IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-40613
_____________________
CELIA J CHIU; DENISE BROWN; VERONICA C JENKINS; DENISE
KIRKE; ALFRED G KIRKE; KENNETH R JOHNSON
Plaintiffs - Appellees
v.
PLANO INDEPENDENT SCHOOL DISTRICT; ET AL
Defendants
JAMES DAVIS, DR, Plano Independent School District Central
Cluster Area Assistant Superintendent; MARILYN BROOKS,
Associate Superintendent for Curriculum and Instructions;
JAMES WOHLGEHAGEN, DR; ROXANNE BURLESON, Principal Haggard
Middle School; CORKY CRISWELL, Principal Hendrick Middle
School; BEVERLY SELLERS, Principal Wilson Middle School
Defendants - Appellants
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
July 24, 2001
Before KING, Chief Judge, and ALDISERT* and BENAVIDES, Circuit
Judges.
PER CURIAM:
Defendants-Appellants Dr. James Davis, Dr. James
Wohlgehagen, Roxanne Burleson, Corky Criswell, Beverly Sellers,
*
Circuit Judge of the Third Circuit, sitting by
designation.
and Marilyn Brooks, all educators or administrators in the Plano
Independent School District, appeal from the district court’s
partial denial of summary judgment. Defendants-Appellants
contend that they are entitled to qualified immunity in their
individual capacities as to the 42 U.S.C. § 1983 claims raised by
Plaintiffs-Appellees Alfred Kirke, Kenneth Johnson, and Veronica
Jenkins,1 all parents of children in the Plano Independent School
District.
Specifically, Defendants-Appellants Davis, Wohlgehagen,
Burleson, Criswell, and Sellers claim qualified immunity from
Kirke’s and Johnson’s allegations that their First Amendment
rights were violated when Kirke and Johnson were prevented from
communicating with, and distributing information to, other
parents at a school-sponsored curriculum meeting. Defendant
Brooks claims qualified immunity from Jenkins’s allegation that
her First Amendment rights were violated when Jenkins was
prevented from distributing an informational flyer through the
school mail delivery system. For the following reasons, we
dismiss Defendants Davis, Wohlgehagen, Burleson, Criswell, and
Sellers’s appeal from the denial of summary judgment based on
qualified immunity for want of jurisdiction; however, we reverse
the district court’s denial of summary judgment based on
qualified immunity as to Defendant Brooks.
1
The other named Plaintiffs-Appellees do not have claims
relevant to this appeal.
2
I. FACTUAL BACKGROUND
This dispute centers around the implementation of a new math
curriculum in the middle schools of the Plano Independent School
District (the “PISD”). In response to the recognition that the
PISD students were entering high school ill prepared to succeed
in high school level math courses, the PISD decided to improve
its middle school math curriculum. Beginning in the 1996-1997
school year, the PISD began instituting the “Connected Math
Program” (“Connected Math”) in four pilot middle schools:
Armstrong, Bowman, Haggard, and Wilson. Connected Math is a
three-year pre-algebra math program directed at the sixth,
seventh, and eighth grades, which teaches students to think
conceptually about math problems by emphasizing problem solving
and group interaction and by helping students understand how math
is applicable to their daily lives. During the 1999-2000 school
year, the PISD instituted Connected Math district wide.
Plaintiffs-Appellees Alfred Kirke, Kenneth Johnson, and
Veronica Jenkins (collectively “Plaintiffs”) are parents of
children enrolled in the PISD. Plaintiffs oppose Connected Math
because they believe that the new approach sacrifices the
acquisition of traditional computational skills and has not been
proven to be a successful alternative to a traditional middle
school math curriculum.
Defendants-Appellants are all PISD officials involved with
3
the implementation, administration, or teaching of Connected Math
(collectively “Defendants”). Davis was the PISD Central Cluster
Area Assistant Superintendent at the time of the dispute (now
retired). Wohlgehagen is the Coordinator for Secondary
Mathematics for the PISD. Burleson is the Principal at Haggard
Middle School in the PISD. Criswell is the Principal at Hendrick
Middle School in the PISD. Sellers is the Principal at Wilson
Middle School in the PISD. Brooks is the Associate
Superintendent for Curriculum and Instruction at the PISD.
In this appeal from a denial of summary judgment on
qualified immunity grounds, only the activities of Defendants as
they relate to the activities of Kirke, Johnson, and Jenkins are
relevant. The factual situation leading to the allegations of
each of these Plaintiffs will be addressed in turn.
A. Haggard Middle School Math Night
In order to inform parents about the Connected Math pilot
program, the PISD held a series of “Parent’s Math Nights” (“Math
Nights”) at its middle schools. These meetings were scheduled in
the evening after school hours and were announced in a local
paper and through flyers sent home with students. The agenda of
each Math Night included an introduction by the faculty about the
curriculum’s goals and objectives, a question-and-answer session,
and an informal meeting period to allow parents and teachers to
discuss the progress of individual students.
On August 25, 1998, Kirke attended a Math Night at Haggard
4
Middle School where his daughter was a student. He had received
a flyer sent home through his daughter inviting interested
parents to meet with school officials about Connected Math.
Kirke brought with him written materials he wished to distribute
to other parents, including two articles that criticized new
methods of teaching math that were similar to Connected Math.
Kirke also brought a petition for parents to sign that requested
the PISD to halt the implementation of Connected Math until an
independent evaluation of the curriculum was undertaken. This
petition included a request that parents be given more input into
the decision-making process concerning whether to choose
Connected Math over more traditional math.
Kirke alleges that on the morning of August 25, he discussed
with Burleson, the Principal of Haggard Middle School, his plan
to distribute the materials at the Math Night meeting. Burleson
disputes that this discussion occurred. Kirke arrived early to
the Math Night meeting and again allegedly discussed his plan to
distribute the materials with Burleson and Wohlgehagen, the
PISD’s Coordinator for Secondary Mathematics. Kirke claims that
neither of these Defendants objected to his distribution of
literature to the parents that were present at the meeting.
Kirke then placed his written materials on the same table that
held a PISD handout concerning the implementation of Connected
Math. The PISD handout contained a brief description of
Connected Math, an outline of research that had been conducted on
5
Connected Math, an explanation of the PISD implementation plan,
and charts illustrating the performance gains of children in the
Connected Math pilot program.
After several minutes, Kirke alleges that Burleson and
Wohlgehagen asked him to remove his materials from the table of
PISD materials. They requested that he move the literature
critical of Connected Math to avoid the suggestion that the
materials were endorsed by the PISD. Kirke complied with the
request. Kirke explains that prior to the official start of the
meeting, he would greet parents as they arrived and inform them
of the materials he had brought. Kirke states that he was once
again approached by Burleson and Wohlgehagen and asked to gather
his materials and leave the meeting. In response, Kirke asked if
he would be forced to leave the meeting if he refused to comply
with their request to cease distributing the materials.
Wohlgehagen told him that he would not be forced to leave.
Several minutes later, Kirke claims that Davis, the
Assistant Superintendent in charge of the PISD’s Central Cluster
Area, told him that he would not be allowed to circulate the
petition on school property. Kirke proceeded to put away his
petition. Kirke alleges that Davis approached him two other
times and requested that he cease distributing his materials to
the parents in attendance. After Davis’s final request, Kirke
ceased distributing the materials.
Kirke also states that Burleson assured him that he would
6
have an opportunity to present his concerns regarding Connected
Math following the PISD presentation. Defendants have admitted
that Kirke was never given this opportunity. With the exception
of distributing his materials and his personal communications
with parents, Kirke did not otherwise voice his opposition to
Connected Math at the Math Night meeting.
The following day, on August 26, 1998, Plaintiffs claim that
Davis sent an email memorandum to all Central Cluster principals
stating:
I want to alert all of you of our district legal position
regarding people coming on to your campus with petitions and
material associated with the Connected Math Program. You
are not to allow anyone to come on to your campus, inside or
out, to circulate a petition or pass out material related to
the Connected Math Program. The recent flap over the
Connected Math Program has prompted some people to conduct
personal campaigns supporting one side or the other. I
think they will seek support wherever they can find it,
including schools not using the program. Don’t get caught
napping on this one.
