Porter v. Ascension Parish School Board

United States Court of Appeals
Fifth Circuit
F I L E D
In the United States Court of Appeals
December 10, 2004
For the Fifth Circuit
Charles R. Fulbruge III
_________________________ Clerk

No. 04-30162

_________________________

ADAM PORTER, ET AL,
Plaintiffs,
ADAM PORTER,

Plaintiff - Appellant,

versus

ASCENSION PARISH SCHOOL BOARD, et al.,

Defendants - Appellees.
_________________________

Appeal from the United States District Court
For the Middle District of Louisiana
_________________________

Before KING, Chief Judge, HIGGINBOTHAM, and DAVIS, Circuit
Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This case highlights the difficulties of school administrators

charged to balance their duty to provide a safe school with the

constitutional rights of individual students when violence in

schools is a serious concern. We must decide whether officials

within the Ascension Parish School District responded appropriately

in removing Adam Porter from East Ascension High School and

requiring him to enroll in an alternative school for a sketch

depicting a violent siege on the EAHS that he had drawn two years
earlier, and was accidentally taken to school by his younger

brother. We hold that the only defendant left in the case, EAHS

principal Conrad Braud, is entitled to qualified immunity with

respect to Adam’s First Amendment claim, and affirm the district

court’s grant of summary judgment.

I

A

When Adam Porter was fourteen years old, he sketched a drawing

of his school, East Ascension High School, in the privacy of his

home. It was crudely drawn, depicting the school under a state of

siege by a gasoline tanker truck, missile launcher, helicopter, and

various armed persons. The sketch also contained obscenities and

racial epithets directed at characters in the drawing, a

disparaging remark about EAHS principal Conrad Braud, and a brick

being hurled at him. After completing the sketch, Adam showed it

to his mother, Mary LeBlanc, his younger brother, Andrew Breen, and

a friend, Kendall Goudeau, who was living with the family at the

time. The sketchpad was then stored in a closet in Adam’s home.

Two years later, Andrew Breen, then age twelve, rummaged

through the closet looking for something to draw on, and came upon

Porter’s sketchpad. Andrew drew a llama on a blank page in the

pad, and then took the pad to his school, Galvez Middle School, to

show his drawing to his teacher. On March 15, 2001, while riding

the bus on his way home from school, Andrew allowed a fellow

student to see his drawing. While flipping through the pages of

2
the pad, the student came upon the two-year old drawing by Adam and

showed it to the bus driver, Diane McCauley, exclaiming, “Miss

Diane, look, they’re going to blow up EAHS.” McCauley immediately

confiscated the pad. On the following morning, McCauley took the

pad to Linda Wilson, the principal of Galvez Middle School, and

Myles Borque, the in-school suspension coordinator. After viewing

Adam’s drawing, Wilson called Andrew to her office where he was

questioned about the drawing and his book bag was searched. In

response to questioning by Wilson and Borque, Andrew admitted that

Adam had drawn the picture. Andrew was then suspended for

possessing the drawing on school grounds.

The sketchpad was sent to EAHS where school resource officer

Robert Rhodes interrupted a meeting to show the drawing to

principal Conrad Braud and assistant principal Gwynne Pecue.

Alarmed, Braud and Pecue immediately summoned Adam to Rhodes’s

office where he readily admitted that he had drawn the sketch two

years earlier. School officials then searched Adam’s book bag and

his person and found a box cutter with a one-half inch exposed

blade in his wallet. The officials also found notebooks in Adam’s

bag containing references to death, drugs, sex, depictions of gang

symbols, and a fake ID. Adam explained that he used the box

cutter in his after-school job at a local grocery store. Although

unclear as to when, the record indicates that he later explained

that the references to death were part of a homework assignment,

and that the “gang symbols” referred only to a group of young men

3
with whom Adam associated, and who Braud did not consider to be a

threat.

Adam’s mother, Mary LeBlanc, was contacted, and after arriving

at EAHS, was told that Adam was being recommended for expulsion.

Adam and his mother were then allowed to leave carrying a written

recommendation for expulsion and instructions for Adam to remain at

home until a hearing could be held. No hearing date was

immediately set. Shortly thereafter, Officer Rhodes obtained a

warrant to arrest Adam for “terrorizing” EAHS, and Adam was held

for four nights at the Donaldsonville jail on charges of

terrorizing the school and carrying an illegal weapon.

A week later, on March 23, 2001, Mary LeBlanc met with Linda

Lamendola, hearing officer for the Ascension Parish School Board.

LeBlanc was advised that expulsion hearings were regularly decided

in the school’s favor, and that Adam could immediately enroll in

the Ascension Parish Alternative School and continue his education

if she waived the hearing. LeBlanc signed the waiver form provided

by Lamendola, and Adam was enrolled in the alternative school. The

following August, Adam was allowed to re-enroll at EAHS, but

dropped out in March, 2002.

B

Mary LeBlanc filed suit on behalf of Adam and Andrew against

the Ascension Parish School Board, Robert Cloutare in his official

capacity as superintendent of the School Board, Conrad Braud,

individually and in his official capacity as Principal of EAHS, and

4
Linda Wilson, individually and in her official capacity as

principal of Galvez Middle School. The suit, brought under 42

U.S.C. § 1983, alleged violations of the First, Fourth, and Eighth

Amendments, and a denial of equal protection and procedural due

process and rights secured by 20 U.S.C. § 1415.1 Defendants filed

a motion for summary judgment asserting that no constitutional

violation could be shown as a matter of law and claiming the

defense of qualified immunity.

