     Case: 14-10731       Document: 00513205407         Page: 1     Date Filed: 09/23/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                       No. 14-10731                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
LITTLE PENCIL, L.L.C.; DAVID L. MILLER,                                  September 23, 2015
                                                                            Lyle W. Cayce
               Plaintiffs - Appellants                                           Clerk

v.

LUBBOCK INDEPENDENT SCHOOL DISTRICT,

               Defendant - Appellee



                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:14-CV-14


                         ON PETITION FOR REHEARING
Before JOLLY and DENNIS, Circuit Judges, and RAMOS,* District Judge.
PER CURIAM:**
       We deny the petition for rehearing en banc, but grant panel rehearing.
We withdraw our earlier opinion, which adopted the reasoning of the district
court and affirmed the dismissal of the complaint. We now substitute therefor
the following, which also dismisses the complaint but not for the all-inclusive
reasons asserted by the district court:



       * District Judge of the Southern District of Texas, sitting by designation.
       ** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                  No. 14-10731
      The plaintiffs seek to display an image and website address on the
jumbotron at the Lubbock Independent School District (“LISD”) football field.
LISD refused to allow the ad for several reasons. Shortly thereafter, the
plaintiffs sued LISD under 42 U.S.C. § 1983, claiming multiple violations of
the First and Fourteenth Amendments. After reviewing the evidence, the
district court granted summary judgment in favor of LISD.
      The plaintiffs appealed.    Having studied the record and briefs, and
having heard the oral argument of the parties, we AFFIRM the district court’s
grant of LISD’s motion for summary judgment and dismissal of the complaint.
      We hold that the football field was a limited public forum and LISD’s
content-based, viewpoint-neutral limitations were reasonable in the light of a
Texas law against tattoo parlors serving minors and LISD policies against
visible tattoos. Consequently, we find no reversible error in the district court’s
conclusion that LISD’s subject-matter limitations on the jumbotron were
constitutional. See Christian Legal Soc. Chapter of the Univ. of Cal., Hastings
Coll. of the Law v. Martinez (CLS), 561 U.S. 661, 685 (2010) (explaining that
the regulation must be “reasonable in light of the purposes of the forum”);
Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985)
(holding that an exclusion must be “reasonable in light of the purpose served
by the forum”).
      The plaintiffs’ Establishment Clause claim fails because LISD may
legitimately exclude the ad for its tattoo content without a “risk [of] fostering
a pervasive bias or hostility to religion, which could undermine the very
neutrality the Establishment Clause requires.” Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U.S. 819, 845–46 (1995). That LISD permitted
other religious organizations to advertise evidences that it fosters no such
hostility. And, in the light of these other ads, no reasonable observer could
conclude that excluding the ad endorsed irreligion over religion. See Doe v.
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                                  No. 14-10731
Santa Fe Indep. Sch. Dist., 168 F.3d 806, 814 (5th Cir. 1999) (explaining the
Endorsement Test).
      Furthermore, as stated by the district court, the plaintiffs’ Fourteenth
Amendment Due Process and Equal Protection rights were not violated
because “the jumbotron is a limited public forum and [LISD] has offered a
rational basis for rejecting the advertis[ement].” We find no reversible error
in the district court’s conclusion that the plaintiffs failed to identify a “life,
liberty, or property” interest that had been denied without due process because
“the [LISD] Superintendent, with advice and counsel, is sufficiently restrained
by First Amendment law to prevent abuse by ‘unfettered discretion.’ ”
      With respect to the plaintiffs’ Free Exercise claim, we find no reversible
error in the district court’s conclusion that the plaintiffs’ arguments were
“advanced under the [incorrect] premise that the forum was a [designated]
public forum for the free expression of ideas and views.” Given the limited
nature of the forum, and the tattoo content in the ad, LISD could exclude the
ad. Moreover, there was no compulsion of, or punishment for, religious belief;
nor was there a substantial burden placed upon religiously-motivated conduct.
See Emp’t Div., Dept. of Human Res. of Or. v. Smith, 494 U.S. 872, 876–77,
882–83 (1990) (citing Sherbert v. Verner, 374 U.S. 398 (1963)). Finally, we hold
that the district court did not abuse its discretion in denying Little Pencil’s
request for leave to supplement the record.
      The judgment of the district court dismissing the complaint is, therefore,
AFFIRMED.
                                                                    AFFIRMED.




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