However, Davis denies authoring the email memorandum.2
2
The district court recognized that the authorship of the
email memorandum would be a question for the jury. The district
court pointed to two of Davis’s affidavits. The first states
that he did author and distribute an email regarding the
distribution of literature on campus, but that he did not believe
that the email in the record was the one he authored. In his
second supplemental affidavit, he unequivocally denied authoring
the email.
The record also includes a sworn affidavit from Melinda
McManus Shafer, a PISD parent and resident. In her affidavit,
Shafer states: “Shortly after August 26, 1998, I was given a copy
of a memo sent from Mr. Davis, then Area Superintendent for the
Central Cluster, to central cluster principals. This memo was
given to me by a Plano Independent School District employee who
had been given this memo from his/her principal.” Shafer also
swore to the authenticity of the memorandum: “I have absolutely
7
B. Wilson Middle School Math Night
On September 1, 1998, Kirke attended a second Math Night at
the Wilson Middle School where his son was a student. Kirke did
not seek prior approval to distribute his materials, which
included the articles critical of programs similar to Connected
Math. When he arrived, Kirke was approached by Davis and
Sellers, the Principal of Wilson Middle School, and was informed
that he would not be able to distribute his materials critical of
Connected Math or collect signatures on his petition. Kirke had
also prepared a large poster that read:
PISD officials told me that I can’t pass out flyers or
circulate a petition requesting a conventional math choice.
For more information, see me after the meeting or call our
hotline[.]
Davis and Sellers also told Kirke that he would not be allowed to
display his sign at the Math Night. According to Kirke’s
affidavit, he was informed by Davis and Sellers that he would not
be able to hold the sign or be allowed to communicate the
information contained on the sign anywhere on the school
premises. He was instructed to turn over the sign so parents
would not be able to read it. Kirke states that he complied with
these instructions. Kirke again did not participate in the
no reason to believe that the memo as I received from the
district employee has in any way been altered or is not the exact
copy as received by the central cluster principal from Dr. Davis,
or as the employee received from the principal of the school
where he/she was employed.”
8
question-and-answer portion of the program.
C. Hendrick Middle School Math Night
On October 12, 1998, Johnson attended a Math Night at
Hendrick Middle School. Johnson had a daughter in the PISD
school system, but his daughter did not attend Hendrick Middle
School. Johnson brought a report to the Math Night that was
prepared by the Texas Education Agency and that evaluated the
Connected Math textbook and concluded that it was
“nonconforming.” The report, however, had also approved of the
use of the Connected Math curriculum in Texas schools.3 Johnson
alleges that, prior to the meeting, he handed out this report to
arriving parents. Johnson admits that he did not seek to obtain
permission to distribute this literature. As he was distributing
the materials to parents, Criswell, the Principal of Hendrick
Middle School, informed Johnson that he would not be allowed to
pass out literature unless the material had been reviewed and
approved by school officials. Johnson alleges that Criswell was
highly agitated and shouted at him. Johnson, then, offered
Criswell an opportunity to view the Texas Education Agency’s
report, but Criswell declined to examine it. Criswell told
Johnson that he would be required to leave the premises if he
3
Apparently, an “approved” but “nonconforming” textbook
under the Texas Education Agency’s criteria does not teach all of
the skills required by state standards. Under this standard, it
is permissible for school districts to use such textbooks, but
they must supplement the curriculum with other materials.
9
wished to continue distributing his materials. Johnson states
that he put his materials away after this directive.
During the actual meeting, Criswell alleges that Johnson and
other parents who opposed Connected Math were disruptive.
Johnson denies his involvement in any disruption, but does admit
that some of the parents interrupted the faculty presentation.
Johnson did ask one or two questions, after raising his hand to
be acknowledged, in the question-and-answer session.
D. The Petition Drive
On March 25, 1999, Jenkins, a mother of a student at
Armstrong Middle School, contacted Defendant Brooks, Associate
Superintendent for Curriculum and Instruction for the PISD, to
inquire about sending a flyer home with the PISD school children.
The PISD has used school children to deliver informational flyers
to their parents in the past. (This process, by which students
are provided with information to take home to their parents, is
hereinafter referred to as the “school mail delivery system.”)
Jenkins’s proposed flyer was purportedly on behalf of
“MathChoice,” a non-profit, unincorporated group of parents
concerned about the implementation of Connected Math. In
addition to providing information critical of Connected Math, the
flyer solicited the signatures of parents who desired an
alternative to Connected Math. Brooks rejected the request to
send the petition home with the children. The reason stated for
denying the request was that “[o]nly non-profit groups providing
10
programming or services for students are allowed to send flyers
home with students.” The PISD concedes that organizations such
as the P.T.A. and other school organizations have contacted
parents through this method of delivery. Jenkins asserts that
for-profit entities such as athletic summer camps and local
amusement parks have also used the service. Jenkins eventually
mailed the MathChoice petition to parents using the U.S. mails.
II. PROCEDURAL HISTORY
On August 25, 1999, Plaintiffs filed their Original
Complaint for Declaratory Judgment, Injunctive Relief, and
Damages, seeking a judgment from the district court that
Defendants’ conduct violated Plaintiffs’ constitutional rights.
Relevant to this appeal, Kirke and Johnson brought suit under 42
U.S.C. § 1983 alleging that their First Amendment rights to
freedom of speech were abridged by the PISD when they were not
allowed to distribute literature, display signs, or collect
signatures on a petition at the Math Nights. Jenkins also
brought suit under 42 U.S.C. § 1983, alleging that her First
Amendment right was violated when she was denied the opportunity
to send a petition home with students that criticized Connected
Math. Plaintiffs also brought other federal and state claims not
relevant to this appeal; those claims were denied in the district
11
court.4
On February 11, 2000, Defendants moved for summary judgment,
based, in part, on qualified immunity. Regarding the First
Amendment issues relevant to this appeal, Defendants argued that
Plaintiffs could not demonstrate that a clearly established
constitutional right had been violated, and that, even if such a
violation could be demonstrated, their actions were objectively
reasonable.
On May 5, 2000, the district court issued its Order
resolving the issue of qualified immunity. Regarding Kirke’s and
Johnson’s First Amendment claims, the district court concluded
that it must deny Burleson, Criswell, Wohlgehagen, Davis, and
Sellers’s motion for summary judgment insofar as it asserted
qualified immunity. The district court determined that, in
examining the summary judgment evidence in the light most
favorable to Plaintiffs, Kirke and Johnson had alleged a
violation of a clearly established constitutional right, in that,
the actions of the individual Defendants created an inference of
impermissible content-based discrimination. Regarding Jenkins’s
4
The district court held that members of the PISD Board
of Trustees were entitled to qualified immunity in their
individual and official capacities on Plaintiffs’ First Amendment
claims. The district court also granted Defendants’ motion for
summary judgment on Plaintiffs’ claims under the Fourteenth
Amendment and § 26.003 of the Texas Education Code that the
parents had a right to direct the education of their children.
Furthermore, the district court denied Plaintiffs’ request for
class certification.
12
request to use the PISD school mail delivery system, the district
court “declined to address” Brooks’s summary judgment argument
based on qualified immunity because additional discovery was
necessary to determine whether there was content-based
discrimination motivating the denial of her request to distribute
the MathChoice petition.5
Defendants, in their individual capacities, timely appeal
the denials of summary judgment on qualified immunity grounds.
III. APPELLATE JURISDICTION
As an initial matter, we address our jurisdiction to hear
this interlocutory appeal. “District court orders denying
summary judgment on the basis of qualified immunity are
immediately appealable under the collateral order doctrine,
notwithstanding their interlocutory character, when based on a
conclusion of law.” Lukan v. N. Forest ISD, 183 F.3d 342, 345
(5th Cir. 1999) (internal quotations omitted) (quoting Coleman v.
Houston Indep. Sch. Dist., 113 F.3d 528, 531 (5th Cir. 1997));
see also Jones v. City of Jackson, 203 F.3d 875, 878 (5th Cir.
2000) (“Typically, denials of qualified immunity, although not
final orders, are immediately appealable under the collateral
order doctrine set forth in Cohen v. Beneficial Industrial Loan
5
We interpret the district court’s decision as
effectively denying the motion for summary judgment on the basis
of qualified immunity.
