Holloman Ex Rel. Holloman v. Harland

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
_____________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 01-13864 May 28, 2004
_____________ THOMAS K. KAHN
CLERK
D.C. Docket No. 00-01855-CV-AR-J

MICHAEL HOLLOMAN,
on behalf of and as Next Friend of his son,
Michael Holloman

Plaintiff-Appellant,

versus

GEORGE HARLAND, FAWN ALLRED,

Defendants-Appellees,

____________

No. 01-15094
_____________

D.C. Docket No. 00-01855-CV-AR-J

MICHAEL HOLLOMAN, Jr.,

Plaintiff-Appellant,

versus
WALKER COUNTY BOARD OF EDUCATION,

Defendant-Appellee.

____________

Appeals from the United States District Court
for the Northern District of Alabama
____________

(May 28, 2004)

Before TJOFLAT, WILSON and COWEN*, Circuit Judges.

TJOFLAT, Circuit Judge:

I.

Michael Holloman, a former student at Parrish High School in Walker

County, Alabama, filed a § 1983 suit against Fawn Allred, his economics and

government teacher; George Harland, the school principal; and the Walker County

Board of Education (“School Board”), which oversaw the school. He claimed that

his rights under the First Amendment’s Speech Clause were violated when Allred

and Harland punished him for silently raising his fist during the daily flag salute

instead of reciting the Pledge of Allegiance with the rest of his class. He further

claims that his Establishment Clause rights were violated by Allred’s daily “ritual”

*
Honorable Robert E. Cowen, United States Circuit Judge for the Third Circuit, sitting by
designation.

2
of conducting a silent moment of prayer. He sought both legal and equitable

relief.

The district court granted summary judgment on both claims to Allred and

Harland on qualified immunity grounds. In a separate opinion, it granted summary

judgment to the School Board, concluding that Holloman failed to articulate a

violation of his constitutional rights or demonstrate a way in which the Board (as a

municipal governing entity) could be held liable for the acts at issue here.

Holloman appeals both rulings.

Subpart A of this Part examines the facts supporting Holloman’s Speech

Clause claim. Subpart B explains his Establishment Clause allegations. Subpart C

sets forth the framework of state statutes and School Board regulations implicated

by Holloman’s claims, and Subpart D delves into the procedural history of this

case in greater detail. Throughout this discussion, because we are reviewing

grants of summary judgment to the defendants, we view the evidence in the light

most favorable to the plaintiff. See Johnson v. Governor of Florida, No. 02-

14469, 2003 U.S. App. LEXIS 25859, at *3 (11th Cir. Dec. 19, 2003).

A.

3
 Holloman contends that Allred and Harland violated his First Amendment

right to free speech (as incorporated against the states through the Fourteenth

Amendment’s Due Process Clause) by treating him adversely because he silently

raised his fist during the flag salute instead of reciting the Pledge of Allegiance.1

To understand what happened, it is necessary to consider their treatment of

another student, John Michael Hutto, the day before their confrontation with

Holloman.

1.

Allred taught her Economics and Government class in the first period of

each day, during which time the Pledge of Allegiance was recited over the school

intercom system. It was customary for students to stand by their desks, with their

hands over their hearts, and recite the pledge.

During the flag salute on May 16, 2000, Hutto remained silent with his

hands in his pockets, without causing a disturbance. When Allred asked him why

he was not participating in the flag salute, Hutto responded that he “didn’t want to

say it, he didn’t have to say it, and he hadn’t said it for a month.” Allred stated,

1
We use the terms “Pledge of Allegiance” and “flag salute” interchangeably.

4
“You don’t want to say the pledge and the United States Air Force Academy has

given you a scholarship?,” then continued class.

At lunch that day, Allred told Harland of Hutto’s refusal to say the pledge.

Harland became very angry and met with Allred, Hutto, and Vice Principal Jason

Adkins in his office. Harland told Hutto that he was disappointed in Hutto’s

refusal to salute the flag, and threatened to report the incident to both Hutto’s

recruiter at the Air Force Academy as well as the Congressman who had

recommended Hutto to the Academy. Harland also ordered Hutto to apologize to

Allred and her class for refusing to salute the flag.

Later that day, Harland went to Hutto’s physics class (in which Holloman

was a student) and declared that “anyone who joined in [Hutto’s] protest and

refused to say the pledge or committed similar action would be punished.” The

following day, Hutto recited the Pledge of Allegiance with the rest of the class,

and the day after that he apologized to Allred and her students.

2.

During the flag salute on the day after the Hutto incident, Holloman stood

with the other students in Allred’s class, but did not recite the Pledge of

Allegiance. Instead, he silently raised his fist in the air while the rest of the class

5
recited the pledge; once the pledge was over, he sat down like everyone else. He

did not say anything, touch any other students, disrupt the class, or obstruct

anyone’s view of the flag. Allred, however, immediately chastised him in front of

the class, saying that he had acted inappropriately and “disrespectful[ly],” and that

she was “disappointed.” She then started class in her normal fashion.

Later that day, Allred informed Harland of what happened, and Harland

summoned Allred and Holloman into the principal’s office. Holloman explained

that he had raised his fist “in protest of what happened to [Hutto].” Harland told

Holloman “how disappointed he was, and that he felt that he had failed teaching

Michael Holloman responsibility, morals and values.” He also informed

Holloman that he would have to serve three days’ detention and could not receive

his diploma until after he completed his punishment. In addition, Harland required

Holloman to apologize to Allred’s class. When Holloman left Harland’s office,

Harland called Holloman’s mother, explaining “that he was too mad and upset to

punish Michael at the time because he may hurt Michael.”

Since graduation was that Friday, there was not enough time left in the

school year for Holloman to serve his detentions while still being able to receive

his diploma on graduation day. Harland consequently offered Holloman the

6
opportunity to receive a paddling instead. Holloman agreed and, with Allred

watching, was paddled by Harland.

B.

Allred began her Economics and Government class almost every day by

asking, “Does anyone have any prayer requests?” After her students offered

various dedications, Allred would hold a moment of silence. Allred frequently

opened this moment of silence by saying “Let us pray,” and often ended it by

saying “Amen.” Allred explicitly states that over the 1999-2000 school year, this

practice became a daily “ritual.” She never told her students that they were free to

leave the room during either her prayer requests or the subsequent moment of

silent prayer.

One day, Vice Principle Adkins sat in on her class and personally observed

this phenomenon. When Allred attempted to begin her economics lesson, one of

her students raised her hand and reminded Allred that she had forgotten to elicit

her customary prayer requests. At that point, Allred took prayer requests from the

class, then commenced a moment of silence by saying, “Let us pray.” On another

occasion, at the conclusion of the moment of silence, Allred permitted one of her

students to read aloud a passage from the Bible.

7
 C.

The events in this case did not occur in a vacuum. In 1995, the Alabama

state legislature enacted a statute which required the State Board of Education and

all local school boards to

develop and implement . . . a comprehensive character education
program for all grades to consist of not less than ten minutes of
instruction per day focusing upon the students’ development of the
following character traits: courage, patriotism, citizenship, honesty,
fairness, respect for others, kindness, cooperation, self-respect, self-
control, courtesy, compassion, tolerance, diligence, generosity,
punctuality, cleanliness, cheerfulness, school pride, respect for the
environment, patience, creativity, sportsmanship, loyalty, and
perseverance. Each plan of instruction shall include the Pledge of
Allegiance to the American flag.

