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

Under Texas state law, public school districts must require students to recite the United States Pledge of Allegiance … every school day. However, the law requires schools to excuse any student from this obligation “[o]n written request from a student’s parent or guardian.” …

Oliver is a young black woman who was enrolled as a student at Klein Oak High School … within [the Klein Independent School District] during the events that gave rise to this case. Oliver objects to the Pledge because she feels that the portion declaring America to be a nation “under God” fails to recognize many religions and does not match her personal religious beliefs. She further believes that, contrary to the words of the Pledge, there is not “freedom and justice for all” in America because she and other black people continue to experience widespread racial persecution. Oliver therefore declines to stand for or recite the Pledge ….

[In 2017,] Oliver took Arnold’s Sociology class. On August 18, 2017, the Klein Oak principal held a meeting with Oliver’s teachers, including Arnold, and instructed them that Oliver was not required to participate in the Pledge. Nonetheless, on September 20, 2017, Arnold gave the class an assignment to transcribe the words of the Pledge of Allegiance …. Although Arnold claims that the assignment had a pedagogical purpose, the district court found that his intentions were genuinely disputed, and we therefore must assume for purposes of this appeal that Arnold’s justification was pretextual and Arnold intended the assignment as a mandatory statement of patriotic belief from his students. Oliver refused to complete the assignment and instead drew a “squiggly line.”

During class the next day, Arnold told his students that anyone who did not complete the Pledge assignment would receive a grade of zero. Arnold then engaged in an extended diatribe, which we must assume was aimed at Oliver and motivated by his hostility toward her refusal to transcribe the Pledge, in which he lamented what he viewed as the decline of American values and decried a variety of people whose attitudes he deemed to be un-American, including communists, supporters of Sharia law, foreigners who refuse to assimilate into American culture, and sex offenders and those that argue for their rehabilitation….

In the days that followed, Arnold continued to exhibit hostility toward Oliver and treat her more harshly than other students as a result of her refusal to transcribe the Pledge, including by repeatedly moving her seat, intentionally calling her by the wrong name, and making disparaging comments about her accomplishments in extracurricular activities. Although Arnold denies treating Oliver differently than other students and maintains that he enforced his classroom rules evenly, the district court again found that these facts are genuinely disputed, and we thus must assume that Arnold singled Oliver out for hostile mistreatment as a result of her opposition to the Pledge assignment….

The district court … found that genuine disputes of fact existed regarding whether Arnold assigned transcription of the Pledge with the impermissible motive of requiring a statement of patriotism from his students, and the court therefore concluded that Arnold was not entitled to summary judgment on Oliver’s compelled speech claim. The court further determined that “a reasonable jury could conclude that Arnold exhibited hostility toward, and retaliated against, Oliver for refusing to write the pledge, and that he threatened to give a zero to anyone who refused to write the pledge (whether he acted on the threat or not).” “A jury could also reasonably find that Arnold’s speech to the class and threat to punish refusal to write the pledge with a zero would chill a person of ordinary firmness from exercising protected speech,” the district court concluded, which precluded a grant of summary judgment on Arnold’s claim for First Amendment retaliation….

The court of appeals concluded that, if the facts were as Oliver alleged, she could prevail on her legal claims:

[Arnold] contends that Oliver’s compelled speech claim fails because [Oliver’s mother] did not submit a [statutory] request and Oliver was thus required by state law to participate in the Pledge; because the Pledge assignment was given for pedagogical purposes, and, under Brinsdon v. McAllen Independent School District, 863 F.3d 338 (5th Cir. 2017) [which allowed a qualified immunity defense for an assignment in Spanish class that “required students to memorize and recite in Spanish the Mexican Pledge of Allegiance and sing the Mexican National Anthem” -EV], it does not violate clearly established law to require a student to participate in the Pledge for didactic reasons; and, relatedly, because a refusal to complete a class assignment given for pedagogical reasons is not expressive conduct protected by the First Amendment. But, as we have stated, the district court found these facts to be genuinely disputed, and we must assume due to the posture of this appeal that [Oliver’s mother] did submit a valid [statutory] request and that Arnold gave the Pledge assignment “for the purposes of teaching, fostering[,] and perpetuating the ideals, principles[,] and spirit of Americanism”—the intent the Supreme Court found impermissible in Barnette.

Similarly, Arnold argues that Oliver does not have a valid claim for retaliation because her refusal to complete the Pledge assignment was not constitutionally protected activity, because “the evidence” shows he did not harass her or treat her differently than other students, and because any adverse actions he took were not motivated by Oliver’s refusal to complete the Pledge assignment. But, again, because the district court found these facts to be genuinely disputed, we must assume for purposes of this appeal that Arnold gave the Pledge assignment for impermissible purposes, rendering Oliver’s refusal protected activity; that Arnold singled Oliver out and treated her differently than other students; and that these adverse actions were motivated by hostility to Oliver’s refusal to complete the Pledge assignment….

Arnold raises no argument as to why, if he did engage in the actions toward Oliver that she alleges and he was substantially motivated by opposition to Oliver’s refusal to complete the Pledge assignment, they nonetheless failed to cause Oliver “an injury that would chill a person of ordinary firmness from continuing to engage in that [protected] activity.” … [A]rguments that are not raised on appeal are waived.

Our dissenting colleague argues that Arnold simply gave an unconventional teaching assignment that no clearly established law prohibits. He further posits that, in holding that Arnold’s conduct, if proven, would violate clearly established rights, we open the door for students to sue over any classwork they deem offensive. But the dissent fails … to consider the facts in the light most favorable to Oliver. In this appeal, the “impure motive” we must assume Arnold had for giving the Pledge assignment is not simply “foster[ing] respect for the Pledge” as the dissent contends.

Instead, because the district court found that Arnold’s motives are genuinely disputed, we must presume here that Arnold was requiring his students to make precisely the sort of written oath of allegiance that the dissent acknowledges would be impermissible. We are not permitted to look beyond the district court’s findings of disputed facts to conclude that, based on the evidence in the record, Arnold was instead merely employing a “curious teaching method.”

The dissent also places much weight on the fact that what is at issue here is a “written assignment.” But the Court in Barnette stated, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” It is immaterial that, under the facts we must accept here, the required pledge was a written oath rather than an oral one and that the consequence for non-compliance was an academic penalty rather than an overt disciplinary action.

Barnette clearly states that teachers and other school officials may not require students to swear allegiance, and with the case in this posture, we must assume that this is what Arnold did. Thus, there is no danger that our decision will pave the way for students to file lawsuits over their being required to study Dr. Seuss or any of the other figures featured in the scenarios the dissent imagines. Unless a teacher is requiring students to swear their fealty and devotion to Dr. Seuss and his teachings, the assignments the dissent envisions are clearly not implicated by the present case….