The district court dismissed without objection plaintiffs’

equal protection, Eighth Amendment, and § 1415 claims, and

plaintiffs agreed to dismiss all claims against Linda Wilson. The

district court analyzed Adam’s First Amendment claim, and concluded

that his drawing was not entitled to protection under any of three

different standards.2 The court then disposed of Adam’s Fourth

Amendment claim, finding that the school’s search and detention of

him was reasonable.3 The court next found that Adam’s procedural

due process claim was unavailing based on Adam’s admission that he

1
20 U.S.C.A. § 1415 (2000) (providing parents of disabled children with
certain procedural safeguards regarding the evaluation, placement and education
of their children within the public school system).
2
Porter v. Ascension Parish Sch. Bd., 301 F. Supp. 2d 576, 582-89 (M.D. La.
2004). In particular, the district court analyzed whether Adam’s drawing was
protected under (1) the “material and substantial interference” standard set
forth in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), and
LaVine v. Blaine Sch. Dist., 257 F.3d 981 (9th Cir. 2001); (2) the “true threat”
standard set forth in Watts v. United States, 394 U.S. 705 (1969), and Doe v.
Pulaski County Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002); and (3) our non-
viewpoint based approach set forth in Canady v. Bossier Parish Sch. Bd., 240 F.3d
437 (5th Cir. 1996).
3
Porter, 301 F. Supp. 2d at 589-92.

5
had drawn the sketch and that the items found in his book bag and

on his person belonged to him, and LeBlanc’s signed waiver of his

right to a hearing.4 Next, the court found that even if Adam had

established a violation of his rights, Braud was entitled to

qualified immunity.5 Finally, the court held that Adam had

produced no evidence of a policy or custom on the part of the

Ascension Parish School Board leading to a violation of his rights,

precluding his official capacity claims against Braud and

Cloutare.6

Based on these findings, the district court entered summary

judgment for the defendants. Adam filed a timely notice of appeal

from this judgment.

II

“We review the grant of a motion for summary judgment de

novo.”7 Summary judgment is appropriate when “the pleadings and

the evidence demonstrate that no genuine issue of material fact

exists and the movant is entitled to judgment as a matter of law.”8

In the present case, the district court granted the defendants’

motion for summary judgment on grounds that plaintiffs had failed

4
Id. at 592-95.
5
Id. at 595-97.
6
Id. at 597-98.
7
Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004).
8
Id. (citing FED. R. CIV. P. 56(c)).

6
to raise a material fact issue with respect to any of their

constitutional claims, and on the alternative ground that defendant

Braud was entitled to summary judgment based on qualified

immunity.9

Although denominated in the alternative, these holdings follow

our analysis for determining whether a state official is entitled

to qualified immunity. When reviewing a grant of summary judgment

based on qualified immunity, we must first determine whether a

plaintiff successfully alleged facts showing the violation of a

constitutional right by state officials, and whether there is a

genuine issue of material fact that the violation occurred.10 “If

there is no constitutional violation, our inquiry ends.”11

If we determine that the plaintiff’s alleged facts make out a

constitutional violation, we then ask whether the right allegedly

9
Adam did not brief on appeal the argument that the district court erred
in granting summary judgment for Braud and Cloutare on claims raised against them
in their official capacity. Therefore, we will not address this argument. See
Proctor & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004)
(“Failure adequately to brief an issue on appeal constitutes waiver of that
argument.”).
10
See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“A court required to rule
upon the qualified immunity issue must consider, then, this threshold question:
Taken in the light most favorable to the party asserting injury, do the facts
alleged show the officer’s conduct violated a constitutional right? This must
be the initial inquiry.”); Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555,
561 (5th Cir. 2003) (when considering whether to grant a summary judgment motion
based on qualified immunity, district court must determine whether a material
fact question exists regarding whether the defendant engaged in conduct violating
the plaintiff’s clearly established rights); Barrow v. Greenville Indep. Sch.
Dist., 332 F.3d 844, 846 (5th Cir. 2003) (finding that first question in
qualified immunity analysis is whether, “viewing the facts in a light most
favorable to the plaintiff . . . the plaintiff has alleged the violation of a
constitutional right”).
11
Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003).

7
violated was “clearly established” such that “it would be clear to

a reasonable [official] that his conduct was unlawful in the

situation he confronted.”12 We have found that a “right can be said

to have been clearly established only if all reasonable officials

in the defendant’s position would have concluded that the

challenged state action was unconstitutional.”13

Even if we find that the right was clearly established at the

time of the alleged violation, however, a defendant will still be

entitled to qualified immunity if the defendant’s conduct was

“objectively reasonable in light of ‘clearly established’ law at

the time of the violation.”14 The reasonableness of an official’s

actions must be assessed in light of “the facts available to him at

the time of his action and the law that was clearly established at

the time of the alleged illegal acts.”15

A

1

Adam first claims that EAHS violated the First Amendment in

removing him from school based on the contents of his drawing.

12
Anderson v. Creighton, 483 U.S. 635, 640 (1987); Barrow, 332 F.3d at 846
(second question in qualified immunity analysis is whether the “constitutional
right was clearly established when the violation supposedly occured”).
13
Barrow, 332 F.3d at 846 (citing Cozzo v. Tangipahoa Parish Council, 279
F.3d 273, 284 (5th Cir. 2002)).
14
Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273, 279 (5th Cir. 2003)
(quoting Siegert v. Gilley, 500 U.S. 226, 231-32 (1991)).
15
Id. at 284 (quoting Hays County Guardian v. Supple, 969 F.2d 111, 125
(5th Cir. 1992)).

8
Uncertain as to the appropriate legal standard under which the

drawing was to be analyzed, the district court employed three

different approaches before concluding that the drawing was not

entitled to First Amendment protection. The parties argue all

three standards on appeal.