13
Corp., 337 U.S. 541 (1949).”). “If disputed factual issues
material to summary judgment are present, the district court’s
denial of summary judgment on the basis of immunity is not
appealable.” Jones, 203 F.3d at 878 (internal quotations
omitted) (quoting Lampkin v. City of Nacogdoches, 7 F.3d 430, 431
(5th Cir. 1993)).
We determine infra that Kirke and Johnson have alleged a
violation of a clearly established constitutional right, but that
the presence of genuine issues of material fact about whether
that right was violated deprive us of appellate jurisdiction over
the appeals of Defendants Davis, Wohlgehagen, Burleson, Criswell,
and Sellars from the denial of qualified immunity.
Our appellate jurisdiction over the denial of qualified
immunity regarding Jenkins’s First Amendment claim against Brooks
is a more difficult issue to resolve. The district court did not
decide Brooks’s motion for summary judgment based on qualified
immunity, finding instead, insufficient facts precluded a
determination on the issue.6
6
The district court reasoned:
[T]he Court is persuaded that summary judgment on this
issue is premature. Without discovery, the Court is
unable to determine what PISD’s policy is on the issue
of access to its mails, and the degree to which it has
opened this system to the public. Without this
information, the Court is unable to judge either the
degree to which clearly established rights are
implicated or the reasonableness of the individual
Defendants’ actions.
14
Appellate jurisdiction over denials of qualified immunity on
the basis that factual issues exist turns on the type of facts at
issue. See Colston v. Barnhart (“Colston II”), 146 F.3d 282, 284
(5th Cir. 1998) (denying pet. for reh. en banc); see also Colston
v. Barnhart, 130 F.3d 96, 98 (5th Cir. 1997). In Colston II,
this court recognized that when a district court denies a motion
for summary judgment on the basis that there exist genuine issues
of material fact, it is actually making two separate legal
conclusions:
First, the court has concluded that the issues of fact in
question are genuine, i.e., the evidence is sufficient to
permit a reasonable factfinder to return a verdict for the
nonmoving party. Second, the court has concluded that the
issues of fact are material, i.e., resolution of the issues
might affect the outcome of the suit under governing law.
Id. (citations omitted). As this court explained in Lemoine v.
New Horizons Ranch & Center, Inc.:
Whether we have appellate jurisdiction turns on which of
these conclusions is being challenged on appeal. We do not
have appellate jurisdiction over the first type of
conclusion because such conclusions are nothing more than a
determination of the sufficiency of the evidence — a finding
which, in turn, is not truly separable from the underlying
claim and is thus not a “final order” under the collateral
order doctrine. On the other hand, we do have appellate
jurisdiction over the second of these conclusions because it
is a legal determination.
174 F.3d 629, 634 (5th Cir. 1999). Therefore, “[i]n deciding an
interlocutory appeal of a denial of qualified immunity, we can
review the materiality of any factual disputes, but not their
genuineness.” Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir.
2000). In making this legal determination on the materiality of
15
the facts at issue, “we review the complaint and record to
determine whether, assuming that all of [Plaintiffs’] factual
assertions are true, those facts are materially sufficient to
establish that defendants acted in an objectively unreasonable
manner.” Id. (“Even where . . . the district court has
determined that there are genuine disputes raised by the
evidence, we assume plaintiff’s version of the facts is true,
then determine whether those facts suffice for a claim of [the
constitutional violation alleged].”).
The district court determined that it was unable to
determine the scope of the PISD’s policy as to access to its
mails, or the degree to which the PISD has opened this system to
the public. On appeal, Brooks asserts that these disputed facts
are material in determining whether a constitutional right was
violated, a legal inquiry that could resolve the qualified
immunity question. Specifically, Brooks is challenging the
materiality of the facts at issue regarding whether she violated
the First Amendment in denying Jenkins’s request to utilize the
school mail delivery system. See Colston II, 146 F.3d at 284
(defining “material” as involving issues, the resolution of which
“might affect the outcome of the suit under governing law”).
Because we are reviewing the materiality of the facts at issue
regarding the school mail delivery system, we have appellate
jurisdiction to hear Brooks’s interlocutory appeal of the denial
of her qualified immunity. Following Wagner, we will assume all
16
of the facts presented by Jenkins to be true in order to
determine the legal issue of qualified immunity. See 227 F.3d at
320.
IV. STANDARD OF REVIEW
This court reviews de novo the district court’s denial of a
motion for summary judgment based on qualified immunity. See
Benningfield v. City of Houston, 157 F.3d 369, 374 (5th Cir.
1998); see also Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir.
2000); Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
“Summary judgment is proper ‘if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.’” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting FED. R. CIV. P. 56(c)). The moving
party bears the burden of showing the district court that there
is an absence of evidence to support the nonmoving party’s case.
See id. at 325. “If the moving party fails to meet this initial
burden, the motion must be denied, regardless of the nonmovant’s
response. If the movant does, however, meet this burden, the
nonmovant must go beyond the pleadings and designate specific
facts showing that there is a genuine issue for trial.” Tubacex,
Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The summary
17
judgment evidence is viewed in the light most favorable to the
nonmovant, with all factual inferences made in the nonmovant’s
favor. See Behrens v. Pelletier, 516 U.S. 299, 309 (1996). We
will affirm the denial of summary judgment based on qualified
immunity if there exists a genuine issue of material fact or if
the moving party is not entitled to judgment as a matter of law.
See FED. R. CIV. P. 56(c); Celotex Corp., 477 U.S. at 322.
V. QUALIFIED IMMUNITY
As a general rule, public officials acting within the scope
of their official duties are shielded from civil liability by the
qualified immunity doctrine. See Harlow v. Fitzgerald, 457 U.S.
800, 815-19 (1982); Morris v. Dearborne, 181 F.3d 657, 665 (5th
Cir. 1999). This doctrine protects officials “insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow, 457 U.S. at 818; Kipps v. Callier, 197 F.3d 765,
768 (5th Cir. 1999).
We apply a two-step analysis to determine whether a public
official is entitled to qualified immunity. “First, we must
examine whether the plaintiff has alleged a violation of a
clearly established right.” Goodson v. City of Corpus Christi,
202 F.3d 730, 736 (5th Cir. 2000); see also Petta v. Rivera, 143
F.3d 895, 899 (5th Cir. 1998). This circuit has refined this
18
first prong into three separate components. See Wallace v.
Wellborn, 204 F.3d 165, 167 (5th Cir. 2000). In Wallace, we
stated the test:
First, the plaintiff must allege the deprivation of a
constitutional right. Second, we must determine whether
this right was clearly established at the time of the
alleged violation. Finally, we must determine whether the
record at least gives rise to a genuine issue of material
fact as to whether the defendants actually engaged in the
conduct that violated this clearly established right.
Id. “For a constitutional right to be clearly established, ‘the
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.’” Doe v. Taylor Indep. Sch. Dist., 15 F.3d
443, 455 (5th Cir. 1994) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)); see also Petta, 143 F.3d at 899.7
“Second, we must ask whether the defendants’ conduct was
objectively reasonable in light of ‘clearly established’ law at
the time of the alleged violation.” Goodson, 202 F.3d at 736
(quoting Siegert v. Gilley, 500 U.S. 226, 231-32 (1991)); see
7
The term “‘clearly established’ does not necessarily
refer to commanding precedent that is factually on all-fours with
the case at bar or that holds that the very action in question is
unlawful.” Morris, 181 F.3d at 665. Instead, the right is
clearly established if it is based on pre-existing law, and the
unlawfulness of the conduct in question is apparent. See Shipp
v. McMahon, 234 F.3d 907, 915 (5th Cir. 2000); Taylor Indep. Sch.
Dist., 15 F.3d at 455 (“Put another way, officials must observe
general, well-developed legal principles.” (internal quotations
and citations omitted)). Furthermore, the applicable law must be
clearly established at the time of the allegedly actionable
conduct. See Morris, 181 F.3d at 665; Stem v. Ahearn, 908 F.2d
1, 5 (5th Cir. 1990).
19
also Petta, 143 F.3d at 899-900 (“If the plaintiff [states a
constitutional violation], the judge then determines whether the
defendant’s actions were ‘objectively reasonable’ with reference
to ‘clearly established law’ at the time of the conduct in
question.”). Having laid out the qualified immunity framework,
we will employ it in the context of the alleged First Amendment
violations.