Ala. Code § 16-6B-2(h). This law made daily recitation of the Pledge of

Allegiance a part of the character education program the Legislature required local

school boards to implement. A separate statute, however, emphasized that

students should not be forced to recite the pledge. See Ala. Code § 16-43-5 (“The

State Board of Education shall afford all students attending public kindergarten,

primary and secondary schools the opportunity each school day to voluntarily

recite the pledge of allegiance to the United States flag.” (emphasis added)).

To implement these requirements, Larry Banks, the Superintendent of the

Walker County School District, sent a letter on behalf of the Walker County Board

8
of Education to all the principals in the district, stating, “[E]ach school system

must incorporate a Character Education Plan which will consist of 10 minutes of

instruction per day in various areas, such as, the Pledge of Allegiance . . . . Each

day must include the Pledge of Allegiance and then other areas as mentioned as

you determine at your school.”

Banks also sent each principal a form to complete to specify how each

school intended to incorporate into its curriculum the character-education

requirements set forth above. The memo directed, “Please begin to make plans

and be prepared to submit your local Character Education Plan [to the county

school board] which must be forwarded to the State Superintendent’s Office.” The

County School Board apparently had to either review or approve each school’s

character education plan before it was forwarded to the State. Allred contends that

her daily moment of silent prayer was conducted in partial fulfillment of these

character education requirements—it was intended to teach compassion.

D.

On July 3, 2000, Holloman and Hutto filed a class action suit under 42

U.S.C. § 1983 in the Northern District of Alabama against the Walker County

Board of Education, Harland, Adkins, and Allred. They alleged that their First

9
Amendment rights had been violated because they had been chastised, threatened,

and punished for refusing to say the Pledge of Allegiance. They also claimed that

Allred’s practice of soliciting prayer requests and setting aside a moment of

silence for prayer violated the Establishment Clause. The complaint sought

compensatory and punitive damages, as well as declaratory and injunctive relief.

A few months later, an amended complaint was filed; it was substantially

identical to the original except Hutto was no longer a party. The district court

dismissed Jason Adkins as a defendant (with Holloman’s consent), and declined to

certify the class action. Holloman does not appeal either of these rulings.

In their answer to Holloman’s amended complaint, Allred and Harland cited

qualified immunity as an affirmative defense. They later moved the court for

summary judgment on qualified immunity grounds. The court granted their

motion and dismissed them from the case. It concluded that Holloman’s Speech

Clause allegations did not constitute a First Amendment violation, and certainly

not a violation of a right that was “clearly established” at the time of the incidents.

The court also rejected Holloman’s Establishment Clause claims, stating there was

no Eleventh Circuit precedent during the 1999-2000 school year that “clearly

established” a moment of silence for prayer as being unconstitutional. Holloman

10
appealed the court’s decision to grant Allred and Harland summary judgment on

qualified immunity grounds.2

Following the district court’s dismissal of Holloman’s claims against Allred

and Harland, the Board of Education also sought summary judgment. The court

granted the Board’s motion, concluding that Holloman had not alleged facts

sufficient to hold the Board liable under § 1983. Holloman appeals this ruling as

well, arguing that he stated valid claims against the School Board.3

In these consolidated appeals, we review the district court orders granting

the defendants summary judgment. Part II of this opinion explains why the district

court erred in granting Allred and Harland summary judgment on qualified

immunity grounds against Holloman’s Speech Clause claims. Part III shows that

Allred is not even potentially entitled to summary judgment on qualified immunity

grounds against Holloman’s Establishment Clause claims because she has not

established as a matter of law that, in holding her daily moment of silent prayer,

she was engaged in a discretionary function of her job. Part IV assesses

Holloman’s underlying Establishment Clause claim, concluding that he has

2
The court’s opinion dismissed all of Holloman’s constitutional claims against both
defendants with prejudice. It entered a final judgment in favor of Allred and Harland pursuant to
Fed. R. Civ. P. 54(b), rendering its order immediately appealable. The appeal was docketed in
this court as No. 01-13864.
3
This appeal was docketed as No. 01-15094.

11
introduced evidence sufficient to support a determination that a clearly established

right has been violated.4 Part V discusses how Holloman has successfully

articulated several theories under which the School Board may be held liable for

the Speech and Establishment Clause violations, while Part VI briefly concludes.

II.

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation,
custom, or usage of any State . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law [or] suit in equity . . . .

42 U.S.C. § 1983. There are two ways in which an individual may be held liable

under § 1983—he may be sued for his own personal actions (“direct liability”), or,

under certain limited circumstances, for the actions of his subordinates

(“supervisoral liability”), see, e.g., Lewis v. Smith, 855 F.2d 736, 738 (11th Cir.

1988).5

4
We include this discussion because a legal determination that his constitutional rights
were violated is a necessary predicate to allowing his suit against the School Board to proceed.
5
A supervisor, of course, may be held responsible under either or both theories. See
Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (“Supervisory liability occurs either
when the supervisor personally participates in the alleged constitutional violation [direct liability]
or when there is a causal connection between actions of the supervising official and the alleged
constitutional deprivation [supervisoral liability].”).

12
 When a government official is sued under a theory of direct liability, he may

seek summary judgment on qualified immunity grounds.6 To even be potentially

eligible for summary judgment due to qualified immunity, the official must have

been engaged in a “discretionary function” when he performed the acts of which

the plaintiff complains. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727,

2738, 73 L. Ed. 2d 396 (1982) (holding that qualified immunity extends to

“government officials performing discretionary functions”). It is the burden of the

governmental official to make this showing. Storck v. City of Coral Springs, No.

02-16956, 2003 U.S. App. LEXIS 26415, at *16 (Dec. 30, 2003) (“Under qualified

immunity analysis, the public official must first prove that he was acting within

the scope of his discretionary authority when the allegedly unconstitutional acts

took place.” (emphasis added)). A defendant unable to meet this burden may not

receive summary judgment on qualified immunity grounds. Lumley v. City of

Dade City, 327 F.3d 1186, 1194 (11th Cir. 2003) (“If the defendants were not

acting within their discretionary authority, they are ineligible for the benefit of

qualified immunity.”); see also Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.

2002). While a number of our cases omit this step of the analysis, see, e.g., Denno

6
The government official may also seek to have the complaint dismissed on qualified
immunity grounds prior to discovery, based solely on the allegations in the pleadings.

13
v. Sch. Bd., 218 F.3d 1267 (11th Cir. 2000); Hall v. Talladega City Bd. of Educ.,

115 F.3d 821 (11th Cir. 1997), binding Supreme Court and Eleventh Circuit

precedents require us to consider expressly this critical threshold matter. We

explain this “discretionary function” test in greater detail in Subpart II.A.

If, interpreting the evidence in the light most favorable to the plaintiff, the

court concludes that the defendant was engaged in a discretionary function, then

the burden shifts to the plaintiff to show that the defendant is not entitled to

qualified immunity. Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003)

(“Once a defendant establishes that he was acting within his discretionary

authority, the burden shifts to the plaintiff to show that the defendant is not

entitled to qualified immunity.”). To overcome qualified immunity, the plaintiff

must satisfy a two prong test; he must show that: (1) the defendant violated a

constitutional right, and (2) this right was clearly established at the time of the

alleged violation.7 Wilson v. Layne, 526 U.S. 603, 609, 119 S. Ct. 1692, 1697,

143 L. Ed. 2d 818 (1999) (“A court evaluating a claim of qualified immunity must

7
Our rulings on these two questions are legal conclusions that are binding law of the case
and may not be revisited in later proceedings. Consequently, once we deny defendants summary
judgment on qualified immunity grounds because the plaintiff has alleged violations of clearly
established rights, the defendants may not later attempt to re-assert qualified immunity against
those claims on purely legal bases (e.g. by arguing that the rights do not exist or are not clearly
established). The only remaining issues are questions of fact—i.e., whether the plaintiff can
actually prove at trial that the alleged violations occurred.