The first two standards employed by the district court were

developed specifically to balance the First Amendment rights of

students with the special need of educators to maintain a safe and

effective learning environment.16 The first standard, originally

set forth in Tinker v. Des Moines Independent Community School

District, provides that school officials may regulate student

speech when they can demonstrate that such speech would

“substantially interfere with the work of the school or impinge

16
See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (“A
school need not tolerate student speech that is inconsistent with its ‘basic
educational mission,’ even though the government could not censor similar speech
outside the school.”) (quoting Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685
(1986)); Canady, 240 F.3d at 441 (“While certain forms of expressive conduct and
speech are sheltered under the First Amendment, constitutional protection is not
absolute, especially in the public school setting. Educators have an essential
role in regulating school affairs and establishing appropriate standards of
conduct.”).
Our court has identified four categories of school regulations aimed at
student speech, with each being reviewing under a different standard. These
categories are: (1) school regulations directed at specific student viewpoints;
(2) school regulations governing student expression involving lewd, vulgar,
obscene or offensive speech; (3) school regulations governing student speech
related to school-sponsored activities; and (4) school regulations that are
viewpoint-neutral and fall into none of the previous three categories. Id., 240
F.3d at 441-44. Because EAHS officials did not punish Adam for the lewd, vulgar,
obscene or offensive content of his drawing, and because his drawing was not
composed as part of a school sponsored activity, the district court correctly
declined to examine the drawing under categories (2) and (3).

9
upon the rights of other students.”17 We have found that this

standard applies to school regulations directed at specific student

viewpoints.18 The second standard provides that school officials

may regulate student speech if the regulation “furthers an

important or substantial government interest; if the interest is

unrelated to the suppression of student expression; and if the

incidental restrictions on First Amendment activities are no more

than is necessary to facilitate that interest.”19 We have found

that this standard applies to regulations unrelated to any

viewpoint.20 Both of these standards are applicable to student

expression “that happens to occur on the school premises.”21

Given the unique facts of the present case, we decline to find

that Adam’s drawing constitutes student speech on the school

premises. Adam’s drawing was completed in his home, stored for two

years, and never intended by him to be brought to campus. He took

no action that would increase the chances that his drawing would

find its way to school; he simply stored it in a closet where it

remained until, by chance, it was unwittingly taken to Galvez

Middle School by his brother. This is not exactly speech on campus

17
Canady, 240 F.3d at 442 (quoting Tinker, 393 U.S. at 508) (internal
quotation marks omitted).
18
Id.
19
Id. at 443.
20
Id.

21
Id. (quoting Kuhlmeier, 484 U.S. at 271).

10
or even speech directed at the campus.22

The third standard employed by the district court in analyzing

Adam’s drawing was developed to deal with speech constituting a

“true threat.” As a general rule, the First Amendment prohibits

government actors from “dictating what we see or read or speak or

hear.”23 However, the government can proscribe a true threat of

22
We are aware of the difficulties posed by state regulation of student
speech that takes place off-campus and is later brought on-campus either by the
communicating student or others to whom the message was communicated. Refusing
to differentiate between student speech taking place on-campus and speech taking
place off-campus, a number of courts have applied the test in Tinker when
analyzing off-campus speech brought onto the school campus. See Boucher v. Sch.
Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 827-28 (7th Cir. 1998) (student
disciplined for an article printed in an underground newspaper that was
distributed on school campus); Sullivan v. Houston Indep. Sch. Dist., 475 F.2d
1071, 1075-77 (5th Cir. 1973) (student punished for authoring article printed in
underground newspaper distributed off-campus, but near school grounds); LaVine,
257 F.3d at 989 (analyzing student poem composed off-campus and brought onto
campus by the composing student under Tinker); Killion v. Franklin Reg’l Sch.
Dist., 136 F. Supp. 2d 446, 455 (W.D. Pa. 2001) (student disciplined for
composing degrading top-ten list distributed via e-mail to school friends, who
then brought it onto campus; author had been disciplined before for bringing top-
ten lists onto campus); Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088,
1090 (W.D. Wash. 2000) (applying Tinker to mock obituary website constructed off-
campus); Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1180 (E.D.
Mo. 1998) (student disciplined for article posted on personal internet site);
Bystrom v. Fridley High Sch., 686 F. Supp. 1387, 1392 (D. Minn. 1987) (student
disciplined for writing article that appeared in an underground newspaper
distributed on school campus).
Our analysis today is not in conflict with this body of case law; rather,
the fact that Adam’s drawing was composed off-campus and remained off-campus for
two years until it was unintentionally taken to school by his younger brother
takes the present case outside the scope of these precedents. See Thomas v. Bd.
of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1050-52 (2d. Cir. 1979)
(refusing to apply Tinker to student newspaper published and distributed off-
campus); Klein v. Smith, 635 F. Supp. 1440, 1441-42 (D. Me. 1986) (enjoining
suspension of student who made a vulgar gesture to a teacher while off-campus);
see also Killion, 136 F. Supp. 2d at 454 (“Although there is limited case law on
the issue, courts considering speech that occurs off school grounds have
concluded (relying on Supreme Court decisions) that school official’s authority
over off-campus expression is much more limited than expression on school
grounds.”); Clay Calvert, Off-Campus Speech, On-Campus Punishment: Censorship of
the Emerging Internet Underground, 7 B.U.J. SCI. & TECH. L. 243, 279 (2001)
(noting that Tinker is ill-suited to deal with off-campus student expression that
is unintentionally brought on-campus by others).
23
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245 (2002).
11
violence without offending the First Amendment.24 Speech is a “true