VI. FIRST AMENDMENT ANALYSIS
Under the first prong of our qualified immunity analysis, we
must determine whether Plaintiffs have alleged a violation of a
clearly established right. See Evans v. Ball, 168 F.3d 856, 860
(5th Cir. 1999) (“We may not pretermit the first prong but must
decide whether [plaintiff] has alleged any constitutional
violation before we may move to the inquires under the second
prong.”). Kirke and Johnson have alleged that by infringing on
their speech and expressive activities at the Math Nights,
Defendants have violated the First Amendment. Jenkins asserts
that by denying her request to use the school mail delivery
system to distribute an informational petition, Brooks violated
the First Amendment. In the following analysis, we determine
whether Plaintiffs have alleged a violation of a clearly
established right.
A. Protected Expression
20
As an initial matter, we determine that the expression at
issue is protected under the First Amendment.8 The subject
matter, involving debate over a change in public school
curriculum, is an issue of public concern for the parents of
students enrolled in the school district. Further, activities
such as speaking, distributing literature, displaying signs,
petitioning for change, and disseminating information concerning
issues of public concern are central to the protections of the
First Amendment. See, e.g., Martin v. City of Struthers, 319
U.S. 141, 143 (1943) (“The right of freedom of speech and press
has broad scope. This freedom embraces the right to distribute
literature, and necessarily protects the right to receive it.”
(internal citation omitted)); see also Schenck v. Pro-Choice
Network, 519 U.S. 357, 377 (1997) (“Leafletting and commenting on
matters of public concern are classic forms of speech that lie at
the heart of the First Amendment.”); Boos v. Barry, 485 U.S. 312,
318 (1988) (recognizing public issue signs to be classic examples
of free speech); Meyer v Grant, 486 U.S. 414, 422 n.5 (1988)
(recognizing that the solicitation of signatures for a petition
drive involves protected speech). As neither party seriously
contests this issue, we turn to an evaluation of the speech
8
In pertinent part, the First Amendment provides that
“Congress shall make no law . . . abridging freedom of speech, or
of the press.” U.S. CONST. amend. I. It applies to the states by
virtue of the Fourteenth Amendment. See Gitlow v. New York, 268
U.S. 652, 666 (1925); Grosjean v. Am. Press Co., 297 U.S. 233,
244 (1936).
21
regulations implicated by the Plaintiffs’ allegations.
B. First Amendment Forum Analysis
For First Amendment purposes, “[t]he existence of a right of
access to public property and the standard by which limitations
upon such a right must be evaluated differ depending on the
character of the property at issue.” Perry Educ. Ass’n v. Perry
Local Educators Ass’n, 460 U.S. 37, 44 (1983). Thus, our
determination of the character of the forum in which expression
was regulated shapes our determination whether a clearly
established right existed and our ultimate conclusion whether a
constitutional violation occurred.
The Supreme Court has adopted a tripartite forum-based
framework to analyze First Amendment issues involving
governmentally owned property. “[T]he Court [has] identified
three types of forums: the traditional public forum, the public
forum created by governmental designation, and the nonpublic
forum.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473
U.S. 788, 802 (1985).
Traditional public forums are places that “‘by long
tradition or by government fiat have been devoted to assembly or
debate.’” Estiverne v. La. State Bar Ass’n, 863 F.2d 371, 376
(5th Cir. 1989) (quoting Cornelius, 473 U.S. at 802). This type
of forum includes “streets and parks which ‘have immemorially
been held in trust for the use of the public and, time out of
22
mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.’”
Perry, 460 U.S. at 45 (quoting Hague v. CIO, 307 U.S. 496, 515
(1939)). “The state’s efforts to exclude speakers from such
traditional public forums are subject to rigorous first amendment
scrutiny.” Estiverne, 863 F.2d at 376. In these areas, the
state regulation must withstand strict scrutiny, i.e., show that
a content-based prohibition serves a compelling state interest
and is narrowly tailored. See Perry, 460 U.S. at 45.9
In addition to traditional public forums, “a public forum
may be created by government designation of a place or channel of
communication for use by the public at large for assembly and
speech, for use by certain speakers, or for the discussion of
certain subjects.” Cornelius, 473 U.S. at 802 (reasoning that a
designated public forum exists when the government “intentionally
open[s] a nontraditional public forum for public discourse”); see
also Perry, 460 U.S. at 45. The state’s power “to restrict
speakers’ access to this category of public forum is subject to
the same first amendment constraints that apply to traditional
public forums.” Estiverne, 863 F.2d at 376; see also Perry, 460
U.S. at 45 (“The Constitution forbids a state to enforce certain
9
In traditional public forums, “[t]he state may also
enforce regulations of the time, place, and manner of expression
which are content-neutral, are narrowly tailored to serve a
significant government interest, and leave open ample alternative
channels of communication.” Perry, 460 U.S. at 45.
23
exclusions from a forum generally open to the public even if it
was not required to create the forum in the first place.”).
Despite the acceptance of a middle category between
traditional and nonpublic forums, there is some confusion over
the terminology used to describe this category. Two terms —
“designated public forum” and “limited public forum” — have been
utilized by the Supreme Court,10 our sister circuits,11 and this
10
At times, the Supreme Court has referred to limited
public forums as being a subcategory within a designated public
forum. See Widmar v. Vincent, 454 U.S. 263, 273-74 (1981)
(holding that a state university had created a limited public
forum by making its facilities generally available for the
activities of registered student groups); Int’l Soc’y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992) (“The second
category of public property is the designated public forum,
whether of a limited or unlimited character — property that the
State has opened for expressive activity by part or all of the
public.” (emphasis added)). In more recent cases, however, the
Court has used the phrase “limited public forum” to describe a
type of nonpublic forum of limited open access. See Rosenberger
v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829
(1995) (finding that a state university had created a limited
public forum by allowing registered student groups access to a
student activities fund, but applying the reasonableness test
used in nonpublic forum analysis). However, in Santa Fe
Independent School District v. Doe, the Supreme Court once again
used the phrase limited public forum to designate the
intermediate forum category, as opposed to a nonpublic forum.
See 530 U.S. 290, 304 (2000).
11
Our sister circuits have also failed to reach a
consensus on the distinction between a designated public forum
and a limited public forum. See Diloreto v. Downey Unified Sch.
Dist. Bd. of Educ., 196 F.3d 958, 965 (9th Cir. 1999)
(distinguishing between “a designated public forum subject to
heightened scrutiny or a limited public forum subject to the
reasonableness standard”); Whiteland Woods, L.P. v. Township of
W. Whiteland, 193 F.3d 177, 182 n.2 (3d Cir. 1999) (recognizing
distinction between designated and limited public forums and
applying the same constitutional requirements to both); see also
Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834, 842 n.5
24
court,12 yet there has not been agreement on their meaning.
Specifically, it has not been clear whether the terms could be
used interchangeably to describe the middle tier of forum, or in
fact described different types of forums subject to different
(6th Cir. 2000) (recognizing “that there has been some
uncertainty among the circuits as to whether there are one or two
categories of forums other than ‘public’ and ‘nonpublic,’ and
what protection is due to these categories”); Summum v.
Callaghan, 130 F.3d 906, 916 n.14 (10th Cir. 1997) (“We recognize
that the boundary between a designated public forum for a limited
purpose (e.g., Widmar) and a limited public forum (e.g.,
Rosenberger and Lamb’s Chapel) is far from clear. . . . We simply
note that a designated public forum for a limited purpose and a
limited public forum are not interchangeable terms.”).
12
In earlier opinions, this court did not distinguish in
our terminology between designated public forums and limited
public forums. See Tex. State Teachers Ass’n v. Garland Indep.