14
first determine whether the plaintiff has alleged the deprivation of an actual

constitutional right at all, and if so, proceed to determine whether that right was

clearly established at the time of the alleged violation.”) (quotations and citations

omitted). If the plaintiff prevails on both prongs of this test, then the defendant is

unable to obtain summary judgment on qualified immunity grounds.

Applying this test, the district court awarded Allred and Harland summary

judgment against Holloman’s Speech Clause claims. The Speech Clause of the

First Amendment protects at least two separate, yet related, rights: (1) the right to

freedom of expression, and (2) the right to be free from compelled expression.

United States v. United Foods, Inc., 533 U.S. 405, 410, 121 S. Ct. 2334, 2338, 150

L. Ed. 2d 438 (2001). These rights unquestionably exist in public schools. See

Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733,

736, 21 L. Ed. 2d 731 (1969).

Holloman argues that Allred and Harland are directly liable for violating

both constitutional rights guaranteed by the Speech Clause. First, he maintains,

they violated his right to be free from compelled expression by chastising,

threatening, and ultimately punishing him for failing to recite the Pledge of

Allegiance. Second, to the extent that he was punished for silently raising his fist

in the air during the Pledge of Allegiance (rather than for simply failing to recite

15
the pledge), Holloman contends that Allred and Harland violated his right to

engage in affirmative expression. Finally, regardless of whether Holloman’s

expression was constitutionally protected in itself, he has the First Amendment

right to be free of viewpoint-based discrimination and punishment.

We conclude that Allred nor Harland are not entitled to summary judgment

on qualified immunity grounds against any of these First Amendment claims. In

Subpart II.A, we conclude that both Allred and Harland were engaged in a

discretionary function at the time they disciplined Holloman in connection with

the flag salute incident, and so are potentially entitled to summary judgment on

qualified immunity grounds. In Subpart II.B, we discuss how the

evidence—interpreted in the light most favorable to Holloman—supports the

conclusion that his clearly-established right to be free from compelled speech was

violated. Subpart II.C makes a similar finding regarding his right to engage in

affirmative expression. Subpart II.D concludes that, even if—as the dissent

contends—Holloman’s expression was not itself constitutionally protected, a

Allred’s behavior nevertheless violated the First Amendment because she

punished him for expressing a viewpoint she found repugnant, rather than for any

disruption he purportedly caused (which, interpreting the evidence in his favor,

was entirely negligible). Consequently, Holloman has made the necessary

16
showings with regard to his three Speech Clause claims to overcome Allred’s and

Harland’s assertions of qualified immunity at this stage.

A.

In many areas other than qualified immunity, a “discretionary function” is

defined as an activity requiring the exercise of independent judgment, and is the

opposite of a “ministerial task.” See, e.g., Williams v. Wood, 612 F.2d 982, 985

(5th Cir. 1980).8 In the qualified immunity context, however, we appear to have

abandoned this “discretionary function / ministerial task” dichotomy. In McCoy v.

Webster, 47 F.3d 404, 407 (11th Cir. 1995), we interpreted “the term

‘discretionary authority’ to include actions that do not necessarily involve an

element of choice,” and emphasized that, for purposes of qualified immunity, a

governmental actor engaged in purely ministerial activities can nevertheless be

performing a discretionary function.

Instead of focusing on whether the acts in question involved the exercise of

actual discretion, we assess whether they are of a type that fell within the

employee’s job responsibilities. Our inquiry is two-fold. We ask whether the

8
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

17
government employee was (a) performing a legitimate job-related function (that is,

pursuing a job-related goal), (b) through means that were within his power to

utilize. See Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1185 n.17 (11th

Cir. 1994) (“A government official acts within his or her discretionary authority if

objective circumstances compel the conclusion that challenged actions occurred in

the performance of the official’s duties and within the scope of this authority.”

(emphasis added)).

One might reasonably believe that violating someone’s constitutional rights

is never a legitimate job-related function or within the scope of a government

official’s authority or power. As we explained in Harbert Int’l, Inc. v. James, 157

F.3d 1271, 1282 (11th Cir. 1998) (quotation marks and citation omitted), however,

“the inquiry is not whether it was within the defendant’s authority to commit the

allegedly illegal act. Framed that way, the inquiry is no more than an untenable

tautology.” In applying each prong of this test, we look to the general nature of

the defendant’s action, temporarily putting aside the fact that it may have been

committed for an unconstitutional purpose, in an unconstitutional manner, to an

unconstitutional extent, or under constitutionally inappropriate circumstances.

Consider the first prong of the test—whether the official is engaged in a

legitimate job-related function. In Sims v. Metropolitan Dade County, 972 F.2d

18
1230 (11th Cir. 1992), “we did not ask whether it was within the defendant’s

authority to suspend an employee for an improper reason; instead, we asked

whether [the defendant’s] discretionary duties included the administration of

discipline.” Harbert, 157 F.3d at 1282. Similarly, in assessing whether a police

officer may assert qualified immunity against a Fourth Amendment claim, we do

not ask whether he has the right to engage in unconstitutional searches and

seizures, but whether engaging in searches and seizures in general is a part of his

job-related powers and responsibilities. See, e.g., Madiwale v. Savaiko, 117 F.3d

1321, 1324 (11th Cir. 1997). Put another way, to pass the first step of the

discretionary function test for qualified immunity, the defendant must have been

performing a function that, but for the alleged constitutional infirmity, would have

fallen with his legitimate job description.

Of course, we must be sure not to characterize and assess the defendant’s

act at too high a level of generality. Nearly every act performed by a government

employee can be described, in general terms, as ostensibly “furthering the public

interest.” If we jump to such a high level of abstraction, it becomes impossible to

determine whether the employee was truly acting within the proper scope of his

job-related activities. Consequently, we consider a government official’s actions

at the minimum level of generality necessary to remove the constitutional taint. In

19
considering whether an act of allegedly excessive force fell within a police

officer’s duties, for example, we do not ask whether police have the right to use

excessive force. We also do not immediately jump to a high level of generality

and ask whether police are responsible for enforcing the law or promoting the

public interest. We instead ask whether they have the power to attempt to

effectuate arrests. See, e.g., Ferraro, 284 F.3d at 1194 (holding, in an excessive

force suit, “there can be no doubt that [the police officer defendant] was acting in

his discretionary capacity when he arrested [plaintiff]”).

After determining that an official is engaged in a legitimate job-related

function, it is then necessary to turn to the second prong of the test and determine

whether he is executing that job-related function—that is, pursuing his job-related

goals—in an authorized manner. The primary purpose of the qualified immunity

doctrine is to allow government employees to enjoy a degree of protection only

when exercising powers that legitimately form a part of their jobs. See, e.g.,

Harlow, 457 U.S. at 819 & n.34, 102 S. Ct. at 2739 & n.34 (limiting the

availability of qualified immunity to situations where “an official’s duties

legitimately require action” and to “actions within the scope of an official’s

duties”). Each government employee is given only a certain “arsenal” of powers

with which to accomplish her goals. For example, it is not within a teacher’s

20
official powers to sign her students up for the Army to promote patriotism or civic

virtue, or to compel them to bring their property to school to redistribute their

wealth to the poor so that they can have firsthand experience with altruism.