threat” and therefore unprotected if an objectively reasonable

person would interpret the speech as a “serious expression of an

intent to cause a present or future harm.”25 The protected status

of the threatening speech is not determined by whether the speaker

had the subjective intent to carry out the threat; rather, to lose

the protection of the First Amendment and be lawfully punished, the

threat must be intentionally or knowingly communicated to either

the object of the threat or a third person.26 Importantly, whether

a speaker intended to communicate a potential threat is a threshold

issue, and a finding of no intent to communicate obviates the need

24
See Virginia v. Black, 538 U.S. 343, 359 (2003) (upholding Virginia law
prohibiting cross burning with intent to intimidate); R.A.V. v. City of St. Paul,
505 U.S. 377, 388 (1992) (“[T]hreats of violence are outside the First
Amendment.”); Watts v. United States, 394 U.S. 705, 707-08 (1969) (finding that
the First Amendment permits states to prohibit speech that constitutes a “true
threat”).
25
Doe, 306 F.3d at 622; see also United States v. Fulmer, 108 F.3d 1486,
1490-91 (1st Cir. 1997) (collecting and discussing cases).
26
See Black, 538 U.S. at 359 (“‘True threats’ encompass those statements
where the speaker means to communicate a serious expression of an intent to
commit an act of unlawful violence to a particular individual or group of
individuals.”); Doe, 306 F.3d at 624 (“In determining whether a statement
amounts to an unprotected threat, there is no requirement that the speaker
intended to carry out the threat, nor is there any requirement that the speaker
was capable of carrying out the purported threat of violence. However, the
speaker must have intentionally or knowingly communicated the statement in
question to someone before he or she may be punished or disciplined for it.”
(citing Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of
Life Activists, 290 F.3d 1058, 1075 (9th Cir. 2002)); see also United States v.
Stevenson, 126 F.3d 662, 664 (5th Cir. 1997) (finding that, for purpose of
criminalizing speech as a threat under 18 U.S.C. § 115(a)(1)(B) and 18 U.S.C.
§ 871, the speaker need only “intentionally or knowingly [communicate] his
threat”) (quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th
Cir. 1990)).
12
to assess whether the speech constitutes a “true threat.”27

The Eighth Circuit’s decision in Doe v. Pulaski County Special

School District28 is an illustrative application of these principles

to an alleged threat made by a student off-campus but carried on-

campus by another student. In Doe, a boy in junior high school

drafted two letters to his former girlfriend containing “violent,

misogynic and obscenity-laden rants” expressing a desire to assault

and murder her.29 Months later, the boy’s best friend discovered

the letters, and after first objecting, the boy allowed his friend

to read them. The friend later absconded with at least one of the

letters and showed it to the girlfriend. In addition, the boy had

discussed the violent letters with his former girlfriend in phone

conversations, ultimately admitting that he penned the letters.30

After obtaining and reading one of the letters, the girlfriend

reported the boy to school officials who recommended him for

expulsion. The boy’s parents filed suit, arguing infringement of

his First Amendment rights. The district court held that the

letter was protected under the First Amendment, and did not

constitute a true threat because the boy did not intend to deliver

27
See Doe, 306 F.3d at 624 (“Before we address whether a reasonable
recipient would view the letter as a threat, we are faced with a threshold
question of whether J.M. intended to communicate the purported threat.”);
Orozco-Santillan, 903 F.2d at 1266 n.3 (“The only intent requirement [in the true
threat analysis] is that the defendant intentionally or knowingly communicates
his threat, not that he intended or was able to carry out his threat.”).
28
306 F.3d 616 (8th Cir. 2002).
29
Id. at 619.
30
Id. at 619-20.
13
it to his girlfriend. Reversing the district court, the Eighth

Circuit found that a reasonable and objective recipient would

regard the letter as a true threat. In addition, the Eighth

Circuit found that the boy intentionally communicated the threat

because he allowed his friend to read the letter knowing that his

friend was also a close friend of his former girlfriend.

Furthermore, the boy discussed the letters with his girlfriend on

the telephone on multiple occasions.31

Unlike the court in Doe, we need not decide whether Adam’s

drawing would constitute a true threat in the eyes of a reasonable

and objective person because Adam did not intentionally or

knowingly communicate his drawing in a way sufficient to remove it

from the protection of the First Amendment. While it is true that

Adam showed his drawing to his mother, brother, and friend Kendall

Goudeau, this communication was confined to his own home, and more

than two years passed before the drawing serendipitously reached

the EAHS campus. That the introduction of the drawing to EAHS was

wholly accidental and unconnected with Adam’s earlier display of

the drawing to members of his household is undisputed. Private

writings made and kept in one’s home enjoy the protection of the

First Amendment, as well as the Fourth.32 For such writings to lose

31
Id. at 624-25.
32
See Stanley v. Georgia, 394 U.S. 557, 568 (1969) (holding that the First
and Fourteenth Amendments prohibit the state’s regulatory power from extending
to possession by an individual of obscene materials in his home); Doe, 306 F.3d
at 624 (“The government . . . has no valid interest in the contents of a writing
that a person . . . might prepare in the confines of his own bedroom.”); United
14
their First Amendment protection, something more than their

accidental and unintentional exposure to public scrutiny must take

place.33

Because Adam’s drawing cannot be considered a true threat as

it was not intentionally communicated, the state was without

authority to sanction him for the message it contained. Although

Adam has produced evidence that his drawing comprised the primary

impetus for his expulsion from school, he has not established this

as a matter of law. Consequently, a fact issue remains as to

whether Adam’s First Amendment rights were infringed by EAHS, and

the district court erred in finding otherwise.