Sch. Dist., 777 F.2d 1046, 1050 (5th Cir. 1985) (using limited
public forum as the second category in the forum analysis); Hays
County Guardian v. Supple, 969 F.2d 111, 118 (5th Cir. 1992)
(finding that a university campus was “a limited public forum,
designated for the speech of students”). More recently, our
cases seem to accept the concept of a limited public forum as
being a subcategory of the designated public forum, the
regulation of which is subject to less rigorous scrutiny. In Doe
v. Santa Fe Independent School District, this court applied a
First Amendment forum analysis to prayers delivered at a high
school football game. While the majority and the dissent
disagreed about the application of the standards, both seemingly
accepted that limited public forums fell within some part of the
designated public forum category. Compare 168 F.3d 806, 819 (5th
Cir. 1999) (majority opinion) (“A designated public forum may, of
course, be limited to a specified class of speakers or to
discussion of specified subjects — thus the term limited public
forum. Nevertheless, the State does not create a designated
public forum by inaction or by permitting limited discourse.”
(internal citation omitted)), with id. at 831 (dissenting
opinion) (“A subset of designated public forums is the ‘limited
public forum.’ Such a forum is created when the government
limits the purpose of the forum by, for example, placing a
limitation on use by certain groups or on the discussion of
certain subjects.”).
25
levels of First Amendment scrutiny. The Supreme Court has
recently used the term “limited public forum” to describe forums
opened for public expression of particular kinds or by particular
groups. Good News Club v. Milford Central School, -- U.S. –,
121 S.Ct. 2093, 2100 (2001) (treating school facilities opened by
a school district for a wide, but not unlimited, range of public
expressive activities as a “limited public forum,” based on
agreement by the parties); Rosenberger, 515 U.S. at 829, 115 S.Ct
at 2516-17 (describing campus facilities opened to various
student groups as a “limited” forum). When a public body
establishes a limited public forum of this sort, that body may
restrict the expression that takes place within the forum so long
as the restriction (1) does “not discriminate against speech on
the basis of viewpoint” and (2) is “reasonable in light of the
purpose served by the forum.” Milford Central, 121 S.Ct. at 2100.
Because the level of scrutiny applied to government regulation of
speech in a “limited public forum” differs from that applied to
regulation of speech in a “designated public forum,” it now seems
clear that the two terms are not synonymous and should not be
used interchangeably.
Though the Supreme Court now clearly distinguishes
designated public forums subject to strict scrutiny from limited
public forums that are not, the line separating the two
categories remains undefined. In distinguishing between the two
types of forums, our precedent directs us to focus on two
26
factors: (1) the government’s intent with respect to the forum,
and (2) “the nature of the [forum] and its compatibility with the
speech at issue.” Estiverne, 863 F.2d at 378. Government intent
with regard to the forum is the critical starting point for
determining whether regulation of speech in a particular forum
should be subject to strict scrutiny. The Supreme Court has
consistently emphasized that public entities have broad
discretion to control access to and use of property or events
that are not traditional public forums. Ark. Educ. Television
Comm’n v. Forbes, 523 U.S. 666, 677 (1998) (“Designated public
fora, . . . are created by purposeful governmental action.”);
Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449. The government
does not automatically designate a public forum “by permitting
limited discourse” or “selective access.” Ark. Educ. Television,
523 U.S. at 677. The government creates a designated public
forum “only by intentionally opening a nontraditional forum for
public discourse." Cornelius, 473 U.S. at 805, 105 S.Ct. at
3449; see also Hays County Guardian v. Supple, 969 F.2d 111, 116
(5th Cir. 1992) (looking “to whether the government was motivated
by ‘an affirmative desire,’ or ‘express policy’ of allowing
public discourse on the property in question.”). If, simply by
opening a facility for limited public discourse, the government
were to designate a public forum, the regulation of which would
be subject to strict scrutiny, the government might elect not to
open such property for any public discourse. Ark. Educ.
27
Television, 523 U.S. at 681. That result would conflict with the
broad First Amendment policy of encouraging public discourse on
issues of community interest. Id. However, once the government
has designated a particular forum as appropriate for certain
types of speech or for speech on particular topics, “speech for
which the forum is designated is afforded protection identical to
the protection provided to speakers in a traditional public
forum.” Supple, 969 F.2d at 116; Ark. Educ. Television, 523 U.S.
at 677 (“If the government excludes a speaker who falls within
the class to which a designated public forum is made generally
available, its action is subject to strict scrutiny” (citations
omitted)).
Public property that is not by tradition or designation open
for public communication is governed by nonpublic forum
standards. See Estiverne, 863 F.2d at 376 (“[A] forum may be
considered nonpublic where there is clear evidence that the state
did not intend to create a public forum or where the nature of
the property at issue is inconsistent with the expressive
activity, indicating that the government did not intend to create
a public forum.”). A nonpublic forum, however, is not a private
forum, and because it is a government-sponsored medium of
communication, it is still subject to First Amendment
constraints. See Estiverne, 863 F.2d at 378 n.9. As with
limited public forums, “[t]he government can restrict access to a
nonpublic forum ‘as long as the restrictions are reasonable and
28
[are] not an effort to suppress expression merely because public
officials oppose the speaker’s view.’” Ark. Educ. Television,
523 U.S. at 677-78 (quoting Cornelius, 473 U.S. at 800).
C. Application of the First Amendment Forum Framework
Plaintiffs’ First Amendment claims can be broken down into
two analytical categories: the first involves Kirke’s and
Johnson’s rights at the Math Nights, and the second involves
Jenkins’s request to distribute a petition through the school
mail delivery system. As is evident, the Math Nights attended by
Kirke and Johnson and held in the various PISD middle schools are
not historically recognized as “traditional” public forums akin
to streets or parks. Similarly, the school delivery system by
which Jenkins wished to distribute her petition is not a
“traditional” public forum. See Perry, 460 U.S. at 45. Whether
these forums are better characterized as designated public forums
subject to strict scrutiny, or limited public / nonpublic forums
is a more difficult question.
1. Forum Analysis: Math Nights
To determine whether a forum such as a Math Night is a
designated public forum as opposed to a limited or nonpublic
forum, we must first ask whether the Math Nights were
purposefully created to facilitate discussion or debate on math
curriculum. The Court has recognized that “school facilities may
be deemed to be [designated] public forums only if school
authorities have ‘by policy or by practice’ opened those
29
facilities ‘for indiscriminate use by the general public,’ or by
some segment of the public, such as student organizations.”
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988)
(citations omitted); see also Widmar v. Vincent, 454 U.S. 263,
267-68 (1981) (finding university facilities to be limited (i.e.,
designated) public forums). Additionally, however, the Court has
held that events such as school board meetings can rise to the
level of designated public forums, such that regulation of public
expression at such meetings would be subject to strict scrutiny.
City of Madison, 429 U.S. at 174-75 (treating the school board
meeting at issue as a designated public forum); Estiverne, 863
F.2d at 378 (noting that the Supreme Court had held “a public
school board meeting” to be a designated public forum). In City
of Madison, the Court noted that the public facilities in
question had been "opened [publicly as] a forum for direct
citizen involvement" and that the prohibited speech involved a
relevant matter of public concern. City of Madison, 429 U.S. at
174-75. Thus, when school district authorities elect to open
public school facilities after school hours for public meetings
during which public issues will be discussed in a manner similar
to a limited-topic school board meeting, the district officials
have designated a public forum for the limited time and topic of
the meeting. Whether Math Nights were such a designated public
forums similar to school board meetings subject to strict
scrutiny or more limited public forums subject to less rigorous
30
judicial review depends on what the PISD intended to accomplish
through Math Nights. If the PISD intended to present information
about the implementation of the pilot Connected Math program and
what changes parents of children in the program might expect,
such a limited forums would not rise to the level of a designated
public forum. If, however, the PISD intended to allow and
respond to questions relating to the propriety of Connected Math
as a curricular option, and intended to allow debate over the
merits of the program, then Math Nights would seem more akin to
school board meetings and more rigorous scrutiny of restrictions
on speech related to math curriculum would be appropriate.
Because this summary judgment record is not clear as to what
the PISD intended with respect to Math Nights at the time that
the events were organized, we are presently unable to categorize
their status as a matter of law. Construing the evidence in the
light most favorable to Plaintiffs, a reasonable fact-finder
could conclude that the PISD intended to create a forum to
facilitate discussion of math curriculum, an important issue of
public concern. The agenda handed out to parents as they entered
the building specifically allotted time for questions and
answers, as well as small group discussion with teachers and
district administrators. Moreover, affidavit testimony from
Kirke states that Defendants Burleson and Wohlgehagen initially
allowed Kirke to distribute materials relating to Connected Math
at the first Math Night, held at Haggard Middle School. Such
31
conduct supports a reasonable inference that Defendants initially
intended to allow open, yet structured, expression on math
curriculum reform at Math Nights. Finally, as the district court
noted, it is reasonable to infer from a letter written by Plano
Board of Trustees member Muns that the PISD intended Math Nights
to provide “opportunities for people to express their concerns,
positively or negatively, regarding the Connected Math series.”
