Oliver v. Klein Indep. Sch. Dist.

448 F.Supp.3d 673

Mari Leigh OLIVER, et al., Plaintiffs,

v.KLEIN INDEPENDENT SCHOOL DISTRICT, et al., Defendants.

CIVIL ACTION NO. H-17-3234

United States District Court, S.D. Texas, Houston Division.

Signed March 25, 2020

Geoffrey Thomas Blackwell, American Atheists Inc., Washington, DC, Randall Lee Kallinen, Attorney at Law, Houston, TX, for Plaintiffs.

Amy Dawn Demmler, Clay T. Grover, Jonathan Griffin Brush, Rogers, Morris & Grover, L.L.P., Houston, TX, Thomas Phillip Brandt, Caroline Sileo, Francisco J. Valenzuela, Fanning Harper Martinson Brandt & Kutchin PC, Dallas, TX, for Defendants.

MEMORANDUM AND OPINION^*

Lee H. Rosenthal, Chief United States District Judge

There is no shortage of lawsuits against school districts and officials alleging constitutional violations against students, parents, or employees. But it is rare to see a case alleging that a teacher or school district violated a public school student's First Amendment right not to salute the flag or pledge allegiance to it. Why? Because the Supreme Court made it clear in 1943, in West Virginia State Board of Education v. Barnette , 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), that the First Amendment forbids compelling saluting or pledging allegiance to the flag. The Supreme Court and the lower courts have since implemented, and elaborated on, the contours of students' free-speech rights in a series of cases, taking into account schools' interest in maintaining campus discipline. See Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (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."); Morgan v. Swanson , 659 F.3d. 359, 375 (5th Cir. 2011) (quoting Tinker , 393 U.S. at 509, 89 S.Ct. 733 ; quotation marks omitted) ("School officials may only restrict ... private, personal expression to the extent it would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, or impinge upon the rights of other students."); Brinsdon v. McAllen Ind. Sch. Dist. , 863 F.3d 338, 348, 351 (5th Cir. 2017) (quoting Bethel Sch. Dist. No. 403 v. Fraser , 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) and Tinker , 393 U.S. at 506, 89 S.Ct. 733 ) ("The First Amendment rights of students ‘are not automatically coextensive with the rights of adults in other settings.’ ... Students must be afforded freedom of speech in school, but the right is ‘applied in light of the special characteristics of the school environment ....’ ").

If the scarcity of recent free-speech cases¹ on the Pledge of Allegiance is an indication, that case law is well established. Yet here we are. LaShan Arceneaux, the mother of Mari Oliver, sued the Klein Independent School District and several teachers and administrators at Klein Oak High School under 42 U.S.C. § 1983, alleging that they violated Oliver's constitutional rights under color of state law by disciplining and harassing her for sitting silently during the recitation of the Pledge of Allegiance. The plaintiffs allege that the defendants failed to prevent continuing harassment and constitutional violations because they did not discipline teachers and school officials for punishing and harassing Oliver and for allowing other students to bully her for sitting silently during the pledge. The allegations include many incidents of discipline and harassment by four teachers—Stephen Naetzker, Jennifer Walton, Benjie Arnold, and Angie Richard—and a school principal—Lance Alexander—over three-and-a-half years. Arceneaux sued as Oliver's next friend when Oliver was a minor, but Oliver is now an adult.

The plaintiffs allege that Arceneaux notified Klein Superintendent Bret Champion that she had exempted Oliver from observing the pledge and that Klein's response to the harassment was so inadequate as to violate clearly established constitutional rights. The plaintiffs allege that the harassment by teachers and students continued after Arceneaux complained and even after the lawsuit was filed.

In 2018, this court granted in part and denied in part motions to dismiss the second amended complaint. (Docket Entry Nos. 49, 58). The latest pleading, the fourth amended complaint, asserted municipal and individual liability damages and declaratory relief claims for violating Oliver's constitutional rights to free speech, free exercise of religion, and equal protection of the laws. (Docket Entry No. 104). The municipal liability claims are against the Klein Independent School District, Superintendent Bret Champion, Principals Brian Greeney and Thomas Hensley, and Assistant Principal Kimberly Walters. The pending motions are the defendants' motions to dismiss² and motions for summary judgment, and the plaintiffs' motion for partial summary judgment. (Docket Entry Nos. 82, 83, 86, 108, 116, 117, 121, 123, 125, 127).