Employment by a local, county, state, or federal government is not a carte

blanche invitation to push the envelope and tackle matters far beyond one’s job

description or achieve one’s official goals through unauthorized means. Pursuing

a job-related goal through means that fall outside the range of discretion that

comes with an employee’s job is not protected by qualified immunity.

Under this standard, Allred—as a matter of law—was undoubtedly engaged

in a discretionary function in chastising Holloman for raising his fist during the

Pledge of Allegiance and later referring him to Harland for punishment. Though

Allred is not empowered to violate constitutional rights as part of her official

duties, she did have the responsibility of maintaining decorum in the classroom.

The fact that she may have attempted to keep order in the classroom in an

unconstitutional manner does not change the fact that she was fulfilling a

legitimate job-related function. Moreover, the ways in which she attempted to

pursue this job-related goal (chastising Holloman and reporting him to the

principal)—examined on a general level rather than in this specific

application—were legitimate prerogatives of her job. From an alternate

21
perspective, putting aside Holloman’s First Amendment claim, Allred’s actions

would undoubtedly be considered part of her duties and legitimate exercises of her

authority. Consequently, under the two-prong test articulated above, her activities

in relation to the flag salute incident were discretionary acts for which she may

seek qualified immunity.

For similar reasons, Harland is also potentially entitled to qualified

immunity against Holloman’s Speech Clause claims. Disciplining students is a

legitimate discretionary function performed by principals, See Kirkland v. Greene

County Bd. of Educ., 347 F.3d 903, 903 n.1 (11th Cir. 2003), and in the State of

Alabama, spanking students is a legitimate part of a principal’s “arsenal” for

enforcing such discipline. Consequently, the burden shifts to Holloman to

demonstrate that Allred and Harland are not entitled to summary judgment on

qualified immunity grounds.

B.

As discussed earlier, once a defendant establishes that he was engaged in a

discretionary function at the time of the acts in question, the burden shifts to the

plaintiff to show that the defendant is not entitled to summary judgment on

qualified immunity grounds. To do so, the plaintiff must demonstrate that a

22
reasonable jury could interpret the evidence in the record as showing that the

defendant violated a constitutional right that was clearly established at the time of

the acts in question.

We begin by examining Holloman’s claim that Allred and Harland violated

his First Amendment right to be free from compelled speech. Section 1 considers

whether Holloman has successfully articulated a violation of a constitutional right,

while Section 2 analyzes whether such a right was clearly established at the time

of the incidents. Based on these discussions, we conclude that, interpreting the

evidence in the light most favorable to Holloman, both Allred and Harland

engaged in acts amounting to violations of Holloman’s right to be free from

compelled speech. Consequently, neither defendant is entitled to summary

judgment on qualified immunity grounds against this Speech Clause claim.

1.

The Speech Clause of the First Amendment states, “Congress shall make no

law . . . abridging the freedom of speech . . . .” U.S. Const. amend I. The First

Amendment, as incorporated through the Due Process Clause of the First

Amendment, Near v. Minnesota, 283 U.S. 697, 707, 51 S. Ct. 625, 628, 75 L. Ed.

1357 (1931), applies to state and municipal governments, state-created entities,

23
and state and municipal employees, West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624, 637, 63 S. Ct. 1178, 1185, 87 L. Ed. 1628 (1943).

In Barnette, the Court held that the right to be free from compelled speech

protects public school students from being forced to participate in the flag salute.

It stated, “[T]he action of the local authorities in compelling the flag salute and

pledge transcends constitutional limitations on their power and invades the sphere

of intellect and spirit which it is the purpose of the First Amendment to our

Constitution to reserve from all official control.” Id. at 642, 63 S. Ct. at 1187.

Several pieces of evidence in the record support Holloman’s contention that

he was disciplined for failing to recite the Pledge of Allegiance. First, the day

before the Holloman incident, John Michael Hutto was chastised in front of the

class, sent to the Principal’s office, threatened that his recommendation to the Air

Force Academy would be revoked, and forced to apologize to his teacher and

classmates, simply because he remained silent during the Pledge of Allegiance

(without engaging in any affirmatively expressive activity). Second, Allred’s

deposition is replete with references to her “patriotism” and desire to see the

American flag saluted in the “proper” or “normal” way; she was deeply offended

by the notion of Americans not wanting to salute the flag.

24
 Third, according to Holloman’s affidavit, Harland interrupted Holloman’s

physics class to explicitly threaten that any students who refused to say the Pledge

of Allegiance would be punished. Fourth, the affidavits of both Holloman and his

mother state that he was told he was being punished for failing to salute the flag.

Indeed, Harland told Holloman’s mother during their phone conversation that he

had to wait before disciplining Holloman because he was afraid that he (Harland)

would hurt him. Consequently, there is more than enough evidence in the record

to allow a reasonable jury to adopt this interpretation of events.

Allred’s acts (if proven at trial), as a matter of law, violated Holloman’s

constitutional rights. First, according to Allred’s own testimony, she instructed

him that there were only two“permissible” ways of saying the pledge, and that any

other way of doing so was prohibited. Second, she verbally chastised him in front

of the class for his constitutionally protected actions (either failing to salute the

flag or expressing his opinion in a non-disruptive fashion).

Verbal censure is a form of punishment, albeit a mild one. The intent

behind this act was to dissuade him from exercising a constitutional right. She

singled out Holloman in front of his entire class, subjecting him to embarrassment

and humiliation. Given the gross disparity in power between a teacher and a

student, such comments—particularly in front of the student’s peers—coming

25
from an authority figure with tremendous discretionary authority, whose words

carry a presumption of legitimacy, cannot help but have a tremendous chilling

effect on the exercise of First Amendment rights. See Riley v. Nat’l Fed’n of the

Blind, 487 U.S. 781, 794, 108 S. Ct. 2667, 2676, 101 L. Ed. 2d 669 (1988)

(invaliding a “scheme” that “must necessarily chill speech in direct contravention

of the First Amendment’s dictates”); Dickerson v. United States, 530 U.S. 428,

459, 120 S. Ct. 2326, 2344, 147 L. Ed. 2d 405 (2000) (Scalia, J., dissenting)

(“[T]he Court has viewed the importation of ‘chill’ as itself a violation of the First

Amendment.”) (emphasis in original). As in the Establishment Clause context,

such “public pressure . . . can be as real as any overt compulsion,” particularly in a

“classroom setting, where . . . the risk of compulsion is especially high”; such

measures may not be used to deter, even if “subtl[y] or indirect[ly],” the exercise

of constitutional rights. Lee v. Weisman, 505 U.S. 577, 593, 596, 112 S. Ct. 2649,

2658, 2660, 120 L. Ed. 2d 467 (1992).

Finally, Allred played a major role in the administration of Holloman’s

more formal punishment, his paddling. She reported the incident to the principal

with the intent and hope that Holloman be disciplined, was present during

Holloman’s questioning by Harland, did not object or attempt to dissuade Harland

in any way, was present for the paddling, and manifested her approval of it

26
throughout the entire process. For similar reasons, Holloman has also adduced

sufficient evidence to support his claim against Harland, the one who actually

spanked him.

Having demonstrated that the record amply supports Holloman’s contention

that the defendants violated his constitutional right to be free from compelled

speech, we now consider whether this right was clearly established at the time of

the events in question.

2.

Barnette, 319 U.S. at 642, 63 S. Ct. at 1187, clearly and specifically

established that schoolchildren have the right to refuse to say the Pledge of

Allegiance. Under Barnette, any “reasonable person would have known” that

disciplining Holloman for refusing to recite the pledge impermissibly chills his

First Amendment rights. Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir.

