v. Jefferson Cnty. Sch. Dist. R-1, 298 F.3d 918, 928 (10th Cir. 2002)

(holding that the Constitution “does not require educators’ restrictions on school-sponsored
speech to be viewpoint neutral”); accord Ward v. Hickey, 996 F.2d 448, 454 (1st Cir. 1993).
       3 Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 97 (3d Cir. 2009).

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decision today, Chiu does not establish the asserted right. Good News is also
inapposite. If anything, Good News only underscores the extent to which
Morgan fails to identify any authority that clearly establishes the asserted
right. In that case the Supreme Court held that a school district cannot restrict
access to a limited public forum on the basis of viewpoint. 533 U.S. at 106. In
its extended discussion of relevant authority, the Court considered several
precedents, finding each one distinguishable on one ground or another. Id. at
114–117. Indeed, a First Amendment precedent may be rendered inapposite
by any number of factual distinctions, including the speaker, the subject, the
venue, and the timing. These factual differences give rise to legal distinctions
that affect the outcome of a case. Consequently, a precedent will only provide
fair notice to an official if it is analogous in nearly every respect to the dispute
being adjudicated. Yet Morgan does not point to any remotely analogous case
that existed at the time of Swanson’s actions. Nor am I aware of such a case.
         The intersection of the First Amendment and the public school classroom
presents unusually difficult questions of law, even for the judiciary.         The
Constitution zealously safeguards the individual right to practice religion, yet
it precludes any religious expression that might be seen as emblematic of the
state. In light of this tension, it seems unrealistic to expect that an educator
might somehow divine her constitutional obligations without any authority on
point.
         Two years ago this Court held that—notwithstanding the vast body of
law addressing the First Amendment rights of students—the contours of the
rights were not sufficiently clear to provide Swanson fair notice of her
constitutional obligations with respect to the student gift exchange. Morgan,
659 F.3d at 382. Given the wholesale absence of authority addressing the
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rights of adults in the classroom, the contours of those rights are even less
distinct. Consequently, regardless of the actual constitutionality of Swanson’s
decision not to let Morgan distribute his religious material, I cannot conclude
that “every reasonable official” would have deemed the decision to be a
violation of a constitutional right. Cf. Ashcroft v. al-Kidd, 563 U.S. ----, 131 S.
Ct. 2074, 2083 (2011) (citation and internal quotation marks omitted).
Accordingly, I concur in affirming the dismissal.




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EDITH BROWN CLEMENT, Circuit Judge, concurring:
      Regretfully, I join in the judgment affirming the district court’s decision.
I do so chiefly because the issues in this case are virtually indistinguishable
from the ones our en banc court addressed two years ago. Morgan v. Swanson,
659 F.3d 359 (5th Cir. 2011) (en banc) (“Morgan En Banc”). A divided court
there held that because clearly established law did not put the constitutionality
of the principals’ conduct pertaining to restrictions on student speech beyond
debate, the principals were entitled to qualified immunity.            Id. at 371
(Benavides, J., writing for the majority on this point). Another majority found
that the principals had violated the student’s First Amendment rights. Id. at
401 (Elrod, J., writing for the majority on this point and dissenting in part).
While I joined with Judge Elrod in finding a clearly established right that was
violated by the principals’ viewpoint discriminatory restrictions on student
religious speech, that position did not garner majority support.
      I see no principled distinction between restricting the right of Jonathan
Morgan to share his religious message with other students and Doug Morgan’s
right to share his religious message with other parents.            By necessary
implication, Morgan En Banc resolved this issue: Doug Morgan’s First
Amendment rights were violated when Principal Swanson discriminated
against his religious viewpoint.
      But, the separate majority in Morgan En Banc found that the trove of
conflicting and confusing precedent in the student speech context prevented
that right from being clearly established, and therefore could not deprive
Principal Swanson of qualified immunity for her actions. As the majority
noted,


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            When considering a defendant’s entitlement to qualified
      immunity, we must ask whether the law so clearly and
      unambiguously prohibited his conduct that every reasonable
      official would understand that what he is doing violates [the law].
      To answer that question in the affirmative, we must be able to
      point to controlling authority – or a robust consensus of persuasive
      authority – that defines the contours of the right in question with
      a high degree of particularity.


      Morgan En Banc, 659 F.3d at 371-72 (internal quotation marks
and citations omitted).
      In Morgan En Banc, there was a significant body of caselaw defending
student free speech rights in schools. See Tinker v. Des Moines Indep. Cmty.
Sch. Dist., 393 U.S. 503, 506 (1969) (“It can hardly be argued that either
students or teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.”). The Chiu cases cited by Mr. Morgan are
evidence that parents do not cede their First Amendment rights when they
walk through the schoolyard gate either. Chiu v. Plano Ind. Sch. Dist., 260
F.3d 330 (2001); Chiu v. Plano Ind. Sch. Dist., 339 F.3d 273 (2003). In the Chiu
cases, parents who disagreed with the transition to a new math curriculum
were discriminated against because of their viewpoint: they were not permitted
to place materials opposed to the proposed curriculum next to materials
promoting the proposed curriculum. 260 F.3d at 351-52. The contention that
other parents or students were permitted to give out gifts with a secular
message while Mr. Morgan was not permitted to give out gifts with a religious
message is a significantly analogous situation. But here, it is not clear from
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the pleadings if the other parents in the Morgan’s school were permitted to
give gifts to other parents or whether the activity was limited to students.
Absent a comparative parent who did not suffer discrimination, Chiu’s
applicability wans.
      As a practical and prudential matter, Morgan En Banc has resolved this
issue: if Jonathan Morgan’s right to share his religious message was not clearly
established enough then to deprive Principal Swanson of qualified immunity,
the same must be said here. There is no reason to believe that the court sitting
en banc would resolve the case of Mr. Morgan any differently in light of that
precedent.
      The argument that the right enunciated in Morgan En Banc is not
clearly established ended with that case in regards to student free speech. The
decisive concurrence in that case – comprised of the judges who composed the
majority for each prong – sought “to state the law correctly and prevent school
officials in the future from censoring private speech by students simply because
it is religious.” Morgan En Banc, 659 F.3d at 390 (Jones, J., concurring). If
the facts of Morgan were repeated in another case today, the outcome would
be different, and rightly so. Ours was a nation founded by those who sought a
place where they could proclaim their faith freely. Our forebears would be
disappointed to see a country where students and parents were not permitted
to share a simple gift at Christmas conveying a timeless message of love and
redemption that no government should seek to suppress.




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