2

Because Adam raised a material fact question with respect to

his First Amendment claim, we must proceed to ascertain whether

Adam’s rights were “clearly established” such that “it would be

clear to a reasonable [official] that his conduct was unlawful in

the situation he confronted.”34 “This is not to say that an

States v. Pryba, 502 F.2d 391, 407 (D.C. Cir. 1974) (“The principle underlying
Stanley . . . is that the Constitution extends special safeguards to the privacy
of the home, in common with a few other special societal institutions.”).
33
The district court expressly rejected the view that threats must first
be intentionally communicated before losing First Amendment protection, noting:
“Plaintiffs seek to distinguish this case from Doe by arguing that Adam did not
intentionally disclose his drawing to anyone else. This does not and should not
matter. What does matter is that the drawing did end up in the hands of a
student, a bus driver and school administrators . . . .” Porter, 301 F. Supp.
2d at 588 (emphasis added). This conclusion erroneously ignores the clear
dictate that “true threats” must first be communicated in some knowing and
intentional manner.
34
Anderson, 483 U.S. at 640; see Mace, 333 F.3d at 623-24 (discussing two-
step qualified immunity analysis).
15
official action is protected by qualified immunity unless the very

act in question has previously been held unlawful, but it is to say

that in the light of pre-existing law the unlawfulness must be

apparent.”35 Even if we find that Adam’s right to First Amendment

protection is clearly established, Principal Braud will still

receive qualified immunity if his actions were objectively

reasonable in light of the circumstances he faced at the time he

acted.36 Qualified immunity should be recognized if officials “of

reasonable competence could disagree on [whether a particular

action is lawful].”37 The Supreme Court has observed that the

protection afforded by qualified immunity is broad, protecting “all

but the plainly incompetent or those who knowingly violate the

law.”38

It is indisputable that expressions such as Adam’s drawing,

provided that they do not constitute a true threat, are entitled to

First Amendment protection. It is also clear that such drawings

are entitled to diminished First Amendment protection when composed

by a student on-campus, or purposefully brought onto a school

campus where they become on-campus speech subject to special

35
Anderson, 483 U.S. at 640 (1987).
36
Saucier v. Katz, 533 U.S. 194, 202 (2001).
37
Hope v. Pelzer, 536 U.S. 730, 752 (2002) (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)) (internal quotation marks omitted).
38
Id. (quoting Malley, 475 U.S. at 341) (internal quotation marks omitted).
16
limitations.39 The line dividing fully protected “off-campus”

speech from less protected “on-campus” speech is unclear, however,

in cases such as this involving off-campus speech brought on-campus

without the knowledge or permission of the speaker.

Many courts have applied the Tinker standard in evaluating

off-campus student speech later brought on-campus by persons other

than the speaker. These cases have dealt with such things as

“underground” student newspapers distributed off-campus,40 student-

run websites created on off-campus computers,41 and various writings

brought on-campus by students other than their original author.42

Although reaching differing conclusions as to the legality of

restrictions placed upon the speech in question, these cases

consistently approach off-campus speech brought on-campus as

39
See Kuhlmeier, 484 U.S. at 266 (“[T]he First Amendment rights of students
in the public schools are not automatically coextensive with the rights of adults
in other settings and must be applied in light of the special characteristics of
the school environment.”).
40
See Boucher, 134 F.3d at 827-28 (applying Tinker and finding that article
advocating “hacking” school computers allowed school officials to reasonably
forecast that substantial disruption of school functions would ensue); Shanley
v. N.E. Indep. Sch. Dist., 462 F.2d 960, 970-75 (5th Cir. 1972) (analyzing
student newspaper published off-campus and occasionally taken on-campus by others
under Tinker while noting that “it is not at all unusual to allow the
geographical location of the actor to determine the constitutional protection
that should be afforded to his or her acts”); Sullivan, 475 F.2d at 1076
(applying Tinker and finding that student newspaper published off-campus did not
substantially disrupt school activities).
41
See Emmett, 92 F. Supp. 2d at 1090 (applying Tinker to mock obituary
website constructed off-campus); Beussink, 30 F. Supp. 2d at 1180-82 (applying
Tinker to student homepage built at an off-campus computer and accessed by other
students on-campus; granting request for injunction in favor of student against
10-day suspension).
42
See Killion, 136 F. Supp. 2d at 455 (applying Tinker to “top-ten” list
authored by a student off-campus, and taken on-campus by others without his
express instruction).
17
subject to regulation under Tinker’s “material and substantial”

disruption test.

Not all courts have adopted this approach, however, and some

have found that off-campus speech is entitled to full First

Amendment protection even when it makes its way onto school grounds

without the assistance of the speaker.43 Still others have adopted

a combination approach, analyzing off-campus speech under a flurry

of standards in an effort to comprehensively address all possible

legal approaches.44 Frustrated by these inconsistencies,

commentators have begun calling for courts to more clearly

delineate the boundary line between off-campus speech entitled to

greater First Amendment protection, and on-campus speech subject to

greater regulation.45

43
See Thomas, 607 F.2d at 1050 (“[B]ecause school officials ventured out
of the school yard and into the general community where the freedom accorded
expression is at its zenith, their actions must be evaluated by the principles
that bind government officials in the public arena.”); see also Bethel Sch. Dist.
No. 403 v. Fraser, 478 U.S. 675, 688 (1986) (Brennan, J., concurring) (noting
that student who was penalized for making lewd comments during a school-sponsored
debate could not be punished had he “given the same speech outside of the school
environment . . . simply because government officials considered his language to
be inappropriate . . .”).
44
See Mahaffey v. Aldrich, 236 F. Supp. 2d 779, 783-86 (E.D. Mich. 2002)
(analyzing an off-campus website under Tinker and the true threat analysis while
citing to Thomas for the proposition that school officials have limited authority
over off-campus student expression). This appears to be the approach adopted
by the district court below.
45
See, e.g., Robert Richards & Clay Calvert, Columbine Fallout: The Long-
Term Effects on Free Expression Take Hold in Public Schools, 83 B.U.L. REV. 1089,
1116-20 (2003) (questioning whether school officials should ever have
jurisdiction over student speech that takes place off-campus, and is later
transported on-campus by another without the communicating student’s permission);
Calvert, supra note 22, at 270-75 (2001) (noting that Tinker and its progeny do
not apply to off-campus student speech that is not “brought” by the student onto
the school campus); see also Sarah Redfield, Threats Made, Threats Posed: School
and Judicial Analysis in Need of Redirection, 2003 B.Y.U. EDUC. & L.J. 663, 672-73
18
 Because Adam’s drawing was composed off-campus, displayed only

to members of his own household, stored off-campus, and not

purposefully taken by him to EAHS or publicized in a way certain to

result in its appearance at EAHS, we have found that the drawing is

protected by the First Amendment. Furthermore, we have found that

it is neither speech directed at the campus nor a purposefully

communicated true threat. However, a reasonable school official

facing this question for the first time would find no “pre-

existing” body of law from which he could draw clear guidance and

certain conclusions. Rather, a reasonable school official would

encounter a body of case law sending inconsistent signals as to how

far school authority to regulate student speech reaches beyond the

confines of the campus.