2001) (citation omitted). Consequently, on these alleged facts, Allred and Harland

are not entitled to qualified immunity against Holloman’s claims related to

compelled speech. We reverse the district court’s holding to the contrary.

27
 Having assessed the viability of Holloman’s First Amendment claim to be

free from compelled speech, we now turn to Holloman’s First Amendment claim

to engage in affirmative expression.

C.

One of Holloman’s alternate bases for recovery under the First Amendment

is that the defendants punished him for engaging in constitutionally protected

speech. He maintains, in other words, that even if the defendants punished him for

silently raising his fist during the Pledge of Allegiance—rather than for merely

remaining silent during the pledge—his rights under the Speech Clause were still

violated. The district court dedicated the overwhelming majority of its opinion

regarding Allred and Harland to this argument, concluding that “[n]o jury could

reasonably conclude that ‘every like-situated, reasonable’ teacher or principal

would necessarily know that punishing Holloman for his unorthodox and

deliberately provocative and disruptive gesture violated federal law . . . .” (Mem.

Op., June 4, 2001, at 10).

We are again forced to reverse. Section 1 shows that the evidence

(interpreted in Holloman’s favor) demonstrates the existence of a limited

constitutional right to engage in non-disruptive expression in a classroom

28
environment, while Section 2 demonstrates that this right was clearly established

when the defendants chastised and punished him. Consequently, Allred and

Harland are not entitled to summary judgment on qualified immunity grounds

against Holloman’s Speech Clause claim regarding his right to express himself.

1.

The Constitution guarantees students (and all people) the right to engage not

only in “pure speech,” but “expressive conduct,” as well. See United States v.

O’Brien, 391 U.S. 367, 376-77, 88 S. Ct. 1673, 1678-79, 20 L. Ed. 2d 672 (1968).

In Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974),

the Supreme Court held that, to determine whether a particular act counts as

expressive conduct, a court must determine whether “[a]n intent to convey a

particularized message was present, and in the surrounding circumstances the

likelihood was great that the message would be understood by those who viewed

it.” Id. at 410-11, 94 S. Ct. at 2730. The Court later liberalized this test, however,

emphasizing that “a narrow, succinctly articulable message is not a condition of

constitutional protection, which if confined to expressions conveying a

‘particularized message,’ would never reach the unquestionably shielded painting

of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis

29
Carroll.” Hurley v. Irish-Am., Gay, Lesbian & Bisexual Group of Boston, Inc.,

515 U.S. 557, 569, 115 S. Ct. 2338, 2345, 132 L. Ed. 2d 487 (1995). Thus, in

determining whether conduct is expressive, we ask whether the reasonable person

would interpret it as some sort of message, not whether an observer would

necessarily infer a specific message.

At the very least, Holloman’s gesture was expressive conduct. It is quite

reasonable to infer that at least some students would have recognized his act for

what it was—a protest over Allred’s treatment of Hutto. Even if students were not

aware of the specific message Holloman was attempting to convey, his fist clearly

expressed a generalized message of disagreement or protest directed toward

Allred, the school, or the country in general.

It is quite possible, however, that Holloman’s act constituted “pure speech.”

As the Court suggested in O’Brien, 391 U.S. at 376, 88 S. Ct. at 1678, expressive

conduct is an act with significant “‘non-speech’ elements,” that is being used in a

particular situation to convey a message. Holloman’s act does not contain any of

the substantive “non-speech” elements that are necessary to remove something

from the realm of “pure speech” into the realm of expressive conduct. It seems as

purely communicative as a sign-language gesture or the act of holding up a sign,

and in this respect is similar to the wearing of a black armband, which the Tinker

30
Court found to be a “primary First Amendment right[] akin to ‘pure speech.’” 393

U.S. at 508, 89 S. Ct. at 737.

It does not ultimately matter whether Holloman’s act is characterized as

“pure speech” or “expressive conduct” because this circuit appears to apply the

same test in assessing school restrictions on either kind of expression. This

Section summarizes these principles and applies them to the instant case.

a.

As with all rights, the scope of the First Amendment has boundaries. On

many occasions, we have affirmed the right of public educational institutions “to

adopt and enforce reasonable, non-discriminatory regulations as to the time, place

and manner of student expressions and demonstrations.” Bayless v. Martine, 430

F.2d 873, 878 (5th Cir. 1970). This “reasonableness” test is not the anemic

simulacrum of a constraint on governmental power found in the Due Process

Clause’s “rational basis” test, see, e.g., Williamson v. Lee Optical, 348 U.S. 483,

487-88, 75 S. Ct. 461, 464, 99 L. Ed. 563 (1955), but rather a more robust notion

of “reasonableness” such as that applied in the Fourth Amendment context, see

U.S. Const. amend IV (prohibiting “unreasonable searches and seizures”).

In Burnside v. Byars, we articulated the way to determine whether a public

school regulation that curtailed expression was reasonable:

31
 [S]chool officials cannot ignore expressions of feelings with which
they do not wish to contend. They cannot infringe on their students’
right to free and unrestricted expression as guaranteed to them under
the First Amendment to the Constitution, where the exercise of such
rights in the school buildings and schoolrooms do[es] not materially
and substantially interfere with the requirements of appropriate
discipline in the operation of the school.

363 F.2d at 749. Under the Burnside standard, student expression may

unquestionably be regulated when doing so “contributes to the maintenance of

order and decorum within the educational system.” Id. at 748; accord Tinker, 393

U.S. at 514, 89 S. Ct. at 740 (holding that a school may not prohibit expressive

activity unless there are “facts which might reasonably have led school authorities

to forecast substantial disruption of or material interference with school

activities”); Shanley, 462 F.2d at 969 (“The test for curtailing in-school exercise

of expression is whether or not the expression or its method of exercise ‘materially

and substantially’ interferes with the activities or discipline of the school.”). This

doctrine allows school authorities to prohibit, among other things, “lewd, indecent,

or offensive speech . . . . The First Amendment does not prevent the school

officials from determining that to permit a vulgar and lewd speech such as

respondent’s would undermine the school’s basic educational mission.” Bethel

Sch. Dist. v. Fraser, 478 U.S. 675, 683, 685, 106 S. Ct. 3159, 3164-65, 92 L. Ed.

2d 549 (1986); see also Healy v. James, 408 U.S. 169, 189, 92 S. Ct. 2338, 2350,

32
33 L. Ed. 2d 266 (1972) (“[First Amendment] [a]ssociational activities need not be

tolerated where they infringe reasonable campus rules, interrupt classes, or

substantially interfere with the opportunity of other students to obtain an

education.”).

However, in assessing the reasonableness of regulations that tread upon

expression, we cannot simply defer to the specter of disruption or the mere

theoretical possibility of discord, or even some de minimis, insubstantial impact

on classroom decorum. Particularly given the fact that young people are required

by law to spend a substantial portion of their lives in classrooms, student

expression may not be suppressed simply because it gives rise to some slight,

easily overlooked disruption, including but not limited to “a showing of mild

curiosity” by other students, see Burnside, 363 F.2d at 748, “discussion and

comment” among students, Reineke v. Cobb Cty. Sch. Dist., 484 F. Supp. 1252,

1261 (N.D. Ga. 1980), or even some “hostile remarks” or “discussion outside of

the classrooms” by other students, Tinker, 393 U.S. at 508, 514, 89 S. Ct. at 737,

740. For example, one district court correctly found that a teacher was unjustified

in censoring an article in the school newspaper because it was “inconceivable that

the use of the word ‘damn’ one time in the newspaper would have caused material

33
and substantial interference with school activities.” Reineke, 484 F. Supp. at

1258.

