Chiu v. Plano Independent School District

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