At a March 2020 hearing, the defendants' counsel stated on the record that the court should rely on evidence outside the pleadings and treat the arguments for dismissal as arguments for summary judgment. The plaintiffs' counsel agreed and stated on the record that his clients would not pursue their free-exercise and equal-protection claims, leaving only their free-speech claims. The parties stated that neither side needed to supplement the summary judgment record.

The plaintiffs' free-speech claims are that Naetzker, Walton, Alexander, and Arnold violated Oliver's right not to speak; Arnold and Richard retaliated against Oliver for her protected speech of remaining seated and silent during the pledge; and that the District, Superintendent Champion, and Principals Greeney, Hensley, and Walters were aware of, but deliberately indifferent to, the alleged constitutional violations. (Docket Entry No. 104 at ¶¶ 115–117). The plaintiffs contend that the defendants' actions "show a long-standing pattern and practice" of mistreating Klein Oak students who abstain from the Pledge of Allegiance. (Id. at ¶ 119). The plaintiffs moved for partial summary judgment on their compelled-speech claim against Arnold, as well as a chilled-speech claim against Richard, which was not alleged in the complaint.³ (Docket Entry No. 117).

Based on the pleadings, the motions and responses, the record, the parties' oral arguments, and the applicable law, the court grants summary judgment on the free-speech claims as to all defendants except Arnold, and denies the plaintiffs' motion for partial summary judgment. The motion to dismiss the claim for injunctive relief, (Docket Entry No. 82), is denied as moot because the fourth amended complaint does not include that claim.⁴ The reasons for these rulings are set out in detail below.

I. Background

Texas law instructs school districts to require students to recite the United States Pledge of Allegiance and the Texas Pledge of Allegiance each school day. TEX. EDUC. CODE § 25.082(b) (2017). School districts must excuse students from reciting or observing the pledge "[o]n written request from a student's parent or guardian." TEX. EDUC. CODE § 25.082(c) (2017). The Klein Independent School District's pledge policy tracks the Texas statute, which Oliver does not challenge on its face. (Docket Entry No. 138-1 at 40). Oliver testified that she refused to stand for or recite the pledge because she disagrees philosophically with the religious portions of the United States and Texas pledges and she believes that many people, especially African Americans, do not receive liberty and justice. (Docket Entry No. 122-2, Oliver Dep. at 21:11–23:2; see also Docket Entry No. 104 at ¶ 40). Oliver alleges several instances of harassment by Klein Oak High School employees and students based on her refusal to observe the Pledge of Allegiance.

A. The 2014 Incidents with Teacher Stephen Naetzker

On November 3, 2014, in Stephen Naetzker's World Geography class, Oliver sat silently during the pledge. (Docket Entry No. 138-1, Oliver Dep. (Exhibit A) at 179:12–180:11; Docket Entry No. 138-1, Naetzker Dep. (Exhibit H) at 33:8–16). Naetzker referred Oliver to Assistant Principal Kimberly Walters and wrote on a "disciplinary form" that Oliver had refused to stand during the pledge.⁵ (Docket Entry No. 138-1 at 66). Naetzker testified in his deposition—Oliver disputes this testimony—that he wrote Oliver up for refusing to stop typing during the moment of silence that follows the pledge and being disrespectful when he spoke with her about it. (Docket Entry No. 137 at 14; Docket Entry No. 138-1, Naetzker Dep. (Exhibit H) at 24:21–30:8).

Oliver testified that Assistant Principal Walters told her that "maybe in [Naetzker's] class, it would just be better to [stand] since he was in the military and he had military service, [and] sitting probably offended him." (Docket Entry No. 138-1, Oliver Dep. (Exhibit A) at 35:18–20). Oliver also testified that Assistant Principal Walters told her that Naetzker had "the right" to tell Oliver to stand during the pledge because of Naetzker's military service. (Id. at 141:7–19). Assistant Principal Walters testified that she did not recall this conversation or receiving the disciplinary form from Naetzker about Oliver sitting during the pledge. (Docket Entry No. 119, Walters Dep. at 76:19–78:10, 82:13–25). Walters testified that if she had received this form, she would have taken no action against Oliver and would have conferred with Naetzker about the school's pledge policy. (Id. at 81:15–23).

Oliver stood for the pledge in Naetzker's class for the rest of the semester. She testified that she was afraid not to because "there was such a bad reaction the first time I did it." (Docket Entry No. 138-1, Oliver Dep. (Exhibit A) at 37:8–25).

Naetzker testified that before he finished his disciplinary write-up on Oliver, he asked Thomas Hensley, then an assistant principal, about the school's pledge policy. According to Naetzker,...