The dissent concludes that Holloman’s gesture was unprotected because

“[t]he students’ comments [to Allred after class] demonstrate that they at least

focused their attention during a portion of the recitation of the Pledge on

Holloman’s fist . . . rather than on the planned curriculum of saying the Pledge.”

This approach appears to ignore the principle discussed above that student

expression must cause (or be likely to cause) a “material[] and substantial[]”

disruption, Burnside, 363 F.2d at 749, and more than a brief, easily overlooked, de

minimum impact, before it may be curtailed. The dissent argues that Holloman’s

act was “meant to compete for students’ attention.” The same can be said of any

of the forms of student expression that have been found to be protected, including

the wearing of armbands or buttons in class. A student expressing himself in those

ways clearly intends to attract the other students’ attention and have them

consider, however briefly, the meaning behind the symbolism. Indeed, if a

student’s attention is never focused, if even for a moment, on the expression, it

becomes pointless. Under the dissent’s approach, where schools may prohibit any

speech or acts that do anything to distract a student’s mind—however briefly or

34
insubstantially—from the planned curriculum, constitutional protection for student

expression by definition would be eliminated.

This point was made quite clearly in Parducci v. Rutland, 316 F. Supp. 352

(M.D. Ala. 1970), where a teacher was terminated because she assigned a short

story that school administrators found offensive. The district court recognized that

First Amendment freedoms in public schools, including a teacher’s right to

academic freedom, could be constitutionally abridged under Tinker and Burnside

only if there was a realistic threat that the conduct at issue would “materially and

substantially interfere with the requirements of appropriate discipline in the

operation of the school.” Id. at 355. The court, correctly applying our precedents,

held:

Rather than there being a threatened or actual substantial disruption to
the educational processes of the school, the evidence reflects that the
assigning of the story was greeted with apathy by most of the
students. Only three of plaintiff's students asked to be excused from
the assignment. On this question of whether there was a material and
substantial threat of disruption, the Principal testified at the School
Board hearing that there was no indication that any of plaintiff’s other
87 students were planning to disrupt the normal routine of the school.
This Court now specifically finds and concludes that the conduct for
which plaintiff was dismissed was not such that “would materially
and substantially interfere with” reasonable requirements of discipline
in the school.

35
Id. at 356. There is no evidence in the record to suggest that Holloman’s gesture

caused any more disturbance or unrest than Parducci’s assignment. By focusing

entirely on whether students may have been momentarily “distracted,” rather than

on whether the distraction or disruption was “material” or “substantial,” the

dissent gives insufficient protection to students’ First Amendment rights and

incorrectly applies our precedents.

While certain types of expression unquestionably cause enough of a threat

of disruption to warrant suppression even before negative consequences occur,

“undifferentiated fear or apprehension of disturbance is not enough to overcome

the right to freedom of expression,” even in schools. Tinker, 393 U.S. at 508, 89

S. Ct. at 737. “[T]here must be demonstrable factors that would give rise to any

reasonable forecast by the school administration of ‘substantial and material’

disruption of school activities before expression may be constitutionally

restrained.” Shanley, 462 F.2d at 974; accord Marshall, 337 F. Supp. at 135

(suggesting that a “speculative fear” is insufficient to justify restrictions on student

expression, but a “real and immediate fear of conduct potentially disruptive of the

university routine” is enough).

We recognize that this test is more restrictive than the parsimonious

interpretation of students’ First Amendment freedoms offered in Ferrell v. Dallas

36
Indep. Sch. Dist., 392 F.2d 697 (5th Cir. 1968). In Ferrell, a high school principal

suspended students in a rock-and-roll band for growing their hair too long. This

court upheld the principal’s regulation because the principal felt “that the length

and style of the boys’ hair would cause commotion, trouble, distraction, and a

disturbance in the school . . . .” Id. at 699. To the degree this ruling is based on

the principal’s abstract concerns, it is patently inconsistent with the principle

articulated in Tinker, Burnside, and numerous other cases discussed throughout

this Subsection, that there must be a real or substantial threat of actual disorder, as

opposed to the mere possibility of one. We are bound to follow Burnside rather

than Ferrell because it is the earlier case. See Local Union 48 Sheet Metal

Workers v. S.L. Pappas & Co., 106 F.3d 970, 975 (11th Cir. 1997). Similarly, we

must follow Tinker rather than Ferrell because it is an intervening, inconsistent

Supreme Court decision. See Lufkin v. McCallum, 956 F.2d 1104, 1107 (11th

Cir. 1992). Consequently, we apply the Tinker-Burnside doctrine in this case.

This Tinker-Burnside standard we reaffirm today was applied in Banks v.

Bd. of Public Instr., 314 F. Supp. 285 (S.D. Fla. 1970), vacated by 401 U.S. 988,

91 S. Ct. 1223, 28 L. Ed. 2d 526 (1971), reinstated without published opinion by

dist. ct. and aff’d, 450 F.2d 1103 (5th Cir. 1971), a case similar to this one, where

a student was suspended for failing to stand during the Pledge of Allegiance. The

37
district court held, “The conduct of Andrew Banks in refusing to stand during the

pledge ceremony constituted an expression of his religious beliefs and political

opinions. His refusal to stand was no less a form of expression than the wearing

of the black armband was to Mary Beth Tinker. He was exercising a right ‘akin to

pure speech.’” Id. at 295. While at first glance it might seem like Banks’s right to

be free from compelled speech was at issue in that case, the above quote from the

district court makes clear that its ruling was not based on Banks’s First

Amendment right to remain silent, but his First Amendment right to affirmatively

express himself. Both the school administration and the court in that case

perceived Banks’s act of remaining seated while everyone else was standing as an

expressive act, rather than a mere refusal to speak. In upholding his right to act in

such a way, the district court observed, “The unrefuted testimony clearly reflects

that the plaintiff’s refusal to stand has not caused any disruption in the educational

process.” Id.; cf. Jenkins v. Louisiana State Bd. of Educ., 506 F.2d 992 (5th Cir.

1975) (upholding restrictions on college students’ activities because “[t]he actions

of appellants resulted in a material disruption of the campus and of the rights of

others. They were not protected by the First Amendment.”). We therefore find

Banks to be fully consistent with the approach mandated by Burnside and Tinker,

and conclude that Holloman’s gesture was sufficiently akin to Banks’s refusal to

38
stand (in that neither had any real impact on class discipline) as to be entitled to

First Amendment protection.

Our cases involving “freedom buttons” are perhaps even more instructive.

In Blackwell v. Issaquena Cty. Bd. of Educ., 363 F.2d 749 (5th Cir. 1966), black

elementary school students wore “freedom buttons” to class in support of the civil

rights movement.

[S]ome of these students were creating a disturbance by noisily
talking in the hall when they were scheduled to be in class . . . .
[Some students] accosted other students by pinning the buttons on
them even though they did not ask for one. One of the students tried
to put a button on a younger child who began crying. This activity
created a state of confusion, disrupted class instruction, and resulted
in a general breakdown of orderly discipline.

Id. at 750-52 (footnote omitted). We held that the principal did not violate the

students’ constitutional rights by punishing them for their behavior and, under

those circumstances, banning the buttons from the school. Such a restriction on

student expression was justified, notwithstanding the First Amendment, because

the “students conducted themselves in a disorderly manner, disrupted classroom

procedure, interfered with the proper decorum and discipline of the school and

disturbed other students who did not wish to participate in the wearing of the

buttons.” Id. at 753.