Given the unsettled nature of First Amendment law as applied

to off-campus student speech inadvertently brought on campus by

others, the contours of Adam’s right to First Amendment protection

in the present case cannot be deemed “clearly established” such

that it would be clear to a reasonable EAHS official that

sanctioning Adam based on the content of his drawing was unlawful

(2003) (noting that Tinker, Fraser, and Kuhlmeier, while possessing fact patterns
far removed from today’s school environments, continue to be applied to “new
facts in new places”); William Bird, Comment, True Threat Doctrine and Public
School Speech–An Expansive View of a School’s Authority to Discipline Allegedly
Threatening Student Speech Arising Off Campus: Doe v. Pulaski County Special
School District, 26 U. ARK. LITTLE ROCK L.REV. 111, 128 (2003) (“[Courts have]
failed to establish clear guidance as to how far the First Amendment extends in
protecting off campus student speech . . . . Many courts have extended Tinker
to apply to off-campus speech, while others have refused to recognize the
school’s disciplinary authority simply because of the speech’s off campus
origin.”).
19
under the circumstances. Thus, Braud is entitled to qualified

immunity.

Even if Adam’s rights were clearly established at the time of

his expulsion, Braud’s determination that the drawing was not

entitled to First Amendment protection was objectively reasonable.

The Supreme Court has observed that, even when a particular legal

doctrine is clearly established, “[i]t is sometimes difficult for

an [official] to determine how the relevant legal doctrine . . .

will apply to the factual situation the [official] confronts.”46

The record indicates that, at the time he recommended Adam for

expulsion, Braud was aware that Adam was responsible for the

drawing, that the drawing was two or three years old, and that the

drawing had been brought to Galvez Middle School by Adam’s younger

brother. These facts raise the subtle but important legal

questions of whether the drawing constitutes on-campus speech, or

an intentionally communicated threat. Although we have answered

both of these queries in the negative, we cannot say that all

reasonable school officials facing these circumstances would reach

the same conclusion. For example, looking to case law holding that

Tinker applies to a student’s website created off-campus and later

accessed on campus by others without the student’s knowledge or

encouragement, a reasonable school official might find that Adam’s

drawing is on-campus speech subject to regulation under the Tinker

46
Saucier, 533 U.S. at 205.
20
test.47

The Supreme Court has noted the particular relevance of the

qualified immunity doctrine to cases such as this, in which school

officials are required to make decisions without the benefit of

legal or factual clarity:

As with executive officers faced with instances of civil
disorder, school officials, confronted with student
behavior causing or threatening disruption, also have an
“obvious need for prompt action, and decisions must be
made on factual information supplied by others.”
Liability for damages for every action which is found
subsequently to have been violative of a student’s
constitutional rights and to have caused compensable
injury would unfairly impose upon the school
decisionmaker the burden of mistakes made in good faith
in the course of exercising his discretion with the scope
of his official duties. . . . Denying any measure of
immunity in these circumstances “would contribute not to
principled and fearless decision-making but to
intimidation.”48

Without condoning violations of student’s constitutional rights,

qualified immunity recognizes that school officials, such as

Principal Braud, must be allowed to make reasonable mistakes when

forced to act in the face of uncertainty.

Given the benefit of hindsight, the effort to fault Principal

Braud for failing to conduct a more thorough investigation into the

facts has purchase. For instance, Braud could have spoken with

Andrew Breen about how he acquired the drawing, or queried Kendall

Goudeau and other members of Adam’s friend group about whether Adam

47
See, e.g., Mahaffey, 236 F. Supp. 2d at 783-86; Emmett, 92 F. Supp. 2d
at 1090.
48
Wood v. Strickland, 420 U.S. 308, 319 (1975) (quoting Scheuer v. Rhodes,
416 U.S. 232, 246 (1974) and Pierson v. Ray, 386 U.S. 547, 554 (1967)).
21
had recently discussed the drawing or shown it to them. In

fairness, however, it was reasonable for Braud to forgo further

investigation given LeBlanc’s waiver of Adam’s right to a hearing.

By waiving the hearing, LeBlanc eliminated an important opportunity

for Braud and the Ascension Parish School Board to develop the

facts more fully.

Given the unique facts of the present case, we find that Braud

acted without the benefit of established law that was clear in its

application to these facts, and in an objectively reasonable

manner. Thus, he is entitled to qualified immunity with respect to

Adam’s First Amendment claim.

B

Adam’s second claim was that EAHS officials violated the

Fourth Amendment by searching his book bag and his person

immediately after he admitted that the drawing was his. Finding

that the search was reasonable, the district court held that Adam

had failed to raise a material fact issue regarding his Fourth

Amendment claim. We agree that the search was reasonable under the

circumstances, and therefore did not violate Adam’s Fourth

Amendment rights.