Cumulatively, this evidence, when viewed in the light most
favorable to the Plaintiffs, suggests that Math Nights could have
been intended as small-scale school board meetings, at which a
math curriculum pilot program was to be discussed and information
on its merits provided. Such a meeting could properly be
considered a designated public forum, such that regulation of
expression on the theme of the meeting would be subject to strict
scrutiny.
But the record also contains evidence suggesting that the
PISD intended the scope of Math Nights to be much more limited.
The invitation used to invite parents to attend Math Nights was
quite general and made no mention of open debate or presentation
of materials by individuals other than district-officials.
Kirke, for example, was invited to Haggard Middle School by a
flyer that simply stated: “You are invited to Haggard Math Night
for parents.” Moreover, Defendants state in their affidavits13
13
Of course, Defendants’ self-serving statements regarding
the purpose of the meeting are not enough to prove “intent” on
32
that Math Nights were organized to educate parents, not to
provide a forum to debate the issue of Connected Math. Finally,
Defendants’ attempts to restrict distribution of materials at the
Math Night, while raising the constitutional concerns about
viewpoint discrimination that will be addressed later, also
evince an intent to restrict the openness of the forum.
The uncertainty as to the PISD’s intent with respect to Math
Nights also affects our analysis under the “extent of the use
granted” prong. This court has phrased the analytical approach
to this element in common-sense terms: “[D]oes the character of
the place, the pattern of usual activity, the nature of its
essential purpose and the population who take advantage of the
general invitation extended make it an appropriate place for
communication of views on issues of political and social
significance[?]” Estiverne, 863 F.2d at 378-79 (citations and
internal quotations omitted) (alterations in original); see also
Doe, 168 F.3d at 820. Curricular discussions are appropriate in
school buildings and could be part of a larger pattern of
curricular reform debate. By the same token, a school district
could have a reasonable interest in educating parents on the
implementation of a pilot curricular program without the
distraction of having to defend the merits of the program. The
difficulty in this case is that we do not know clearly what the
this matter. See Doe, 168 F.3d at 820.
33
PISD intended to accomplish through Math Nights.
Our inability to resolve the forum question on this summary
judgment record does not affect our resolution of this appeal,
however, because Plaintiffs have alleged viewpoint discrimination
that would, if proven, violate the First Amendment whether Math
Nights were designated or limited/nonpublic forums. See Hobbs v.
Hawkins, 968 F.2d 471, 481 (5th Cir. 1992)(noting that “forum
analysis is not readily susceptible to summary dismissal
[pursuant to Rule 12(b)(6)] . . . . especially when the complaint
alleges viewpoint discrimination, because viewpoint
discrimination violates the First Amendment regardless of the
forum’s classification.”)
2. Forum Analysis: The School Mail Delivery System
Analysis of Jenkins’s request to have her “MathChoice”
flyers distributed through the school mail delivery system also
turns on whether the school mail system is a designated public
forum or a limited/nonpublic forum. In Perry, the Supreme Court
held that a school district’s internal mail system was a
nonpublic forum. See 460 U.S. at 47. The Court found that
because the school district had not opened its mail system up to
the general public, it was not a traditional public forum or a
designated public forum. Further, the Court held that the grant
of selective access to organizations such as the YMCA and the Cub
Scouts did not require the school to open up the system to the
union literature at issue in that case. See id. Because the
34
PISD in this case has not opened up its school mail delivery
system to the general public, under Perry, it is properly
considered a limited/nonpublic forum.
We recognize that on one occasion, this circuit narrowly
construed Perry in reference to another dispute involving a
school mail system. See Ysleta Fed’n of Teachers v. Ysleta
Indep. Sch. Dist., 720 F.2d 1429, 1433 (5th Cir. 1983). In
Ysleta, this court distinguished Perry, finding that a school
district had adopted a policy to open the mail system to “all
employee organizations.” The court found that once the school
opened its mail system to information from all employee programs,
it was a designated public forum for that purpose. See id.
However, in Texas State Teachers Ass’n v. Garland
Independent School District, this court followed the reasoning in
Perry. See 777 F.2d 1046, 1053 (5th Cir. 1985). The Garland
court looked at the extent of openness in the school mail system
and determined that the selective access of certain groups did
not transform the system into an open public forum for use by the
petitioning “employee organization.” See id. at 1052. We find
the instant case to be more analogous to Garland, as there is no
evidence that the PISD’s selective opening of the school mail
system was intended to create a designated public forum for use
by the general public. Unlike Math Nights, there is no evidence
that the PISD intended the school mail system to facilitate
debate on issues of public concern. Therefore, under Perry and
35
Garland, we hold that the school mail delivery system is a
nonpublic forum.
D. Analyzing Plaintiffs’ Constitutional Allegations
Kirke and Johnson have asserted that their expressive
activities were targeted because of their viewpoint critical of
Connected Math. Jenkins has asserted that the denial of her
MathChoice flyer and petition was because of the views expressed
in the document. It is well settled that viewpoint
discrimination is a clearly established violation of the First
Amendment in any forum. “It is axiomatic that the government may
not regulate speech based on its substantive content or the
message it conveys.” Rosenberger v. Rector & Visitors of Univ.
of Va., 515 U.S. 819, 828, 829 (1995) (finding that viewpoint
discrimination is a form of content discrimination, in which “the
government targets not subject matter, but particular views taken
by speakers on a subject.” (citing R.A.V. v. City of St. Paul,
505 U.S. 377, 391 (1992))). “Viewpoint discrimination is thus an
egregious form of content discrimination. The government must
abstain from regulating speech when the specific motivating
ideology or the opinion or perspective of the speaker is the
rationale for the restriction.” Id. Even if Math Nights were
determined to be nonpublic forums, government actors may not
discriminate on the basis of the views espoused. See Hobbs, 968
F.2d at 481 (“[V]iewpoint discrimination violates the First
Amendment regardless of the forum’s classification.”).
36
We are satisfied that Plaintiffs have alleged that a First
Amendment right to be free from viewpoint discrimination exists
and that this right was clearly established. The final component
of our first prong of the qualified immunity analysis requires us
to determine “whether the record shows that the violation
occurred, or at least gives rise to a genuine issue of material
fact as to whether the defendant actually engaged in the conduct
that violated the clearly-established right.” Morris v.
Dearborne, 181 F.3d 657, 665 (5th Cir. 1999) (internal quotations
and citations omitted). If we determine that genuine issues of
material fact exist regarding whether these Defendants violated
the First Amendment, this determination deprives us of
jurisdiction on this interlocutory appeal. See Palmer v.
Johnson, 193 F.3d 346, 353 (5th Cir. 1999).
1. Viewpoint Discrimination at Math Nights
The district court determined that from the summary judgment
evidence adduced, inferences could be drawn that Defendants
Davis, Wohlgehagen, Burleson, Criswell, and Sellers acted because
of content-based14 discrimination, and thus, for the purposes of
evaluating qualified immunity, a constitutional violation had
been alleged. Viewing the evidence in the light most favorable
to Kirke and Johnson, we conclude that genuine issues of material
14
The district court found the discrimination to be
“content” based. We interpret this finding as being more
properly characterized as “viewpoint”-based discrimination.
37
fact exist as to whether these Defendants engaged in the alleged
viewpoint discrimination; thus, we are deprived of jurisdiction
on this interlocutory appeal.
First, a genuine issue of material fact exists as to whether
Kirke was, in fact, prohibited from distributing information to
the parents in attendance at both Haggard Math Night and Wilson
Math Night. Kirke claims he was repeatedly instructed to cease
distributing information to the parents at Haggard Math Night.15
He asserts that Wohlgehagen even asked him to leave the meeting.
Defendants assert that because Kirke had the opportunity to pass
out his materials before and after the meeting, and because he
was able to do so, there was no infringement on free expression.