39
 In Burnside, however, the same panel of this court, on the same day,

emphasized that the mere possibility of such consequences did not justify a

different school in banning freedom buttons. 363 F.2d at 748 (overturning

school’s ban on freedom buttons because “affidavits and testimony before the

District Court reveal no interference with educational activity and do not support a

conclusion that there was a commotion or that the buttons tended to distract the

minds of the students away from their teachers”) (emphasis omitted). The

Burnside-Blackwell dyad demonstrates that the permissibility of a restriction on

student expression cannot be determined in the abstract, but must be assessed with

at least one eye toward the actual or likely (not merely potential) impact of that

expression on the learning environment. Conduct that may be constitutionally

protected in one school or under one set of circumstances may tend to incite

disruption or disorder—and so be constitutionally proscribable—in others. Where

students’ expressive activity does not materially interfere with a school’s vital

educational mission, and does not raise a realistic chance of doing so, it may not

be prohibited simply because it conceivably might have such an effect.

b.

Allred maintains that it was appropriate for her to discipline Holloman

because the other students were disturbed by his demonstration. She claims a

40
number of them came up to her after class and told her that what he did wasn’t

“right.” She also expressed concern that his behavior would lead to further

disruptions by other students.

The fact that other students may have disagreed with either Holloman’s act

or the message it conveyed is irrelevant to our analysis. See Tinker, 393 U.S. at

509, 89 S. Ct. at 738 (“In order for the State in the person of school officials to

justify prohibition of a particular expression of opinion, it must be able to show

that its action was caused by something more than a mere desire to avoid the

discomfort and unpleasantness that always accompany an unpopular viewpoint.”);

Near v. Minnesota, 283 U.S. 697, 722, 51 S. Ct. 625, 633, 75 L. Ed. 2d 1357

(1931) (“If the township may prevent the circulation of a newspaper for no reason

other than that some of its inhabitants may violently disagree with it, and resent its

circulation by resorting to physical violence, there is no limit to what may be

prohibited.”) (quotation and citation omitted).

Nor is Holloman’s expression removed from the realm of constitutional

protection simply because the students cloaked their disagreement in the guise of

offense or disgust. Holloman’s behavior was not directed “toward” anyone or any

group and could not be construed by a reasonable person (including a high school

student) as a personal offense or insult.

41
 Ferrell v. Dallas Indep. Sch. Dist. arguably supports Allred’s position. In

Ferrell, this court held that a school could prohibit students from wearing long hair

simply because their choice of hairstyle “provoked” other students into breaking

school rules and the law by responding violently. The court justified the hair-

length regulation by pointing to such considerations:

On one occasion a group of boys in his school had decided that a
classmate's hair was too long and that they were going to take the
matter in their own hands and trim it themselves. Mr. Lanham stated
that boys with long hair were subjected to substantial harassment.
Obscene language had been used by some students in reference to
others with long hair and girls had come to his office complaining
about the language being used. The long hair boys had also been
challenged to a fight by other boys who did not like long hair. Also,
long hair boys had been told by others that the girl's restroom was
right down the hall.

392 F.2d at 700-01.

Allowing a school to curtail a student’s freedom of expression based on

such factors turns reason on its head. If certain bullies are likely to act violently

when a student wears long hair, it is unquestionably easy for a principal to

preclude the outburst by preventing the student from wearing long hair. To do so,

however, is to sacrifice freedom upon the alter of order, and allow the scope of our

liberty to be dictated by the inclinations of the unlawful mob. If bullies disrupted

classes and beat up a student who refused to join the football team, the proper

42
solution would not be to force the student to join the football team, but to protect

the student and punish the bullies. If bullies disrupted classes and beat up a

student because he wasn’t wearing fancy enough clothes, the proper solution

would not be to force the student to wear Abercrombie & Fitch or J. Crew attire,

but to protect the student and punish the bullies. The same analysis applies to a

student with long hair, who is doing nothing that the reasonable person would

conclude is objectively wrong or directly offensive to anyone. The fact that other

students might take such a hairstyle as an incitement to violence is an indictment

of those other students, not long hair.

Such reasoning is part of the basis for Street v. New York, 394 U.S. 576,

592, 89 S. Ct. 1354, 1365, 22 L. Ed. 2d 572 (1969), where the Supreme Court held

that “the possible tendency of appellant’s words to provoke violent retaliation” is

not a basis for banning those words unless they are “fighting words.” Street’s

conviction was reversed because “[t]hough it is conceivable that some listeners

might have been moved to retaliate upon hearing appellant’s disrespectful words,

we cannot say that appellant’s remarks were so inherently inflammatory as to

come within that small class of ‘fighting words’ which are ‘likely to provoke the

average person to retaliation, and thereby cause a breach of the peace.’” Id.

(quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S. Ct. 766, 770, 86

43
L. Ed. 1031 (1942)); see also Cantwell v. Connecticut, 310 U.S. 296, 308-10, 60

S. Ct. 900, 905-06, 84 L. Ed. 1213 (1940) (reversing conviction for breaching the

peace in a case where there was “no assault or threatening of bodily harm, no

truculent bearing, no intentional discourtesy, no personal abuse”).

While the same constitutional standards do not always apply in public

schools as on public streets, we cannot afford students less constitutional

protection simply because their peers might illegally express disagreement through

violence instead of reason. If the people, acting through a legislative assembly,

may not proscribe certain speech, neither may they do so acting individually as

criminals. Principals have the duty to maintain order in public schools, but they

may not do so while turning a blind eye to basic notions of right and wrong.

Thus, under the Tinker-Burnside doctrine, we are required to reject this

portion of Ferrell, as well. Even if Allred were correct in fearing that other

students may react inappropriately or illegally, such reactions do not justify

suppression of Holloman’s expression. Holloman’s expression was

constitutionally protected because the record reveals no way in which he

“materially and substantially interfere[d] with the requirements of appropriate

discipline in the operation of the school.” Burnside, 363 F.2d at 749.

44
 c.

On appeal, Allred repeatedly emphasizes that Holloman was punished not

for his act, but for disobeying directions from her and Harland as to the only

permissible ways to salute the flag. By raising his fist in the air the next day,

Holloman contravened these instructions. Consequently, Allred argues, Holloman

was punished for insubordination for violating these orders, rather than for

exercising a First Amendment right.

Although Holloman failed to salute the flag in a manner amenable to Allred,

“the protections of the First Amendment do not extend solely to speech which

is well-mannered and attentive to the preferences of others.” Sabel v.

Stynchcombe, 746 F.2d 728, 731 (11th Cir. 1984). As discussed throughout this

Subsection, Holloman had the constitutional right to raise his fist during the

Pledge of Allegiance so long as he did not disrupt the educational process or the

class in any real way.

Allred could not prevent Holloman from exercising a constitutional right

simply by telling him not to do so. School officials may not punish indirectly,

through the guise of insubordination, what they may not punish directly. See

Rutland, 316 F. Supp. at 358 (ordering reinstatement of public high school teacher

who was dismissed in violation of the First Amendment for assigning a short story

45
administrators found objectionable because “plaintiff’s ‘insubordination’ was not

insubordination in any sense and was not, in reality, a reason for the School

Board's action”); Dickey v. Alabama State Bd. of Educ., 273 F. Supp. 613, 618

(M.D. Ala. 1967) (“The attempt to characterize Dickey's conduct, and the basis for

their action in expelling him, as ‘insubordination’ requiring rather severe

disciplinary action, does not disguise the basic fact that Dickey was expelled from

Troy State College for exercising his constitutionally guaranteed right of academic

and/or political expression.”), vacated as moot sub nom. Troy State Univ. v.

