Kountze Indep. Sch. Dist. v. Matthews ex rel. Her Minor Child Macy Matthews

KOUNTZE INDEPENDENT SCHOOL DISTRICT, Appellant v. COTI MATTHEWS, ON BEHALF OF HER MINOR CHILD MACYMATTHEWS, ET AL, Appellees

NO. 09-13-00251-CV

Court of Appeals Ninth District of Texas at Beaumont

Submitted on April 1, 2016

September 28, 2017

On Appeal from the 356th District Court Hardin County, Texas

Trial Cause No. 53526

MEMORANDUM OPINION

This appeal is before us on remand from the Texas Supreme Court. See Kountze Indep. Sch. Dist. v. Matthews, 482 S.W.3d 120 (Tex. App.—Beaumont 2014), rev'd and remanded, 484 S.W.3d 416 (Tex. 2016). This is an interlocutory appeal from the trial court's denial of Kountze Independent School District's ("Kountze ISD") plea to the jurisdiction.

The facts of this case were set forth extensively in this Court's previous opinion. See Kountze Indep. Sch. Dist., 482 S.W.3d at 124-26. Therefore, we recite only those facts relevant to the resolution of the issues presently before us. The Appellees, consisting of parents of certain cheerleaders from Kountze High School, on behalf of the cheerleader students ("Cheerleaders"), brought suit against Kountze ISD and its former superintendent, Kevin Weldon, after Weldon issued a decree that prohibited the Cheerleaders from including religious messages on run-through banners used at the beginning of high school football games.¹ After a combined hearing on multiple motions, including Kountze ISD's plea to the jurisdiction, Kountze ISD's motion for summary judgment on its request for declaratory relief, and the Cheerleaders' motion for partial summary judgment, the trial court issued a partial summary judgment order on May 8, 2013. In the order, the trial court granted, in part, Cheerleaders' motion for partial summary judgment,thereby implicitly denying Kountze ISD's plea to the jurisdiction. See Thomas v. Long, 207 S.W.3d 334, 340 (Tex. 2006) (noting that by ruling on the merits of the plaintiff's claims, the trial court assumed jurisdiction and necessarily implicitly denied the defendant's jurisdictional challenge, providing the appellate court jurisdiction for interlocutory appeal.).

Jurisdiction

Kountze ISD appealed the trial court's denial of its plea to the jurisdiction. Generally, an appeal may only be taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When there has been no conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or clearly and unequivocally states that it finally disposes of all claims and parties. Id. at 205. Appellate courts have authority to review interlocutory orders only when authorized by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001). Section 51.014 of the Civil Practice and Remedies Code allows an appeal from an interlocutory order that "grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001[.]" Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2016). Kountze ISD is a governmental unit under section 101.001. See id. § 101.001(3)(B) (West Supp.2016). Therefore, we have jurisdiction to consider the interlocutory appeal of the trial court's implicit denial of the plea to the jurisdiction. See id. § 51.014(a)(8).²

Standard of Review

A plea to the jurisdiction is a dilatory plea that challenges a trial court's authority to decide a case on the merits. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). To have authority to resolve a case, a court must have subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Sovereign and governmental immunity from suit deprive a trial court of subject matter jurisdiction. Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). In a suit against a governmental entity, the plaintiff must prove a valid waiver of immunity from suit and must plead sufficient facts to affirmatively demonstrate the court's jurisdiction in order to invoke the court's subject matter jurisdiction over the claim. Tex. Dep't of Parks & Wildlife v.Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Ass'n of Bus., 852 S.W.2d at 446. Whether the trial court has subject matter jurisdiction is a question of law that we review under a de novo standard, construing the pleadings liberally in plaintiff's favor and accept the pleadings' factual allegations as true. Miranda, 133 S.W.3d at 226; Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). The reviewing court does not examine the merits of the cause of action when considering a trial court's ruling on a plea to the jurisdiction, but considers only the plaintiff's pleadings and any evidence relevant to the jurisdictional inquiry. Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).

In order to overcome the school district's entitlement to governmental immunity, the Cheerleaders are required to allege facts that affirmatively demonstrate the trial court's jurisdiction. See Tex. Ass'n of Bus., 852 S.W.2d at 446.

Analysis

"It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). This often quoted sentence from one of the most important Supreme Court cases in history protecting the constitutional rights of students conveys that schools are notinstitutions immune from constitutional scrutiny: students retain their constitutional freedoms even when they cross the threshold into the school. At the same time, the Court has also held that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings[,]" Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). The rights of students "must be 'applied in light of the special characteristics of the school environment.'" Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (quoting Tinker, 393 U.S. at 506).

The central disagreement between the Cheerleaders and Kountze ISD has revolved around the question of whether the Cheerleaders' run-through banners are, for purposes of free speech law, "government speech" as maintained by the school district, or "private speech" as claimed by the Cheerleaders. Kountze ISD contends there is no waiver of governmental immunity as to the Cheerleaders' free speech claims because they have not established that the banners are private speech, and thus, the trial court erred by denying the plea to the jurisdiction. We will address the issue concerning whether the speech is government speech or private speech, as the resolution of that issue controls the question of governmental immunity in this matter.

Government speech is "not subject to scrutiny under the Free Speech Clause." Pleasant Grove City v. Summum, 555 U.S. 460, 464 (2009). That is, the government may restrict its own speech, which includes speech expressed by others under government control, without implicating the Free Speech Clause. Id. at 467-68. The "government speech doctrine" is justified at its core by the idea that, in order to function, government must have the ability to express certain points of view, including control over that expression. See, e.g., Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 598 (1998) (Scalia, J., concurring in the judgment) ("It is the very business of government to favor and disfavor points of view . . . ."). The doctrine gives the government an absolute defense to an individual's free-speech claim. Thus, if the Cheerleaders' speech as painted on the run-through banners is pure government speech, the Cheerleaders could not prove a valid waiver of immunity from suit in order to invoke the court's subject matter jurisdiction over their claim. See Miranda, 133 S.W.3d at 226. Private speech, on the other hand, is generally subject to constitutional protections of free speech, save and except for certain enumerated types of forbidden speech not applicable here, and governmental immunity has been waived for such claims.Applicable Law

The Cheerleaders clearly alleged in their petition that, among other things, the "Defendants deprived and continue to deprive [them] of their rights to free speech[.]" They also sought "a declaration from the Court . . . that the conduct and actions of Defendants as described violate state law, to include the Texas Constitution[.]" The Texas Constitution provides: "Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press." Tex. Const. art. I, § 8. The U.S. Supreme Court has held that "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students." Tinker, 393 U.S. at 506. The Cheerleaders offer no arguments based on the text, history, or purpose of section 8 that it provides them any greater protection in this context than that provided by the First Amendment of the U.S. Constitution. As such, we may rely upon persuasive authorities applying free speech protections under both the federal and Texas constitutions. See In re Commitment of Fisher, 164 S.W.3d 637, 645 (Tex. 2005) ("Where, as here, the parties have not argued that differences in state and federal constitutional guarantees are material to the case, and none is apparent, we limit our analysis to the United States Constitution and assume that its concernsare congruent with those of the Texas Constitution."); Tex. Dep't of Transp. v. Barber, 111 S.W.3d 86, 106 (Tex. 2003); Davenport v. Garcia, 834 S.W.2d 4, 40 (Tex. 1992) (Hecht, J., concurring) ("When state and federal provisions overlap or correspond, state law, as well as federal law and the law of other states, may be helpful in analyzing their...