Students have a constitutional right under the Fourth and

Fourteenth Amendments to be free from unreasonable searches and

seizures while on school premises.49 At the same time, the

“accommodation of the privacy interests of schoolchildren with the

49
See New Jersey v. TLO, 469 U.S. 325, 334-37 (1985).
22
substantial need of teachers and administrators for freedom to

maintain order in the schools does not require strict adherence to

the requirement that searches be based on probable cause”; rather,

the legality of school searches depends upon the “reasonableness,

under all the circumstances, of the search.”50

The action must be “justified at its inception”51 and must be

“reasonably related in scope to the circumstances which justified

the interference in the first place.”52

Under ordinary circumstances, a search of a student by a
teacher or other school official will be justified “at
its inception” when there are reasonable grounds for
suspecting that the search will turn up evidence that the
student has violated or is violating either the law or
the rules of the school. Such a search will be
permissible in its scope when the measures adopted are
reasonable related to the objectives of the search and
not excessively intrusive in light of the age and sex of
the student and the nature of the infraction.53

Under the circumstances present at the time the search of Adam

and his book bag was conducted, EAHS officials had reasonable

grounds for suspecting that the search would produce evidence of an

50
Id. at 341; see Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656
(1995) (“Fourth Amendment rights, no less than First and Fourteenth Amendment
rights, are different in public schools than elsewhere; the ‘reasonableness’
inquiry cannot disregard the schools’ custodial and tutelary responsibility for
children.”); Milligan v. City of Slidell, 226 F.3d 652, 654-55 (5th Cir. 2000)
(“The [Supreme] Court [has] indicated that although the Fourth Amendment applies
in schools, the nature of those rights is what is appropriate for children in
school.”).

51
TLO, 469 U.S. at 341 (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968))
(internal quotation marks omitted).
52
Id. (quoting Terry, 392 U.S. at 20) (internal quotation marks omitted).
53
Id. at 341-42.
23
infraction of a school rule or policy.54 Specifically, the

officials were in possession of a drawing depicting numerous

violent acts being perpetrated against EAHS, its students, and

staff. In addition, Adam had admitted that the drawing was his

prior to the initiation of the search. Given that school officials

have a significant interest in deterring misconduct on the part of

students,55 and the fact that Adam had admitted to drawing the

sketch depicting large-scale acts of violence directed at EAHS, the

decision to search Adam was appropriate under the circumstances.56

The search was also reasonable in scope and not overly

intrusive under the circumstances. Following Adam’s admission of

54
As to the reasonableness of school searches under facts similar to those
in the present case, see Cuesta v. Sch. Bd. of Miami-Dade County, 285 F.3d 962,
965-69 (11th Cir. 2002) (finding that violent drawings accompanied by threatening
words aimed at the school is sufficient to create reasonable suspicion that the
a student may intend to harm the school); Williams v. Cambridge Bd. of Educ., 186
F. Supp. 2d 808, 815-16 (S.D. Ohio 2002) (finding probable cause for detention
of students who had discussed bringing guns and bombs to school in the wake of
the Columbine massacre when several classmates reported these statements to
school officials); Stockton v. City of Freeport, 147 F. Supp. 2d 642, 646 (S.D.
Tex. 2001) (finding that discovery of threatening letter on school property
justified detention of suspected students, and noting that “officials in the
Columbine massacre were harshly criticized for failing to take action regarding
prior signs of problems”).
55
Milligan, 226 F.3d at 655 (noting that protecting students and deterring
violent acts are “compelling government interests”); Hassan v. Lubbock Indep.
Sch. Dist., 55 F.3d 1075, 1079 (5th Cir. 1995) (“The Supreme Court has recognized
the unique backdrop that schools present for the operation of the fourth
amendment, specifically noting that ‘the preservation of order and a proper
educational environment requires close supervision of schoolchildren, as well as
the enforcement of rules against conduct that would be perfectly permissible if
undertaken by an adult.’” (quoting TLO, 469 U.S. at 741)).
56
Our holding that EAHS acted reasonably in searching Adam does not
conflict with our conclusion that his drawing did not represent a “true threat”
to the school. The fact that Adam did not intentionally communicate his drawing
precludes the application of the true threat analysis. Under the facts of this
case, however, the discovery of the drawing on school grounds, and Adam’s
subsequent admission of responsibility for its ominous content, provided EAHS
officials with reasonable suspicion sufficient to conduct a search of Adam.
24
responsibility for the drawing, EAHS officials searched his book

bag, including textbooks and notebooks found in the bag, and Adam’s

person, including his wallet. Without question, searching a

student’s person and his book bag is a process invasive of personal

privacy, requiring justification.57 Justification for the scope of

the search was present in this case based on the facts supporting

the initial decision to search.58

Because the search of Adam by EAHS officials was reasonable at

its inception, and was conducted in a reasonable manner when

balanced against the school’s interest in ensuring the safety and

welfare of students, Adam’s Fourth Amendment claim fails.

57
See TLO, 469 U.S. 337-38 (“A search of a child’s person or of a closed
purse or other bag carried on her person, no less than a similar search carried
out on an adult, is undoubtedly a severe violation of subjective privacy
interests.”).
58
In particular, the powerful interest of promoting school safety justified
the scope of the search in this case. See Vernonia Sch. Dist. 47J, 515 U.S. at
661 (when assessing scope of school searches, relevant inquiry is whether the
interest being protected is “important enough to justify that particular search
at hand”); Shade v. City of Farmington, 309 F.3d 1054, 1059-62 (8th Cir. 2002)
(detention and pat-down of student after school employee reported seeing student
with a knife was reasonable, even in light of fact that the knife had already
been turned over by another student); Thompson v. Carthage Sch. Dist., 87 F.3d
979, 982-83 (6th Cir. 1996) (finding that minimally invasive search of student’s
shoes and pockets was reasonable, even absent individualized suspicion, when
school officials have independent grounds for believing that weapons had been
brought to school on a particular day); Brousseau v. Town of Westerly, 11 F.
Supp. 2d 177, 182 (D.R.I. 1998) (finding that searches by school officials for
weapons and drugs are typically considered more compelling because the safety and
welfare of students is implicated).
Additionally, intrusions on the personal privacy interests of students have
been upheld based on lower indices of individualized suspicion than is present
in this case. See Cuesta, 285 F.3d at 968-70 (arrest and strip search of student
upheld as school officials had reasonable suspicion to believe that she was
carrying weapons after connecting her to the distribution of a pamphlet filled
with violent and racist content); Stockton, 147 F. Supp. 2d at 646 (finding that
discovery of threatening letter on school property justified detention of a group
of suspected students); Milligan, 226 F.3d at 654-55 (detention and questioning
of students reasonable when school officials had reasonable suspicion that a
fight was about to occur, even absent individualized suspicion that any one of
them had engaged in or was about to engage in criminal behavior).
25
 C