In their affidavits, Defendants do not address whether Kirke’s
allegations regarding their actions at Math Night are accurate.
Kirke also claims that at the Wilson Math Night he was instructed
from the outset that he was not to distribute any information to
parents. Defendants again argue that Kirke was able to
distribute this information before or after that meeting.
Second, if Kirke’s materials were, in fact, prohibited, a
genuine issue of material fact exists as to whether Kirke’s
materials were prohibited because of the views expressed or
because of another permissible reason. Kirke asserts that when
15
In his affidavit submitted in opposition to Defendants’
motion for summary judgment, Kirke asserts that he brought to the
August 25, 1998 meeting two documents focused on the perceived
difficulties with Connected Math.
38
he arrived at Haggard Math Night, he placed his Connected Math
materials next to the PISD’s Connected Math materials.
Initially, there was no concern over his distribution of
information concerning Connected Math. Eventually, Wohlgehagen
reviewed the materials that Kirke placed on the table. According
to Wohlgehagen’s affidavit, he states, “I reviewed Mr. Kirke’s
materials and informed him that his materials did not relate to
the new math curriculum at Haggard M[iddle] S[chool].”
Wohlgehagen then asked Kirke to move his materials critical of
Connected Math so that they would not be confused with the
information provided by the PISD.
Kirke removed his materials from the table but continued
speaking with parents. Kirke asserts in his affidavit that it
was because he was successfully meeting with parents and
distributing his information critical of Connected Math that
Defendants Wohlgehagen, Burleson, and Davis told him to cease
distributing the information. Kirke alleges that the motivation
for this request to stop disseminating information and the order
to actually leave the meeting was likely because Wohlgehagen and
Burleson were concerned with the critical views being expressed
to the other parents. Kirke points out that the school officials
had not initially banned his materials, but only did so after
reviewing them.16 Defendants assert, however, that the reason
16
Further, Kirke points to the fact that, as this was
several minutes before the meeting was to begin, he was not
39
for their actions was that Kirke had not requested prior
permission from school officials to distribute materials.17 This
question regarding Defendants’ motivation creates a genuine issue
of material fact that cannot be decided on this appeal.
Third, an issue of fact exists regarding whether Davis and
Sellers, in fact, ordered Kirke to put away his sign at the
Wilson Math Night, and whether they did so because of the
viewpoint expressed. Kirke alleges in his affidavit that Davis
and Sellers told him that he would not be allowed to hold his
sign or to attempt to communicate the information contained on
his sign by placing the sign anywhere on the school premises.
Kirke alleges that Davis and Sellers instructed him to remove the
sign or turn it over so that other parents would not be able to
interfering with the PISD speakers. In addition, following what
he understood to be the purpose of the meeting, he was providing
information on the subject of Connected Math. There is no
allegation by Defendants that Kirke’s actions were disruptive to
the Math Night program itself.
17
This also raises another genuine factual dispute as to
whether Kirke received permission from Burleson on the morning of
August 25, 1998 to distribute information to the parents at the
Haggard Math Night. Kirke alleges he met with Burleson the
morning of the meeting and explained that he was going to pass
out materials on Connected Math that evening. Kirke asserts that
Burleson had no objection at the time. Burleson denies the
meeting. This fact question is genuine and material because
Defendants argue that they did not prohibit Kirke from
distributing information because of viewpoint, but because he
failed to receive prior permission from school officials.
Further, it supports Kirke’s viewpoint argument that the school
officials were not concerned with literature being distributed to
parents regarding Connected Math until after Wohlgehagen realized
that the material was critical of Connected Math.
40
read the message contained on the sign critical of Connected
Math. Davis and Sellers respond that his poster was available
for the parents to see at the meeting. Again, whether Defendants
acted in the manner Kirke alleges and whether Defendants acted
because of the method of expression or the views expressed are
genuine issues of material fact that we cannot decide on this
appeal.18
Fourth, a general issue of material fact exists as to
whether Johnson was prohibited from distributing information at
the Hendrick Math Night. Johnson had brought materials
evaluating the Connected Math program and textbook. He asserts
that Criswell told him to stop providing materials to the parents
at the meeting. Johnson asserts that no literature in opposition
to Connected Math was allowed to be displayed. Defendants argue
that Johnson “was still allowed to distribute his non-school
materials ‘some 10-15 minutes’ before the start of the math night
program. . . . He also had the ability to distribute his
materials and talk to other parents and teachers after the
program concluded.” As with Kirke, we are not permitted to
resolve this genuine factual discrepancy regarding a material
fact on appeal.
Fifth, if Johnson’s materials were prohibited, a genuine
18
This argument also applies to Kirke’s assertion that
Defendants Davis and Wohlgehagen interfered with his attempt to
collect signatures prior to and after the meeting, seeking
support among parents to evaluate the Connected Math program.
41
issue of material fact exists as to whether Johnson’s materials
were prohibited because of the views expressed or because of
another permissible reason. In support of viewpoint
discrimination, Johnson points to Criswell’s hostile response to
his attempt to communicate with other parents about his concerns
with Connected Math. At the Hendrick Middle School meeting,
Criswell allegedly sprinted toward Johnson and shouted at him to
stop distributing the materials he had brought to the meeting.
Johnson alleges that Criswell was speaking to him four inches
away from his face. Criswell stated that Johnson could not hand
out materials unless he had reviewed them and approved them.
Johnson states that when he offered Criswell the opportunity to
review the Texas Education Agency report on the Connected Math
textbook, Criswell forcefully declined to review it. According
to Johnson’s affidavit, Criswell informed Johnson that he could
not distribute literature concerning the subject matter of the
parents’ meeting and that he should leave the building. Criswell
denies raising his voice and denies asking Johnson to leave the
school property. Again, questions of fact, motivation, and
policy create genuine issues of material fact.
Sixth, a genuine issue of material fact exists as to whether
the email memorandum was, in fact, authored by Davis19 and
whether the email supports Kirke and Johnson’s argument that
19
See supra note 2.
42
school officials were targeting the views of parents like Kirke
and Johnson. The memorandum specifically references individuals
attempting “to circulate a petition or pass out material related
to the Connected Math Program.” The memorandum was allegedly
created the day after the Haggard Middle School meeting and the
incident involving Kirke. Davis denies authoring the email
memorandum.
Finally, there is a genuine issue of material fact regarding
whether Defendants Davis, Wohlgehagen, Burleson, Criswell, and
Sellers restricted the distribution of information critical of
Connected Math because, as they allege, they were following a
content-neutral policy of disallowing all literature not pre-
screened by school authorities. This justification could present
a legitimate content-based (but not viewpoint-based) distinction
capable of surviving First Amendment scrutiny. However, from a
review of the summary judgment record, it appears that the
policies on which these Defendants rely were not enacted until
1999, several months after the incidents at Math Nights. The
excerpts of the school policies in the summary judgment record
indicate that the policies existing at the time did not govern
handouts disseminated by non-students to non-students.20 This
20
At the time of the incident, the only policies that
were in existence apparently relate to pre-clearance of materials
delivered to students. Two policies were included in the record
accompanying Plaintiffs’ affidavits. The first is the “GKA
(Local)” policy entitled “Community Relations: Conduct on School
Premises,” which was issued on February 17, 1997. This policy
43
creates a significant and material fact question posed by the
Defendants as to whether the Defendants were acting under a valid
school policy at the time of the Math Nights.
Therefore, for the limited purpose of evaluating a denial of
summary judgment on qualified immunity grounds, we conclude that
genuine issues of material fact exist supporting the allegation
that Defendants Davis, Wohlgehagen, Burleson, Criswell, and
Sellers violated Kirke’s and Johnson’s First Amendment rights.
See, e.g., Burnham v. Ianni, 119 F.3d 668, 676 (8th Cir. 1997);
Searcey v. Harris, 888 F.2d 1314, 1324 (11th Cir. 1989); We the
People, Inc. v. Nuclear Regulatory Comm’n, 746 F. Supp. 213, 219
(D.D.C. 1990). These questions deprive us of jurisdiction, and
we must dismiss these Defendants’ appeal. See, e.g., Palmer v.