Adam’s third claim alleges that he was denied his procedural

due process right to a hearing before being removed from EAHS.

Students have a “legitimate entitlement to a public education as a

property interest which is protected by the Due Process Clause and

which may not be taken away for misconduct without adherence to the

minimum procedures required by . . . [the Due Process] Clause.”59

At a minimum, “students facing suspension and the consequent

interference with a protected property interest must be given some

kind of notice and afforded some kind of hearing.”60

Adam had no formal hearing before the Ascension Parish School

Board before being removed from EAHS and transferred to the

alternative school. But, Adam had admitted to school officials his

responsibility for the drawing as well as his ownership of the box

cutter. Whether a student “admitted the charges” leveled against

him is “relevant in determining substantial prejudice or harm.”61

This is so because one of the primary purposes of expulsion

59
Goss v. Lopez, 419 U.S. 565, 574 (1975).
60
Id. at 579; Keough v. Tate County Bd. of Educ., 748 F.2d 1077, 1083 (5th
Cir. 1984) (finding that for suspensions greater than ten days, students should
be provided with a hearing, the names of witnesses who will be called, a summary
of those witnesses’ probable testimony, and an opportunity to present evidence
in rebuttal); Sweet v. Childs, 507 F.2d 675, 681 (5th Cir. 1975) (“The basic
requirement for notice and a hearing prior to the expulsion of a student from a
state-supported school are outlined in Dixon: ‘The notice should contain a
statement of the specific charges and grounds which, if proven, would justify
expulsion . . . . The nature of the hearing should vary depending upon the
circumstances of the particular case.’”) (quoting Dixon v. Alabama State Bd. of
Educ., 294 F.2d 150, 158 (5th Cir. 1961)).
61
Keough, 748 F.2d at 1083.
26
hearings is that of confirming whether the student threatened with

expulsion actually committed the conduct for which he is being

punished. Once a student has admitted his guilt, the need for a

hearing is substantially lessened.62

In addition to Adam’s admission, his mother signed a written

waiver of his right to a hearing. A parent may waive her child’s

due process rights to notice and a hearing prior to expulsion,

provided that the waiver is made voluntarily, knowingly and

intelligently.63 In the context of school disciplinary hearings,

a waiver has been considered effective when it was placed in

writing after a student’s parents consulted with an attorney, was

signed after all potential repercussions and consequences had been

rationally evaluated, and stated in several places that the student

was entitled to a hearing.64

Mary LeBlanc signed a form waiving Adam’s right to a hearing

62
See Watson v. Beckel, 242 F.3d 1237 (10th Cir. 2001) (adopting the
reasoning of Keough in holding that a student who was expelled without being
afforded sufficient process was not prejudiced because he admitted his guilt);
Black Coalition v. Portland Sch. Dist. No. 1, 484 F.2d 1040, 1045 (9th Cir. 1973)
(student not entitled to relief on due process claim because he “admitted all the
essential facts which it is the purpose of a due process hearing to establish”);
Betts v. Bd. of Educ. of the City of Chicago, 466 F.2d 629, 633 (7th Cir. 1972)
(“As to what process is due, it is important that the plaintiff unequivocally
admitted the misconduct with which she was charged. In such a circumstance, the
function of procedural protections in insuring a fair and reliable determination
of the retrospective factual question whether she in fact activated the false
fire alarms is not essential.”).
63
Davis Oil Co. v. Mills, 873 F.2d 774, 787 (5th Cir. 1989) (“Although due
process rights may be waived, a waiver of constitutional rights is not effective
unless the right is intentionally and knowingly relinquished.”); Gonzalez v.
Hidalgo County, 489 F.2d 1043, 1046 (5th Cir. 1973) (same).
64
See Coplin v. Conejo Valley Unified Sch. Dist., 903 F. Supp. 1377, 1383-
84 (M.D. Cal. 1995).
27
after discussing the matter with Ascension Parish School Board

hearing officer Linda Lamendola. LeBlanc had been told by school

officials that her son was entitled to a hearing. She was

presented with a range of options and probable outcomes by

Lamendola, including the option of pursuing a hearing, which

Lamendola indicated had little chance of success, and the option of

waiving her right to a hearing and enrolling her son immediately in

the alternative school. After weighing the alternatives, LeBlanc

made a rational decision to waive the hearing and enroll Adam in

the alternative school. Based on this evidence in the record,

Adam’s contention that his mother’s waiver was made involuntarily

is without merit.65

III

Adam did not brief whether the district court erred in

granting summary judgment in favor of those defendants sued in

their official capacities. This issue is waived. We find that the

district court properly granted summary judgment as to Adam’s

Fourth Amendment and Procedural Due Process claims. While we

cannot agree with its finding that there was no violation of the

First Amendment, we affirm its judgment on its alternative ground

that Principal Braud is entitled to qualified immunity.

The judgment of the district court is AFFIRMED.

65
The record also contains evidence that LeBlanc was being advised by
counsel at the time she signed the waiver form. However, the precise role and
involvement of counsel in her waiver decision is unclear.
28