Johnson, 193 F.3d 346, 353 (5th Cir. 1999); Smith v. Brenoettsy,
references the “FMA (Local)” policy entitled “Student Activities:
Publications and Prior Review,” which was issued on October 6,
1997 and which only governs student activities. Both of these
policies on which Defendants apparently rely cover student
publications and publications provided to students, but not
materials provided to non-students.
Further, Defendants’ inclusion in the record of updated
versions of the policies dated April 26, 1999 does not help
resolve the issue. While these new policies would control our
analysis if they had been in effect at the time of the fall 1998
Math Nights, apparently they were enacted soon after the
incidents at Math Nights. In fact, Defendants’ reliance on
policies that were enacted after the incidents creates an issue
of material fact about the date on which the policies went into
effect and whether the old policies covered the literature
distributed to parents at the Math Nights. At the summary
judgment stage, we need not resolve which policies were in effect
during the Math Nights, but taking the evidence in the light most
favorable to Kirke and Johnson, we are convinced that genuine
material facts exist that can only be resolved at trial.
44
158 F.3d 908, 912 (5th Cir. 1998); Naylor v. State of La., Dept.
of Corr., 123 F.3d 855, 857 (5th Cir. 1997).21
To be clear, the PISD was entitled to limit Math Nights to a
formal presentation on the implementation of the Connected Math
pilot program. See Rosenberger, 515 U.S. at 829 (“The
necessities of confining a forum to the limited and legitimate
purposes for which it was created may justify the State in
reserving it for certain groups or for the discussion of certain
topics.”). If the PISD intended to limit the event in this way,
it could have constitutionally placed restrictions on expressive
communication at Math Nights so long as those restrictions were
reasonable in light of the purpose of the forum and did not
21
Defendants also assert that, even assuming a
constitutional right was violated, their actions were objectively
reasonable. To determine objective reasonableness for qualified
immunity, we consider whether a reasonable school official would
have believed his or her conduct to be lawful in light of the
clearly established law prohibiting viewpoint discrimination.
See Anderson v. Creighton, 483 U.S. 635, 641 (1987). At the
summary judgment stage, we are compelled to view the facts
alleged in the light most favorable to Kirke and Johnson.
As described above, Defendants Davis’s, Wohlgehagen’s,
Burleson’s, Criswell’s, and Sellers’s actions raise genuine
issues of material fact regarding whether their actions were
directed at suppressing a viewpoint critical of the Connected
Math curriculum. The law requires that qualified immunity be
denied officials who transgress those rights of which a
reasonable person would have known. See Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). A reasonable person in the Defendants’
position would have been aware that the First Amendment forbids
the type of viewpoint discrimination in which they are alleged to
have been engaged. Whether these Defendants did engage in
viewpoint discrimination in an objectively unreasonable manner
involves resolving the fact issues that are unreviewable on this
interlocutory appeal. Without jurisdiction, we are required to
dismiss the appeal.
45
suppress a certain viewpoint. The fact that the PISD could have
controlled expression at Math Nights in a reasonable, viewpoint-
neutral manner does not necessarily mean that it did so in the
instant case. While the PISD may have intended a limited
presentation at Math Nights, it might also have intended to
designate Math Nights as an open forum for debating math
curriculum. In that case, any limit on speech related to math
curriculum would be subject to strict scrutiny. Since our close
examination of the summary judgment evidence surrounding Math
Nights raises genuine issues of material fact regarding
viewpoint-based discrimination directed at the First Amendment
activities of Kirke and Johnson, we do not have appellate
jurisdiction over Defendants’ interlocutory appeal from the
denial of summary judgment based on qualified immunity with
respect to the allegations made by Kirke and Johnson related to
Math Nights.
3. Viewpoint Discrimination in the School Mail Delivery System
The question of viewpoint discrimination also arises in
Brooks’s denial of Jenkins’s request to use the school mail
delivery system to distribute MathChoice flyers. As stated supra
in Part III, our appellate jurisdiction to decide the issue of
qualified immunity when the district court has determined that
issues of material fact preclude summary judgment is quite
limited. First, regarding whether Jenkins has established a
violation of a clearly established right, “[w]e assume
46
plaintiff’s version of the facts is true, then determine whether
those facts suffice for a claim of [the constitutional violation
alleged].” Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir.
2000). Second, regarding whether Brooks acted in an objectively
unreasonable manner, “we review the complaint and record to
determine whether, assuming that all of [Jenkins’s] factual
assertions are true, those facts are materially sufficient to
establish that defendant[] acted in an objectively unreasonable
manner.” Id.
Even under our circumscribed review of Jenkins’s factual
assertions, we cannot conclude that the requisite viewpoint
discrimination exists in Brooks’s denial of Jenkins’s request to
distribute the MathChoice petition through the school mail
delivery system. Therefore, we must reverse the district court’s
denial of summary judgment based on qualified immunity on the
claim.
Under Perry and Garland, it is established that school
officials may regulate school mail systems through content-
neutral means and on the basis of speaker identity. See Perry,
460 U.S. at 44; Tex. State Teachers Ass’n v. Garland Indep. Sch.
Dist., 777 F.2d 1046, 1050 (5th Cir. 1985). In the instant case,
Brooks contends that she was following a non-content-based school
policy that states: “Only non-profit groups providing programming
or services for students are allowed to send flyers or
47
information home with students.”22
Jenkins responds that MathChoice is such a non-profit group
and thus fits within the school policy. We disagree that
MathChoice fits within the type of group allowed access to the
school mail delivery system. Further, the subject matter of the
flyer — in this case a politically oriented petition directed to
parents — is not of a similar character to any previous use of
the school mail delivery system. Cf. Perry, 460 U.S. at 48
(recognizing that even in a limited public forum, “the
constitutional right of access would in any event extend only to
other entities of similar character.”); see also Garland, 777
F.2d at 1052.
Evaluating the MathChoice organization and the proposed
flyer in the context of the school policy, we are convinced that
no viewpoint discrimination exists. First, MathChoice, while a
non-profit organization, was created to organize parents in the
PISD and not to provide programming or services to students.
Whether characterized as a community organizing group or a
22
We recognize that Brooks has not submitted an official
copy of this policy in the record. Further, we recognize that
when Jenkins requested copies of the official policy from Brooks,
she was referred to the “FMA (Local)” policy and the “GKA
(Local)” policy, see supra note 21, which do not explicitly cover
the school mail delivery system. This discrepancy, however, does
not change our determination. The touchstone of our First
Amendment analysis is whether the regulation of a nonpublic forum
is accomplished in a reasonable viewpoint-neutral manner. As
discussed above, we are satisfied that access to the school mail
delivery system was regulated in such a manner.
48
narrowly focused political advocacy group, the organization’s
sole purpose was to effect change in the PISD. This fact
distinguishes MathChoice from the other organizations that have
used the school mail delivery system. Second, the subject matter
of the flyer is not a program or service for students. The flyer
and its call for community involvement is directed at mobilizing
and informing parents. Finally, petitions for political or
community action are not similar in kind to the types of services
provided in previous flyers that were sent through the school
mail delivery system.
Identity-based and subject matter distinctions in a
nonpublic forum are perfectly permissible so long as they are not
a covert attempt to suppress a particular viewpoint and are
reasonable in light of the purpose of the forum. In this case,
the PISD policy is a reasonable attempt to regulate a medium of
communication that involves distributing information through
students to take home to their parents. We conclude, therefore,
that Brooks’s decision to deny access to the school mail delivery
system to a political petition was thus not based on the
viewpoint expressed.
Even assuming, arguendo, that viewpoint discrimination could
be alleged, we conclude that Brooks’s actions in denying
Jenkins’s request to distribute a political petition to be
objectively reasonable. See Perry, 460 U.S. at 44; Garland, 777
F.2d at 1050. Accordingly, in regard to Brooks, we reverse the
49
district court’s denial summary judgment on qualified immunity
grounds.
VII. CONCLUSION
For the foregoing reasons, we DISMISS for lack of
jurisdiction Defendants Davis, Wohlgehagen, Burleson, Criswell,
and Sellers’s appeal from the denial of summary judgment on
qualified immunity grounds. The costs of this appeal (other than
Defendant Brooks’s costs) shall be borne by those Defendants. We
REVERSE the denial of summary judgment on qualified immunity
grounds as to Defendant Brooks. Defendant Brooks’s costs shall
be borne by Plaintiffs.
50