Dickey, 402 F.2d 515 (5th Cir. 1968). Allred lacked the right to proscribe his

behavior in the first place; neither she nor Harland could punish Holloman for

violating a directive that was a constitutional nullity.

Consequently, we have no choice but to conclude as a matter of law that

Holloman successfully articulated a violation of his First Amendment right to

freedom of expression by Harland and Allred. We now must assess whether these

rights were “clearly established” at the time of the incidents.

2.

This circuit was recently chastised by the Supreme Court for taking an

unwarrantedly narrow view of the circumstances in which public officials can be

46
held responsible for their constitutional violations. See Vaughan v. Cox, 343 F.3d

1323, 1332 (11th Cir. 2003) (“[T]he Supreme Court in Hope cautioned that we

should not be unduly rigid in requiring factual similarity between prior cases and

the case under consideration.”). The law of this circuit used to be that a

government actor could be denied qualified immunity only for acts that are “so

obviously wrong, in light of the pre-existing law, that only a plainly incompetent

officer or one who was knowingly violating the law would have done such a

thing.” Lassiter v. Alabama A. & M. Univ., 28 F.3d 1146, 1149 (11th Cir. 1994)

(en banc). The Supreme Court, specifically citing Lassiter (along with a handful

of other Eleventh Circuit cases), held that “[t]his rigid gloss in the qualified

immunity standard . . . is not consistent with [the Supreme Court’s] cases.” Hope

v. Pelzer, 536 U.S. 730, 739 & n.9, 122 S. Ct. 2508, 2515 & n.9, 153 L. Ed. 2d

666 (2002).

While officials must have fair warning that their acts are unconstitutional,

there need not be a case “on all fours,” with materially identical facts, before we

will allow suits against them. A principle of constitutional law can be “clearly

established” even if there are “notable factual distinctions between the precedents

relied on and the cases then before the Court, so long as the prior decisions gave

reasonable warning that the conduct at issue violated constitutional rights.”

47
United States v. Lanier, 520 U.S. 259, 269, 117 S. Ct. 1219, 1227, 137 L. Ed. 2d

432 (1997); Hope, 538 U.S. at 741, 122 S. Ct. at 2516 (“[O]fficials can still be on

notice that their conduct violates established law even in novel factual

circumstances. Indeed, in Lanier, we expressly rejected a requirement that

previous cases be ‘fundamentally similar.’”).

In our pre-Hope jurisprudence, we held that

[g]eneral rules, propositions, or abstractions . . . do not determine
qualified immunity. Instead, the circumstances that confronted the
government actor must have been materially similar to prior
precedent to constitute clearly established law because public
officials are not obligated to be creative or imaginative in drawing
analogies from previously decided cases. For qualified immunity to
be surrendered, pre-existing law must dictate, that is, truly compel
(not just suggest or allow or raise a question about), the conclusion
for every like-situated, reasonable government agent that what
defendant is doing violates federal law in the circumstances.

Wood v. City of Lakeland, 203 F.3d 1288, 1291-92 (11th Cir. 2000) (citations and

quotations omitted).

As discussed above, Hope reminds us that we need no longer focus on

whether the facts of a case are “materially similar to prior precedent.” Moreover,

Hope emphasized that “general statements of the law are not inherently incapable

of giving fair and clear warning . . . [A] constitutional rule already identified in the

decisional law may apply with obvious clarity to the specific conduct in question,

48
even though the very action in question has [not] previously been held unlawful.”

536 U.S. at 741, 122 S. Ct. at 2516 (quotations omitted). Thus, we do not just

compare the facts of an instant case to prior cases to determine if a right is “clearly

established;” we also assess whether the facts of the instant case fall within

statements of general principle from our precedents. See Vinyard v. Wilson, 311

F.3d 1340, 1351 (11th Cir. 2002) (“When looking at case law, some broad

statements of principle in case law are not tied to particularized facts and can

clearly establish law applicable in the future to different sets of detailed facts.”).

Hope seems to have abrogated many of the other standards articulated in

Wood, as well. For example, Wood’s requirement that a particular conclusion

must be “dictate[d], that is, truly compel[led]” intimates a level of absolute crystal-

clear certainty about precedent that forms no part of Hope’s requirements. To the

degree there exists a conflict between Hope and our earlier cases, we are, of

course, bound to follow the Supreme Court’s intervening ruling. See Lufkin v.

McCallum, 956 F.2d 1104, 1107 (11th Cir. 2000). Since Hope, many of our cases

have applied its standard to the exclusion of our earlier, more rigorous doctrinal

tests. See, e.g., Holmes v. Kucynda, 321 F.3d 1069, 1077-78 (11th Cir. 2003);

Dahl v. Holley, 312 F.3d 1228, 1233 (11th Cir. 2002); Weaver v. Bonner, 309

F.3d 1312, 1324 (11th Cir. 2002). Hope emphasizes that, notwithstanding more

49
stringent standards articulated in some of our earlier cases, “the salient

question . . . is whether the state of the law [at the time of the events in question]

gave respondents fair warning that their alleged treatment of [the plaintiff] was

unconstitutional.” 536 U.S. at 741, 122 S. Ct. at 2516.

Turning to Holloman’s claims, we find that, as of May 16, 2000, the Tinker-

Burnside standard was clearly established and sufficiently specific as to give the

defendants “fair warning” that their conduct was constitutionally prohibited. We

do not find it unreasonable to expect the defendants—who holds themselves out as

educators—to be able to apply such a standard, notwithstanding the lack of a case

with material factual similarities. While we have not traditionally called upon

government officials to be “creative or imaginative” in determining the scope of

constitutional rights, see Adams v. St. Lucie Cty. Sheriff’s Dep’t, 962 F.2d 1563,

1575 (11th Cir. 1992) (Edmondson, J., dissenting), neither are they free of the

responsibility to put forth at least some mental effort in applying a reasonably

well-defined doctrinal test to a particular situation. Our precedents would be of

little value if government officials were free to disregard fairly specific statements

of principle they contain and focus their attention solely on the particular factual

scenarios in which they arose.

50
 The Tinker-Burnside test calls for teachers to assess two factors: (1)

whether a student is engaged in expression (either pure speech or expressive

conduct) and (2) whether the expression is having a non-negligible disruptive

effect, or is likely to have such an effect, on classroom order or the educational

process. The first factor is quite easy to apply; the test for determining whether an

act constitutes expressive conduct is whether the “reasonable person” would

perceive it as such. See Spence, 418 U.S. at 410-11, 94 S. Ct. at 2730.

Consequently, a teacher or principal should have no problem determining whether

a student is engaged in expression. Indeed, given the myriad forms of expression,

we should be hesitant about requiring that a means of expression be the subject of

a previous case before offering the speaker full § 1983 protection.

The second factor should also be quite effortless for an educator to apply. A

teacher or principal should be able to instantly recognize whether a student is

disrupting class, and it should not be too hard to determine whether a student’s

activities are likely to have such an effect. Consequently, we do not find the

Tinker-Burnside test to be of such an unreasonable level of generality that Allred

and Harland could not have been expected to apply it in this case. Cf. Thomas v.

Roberts, 323 F.3d 950 (11th Cir. 2003) (“[W]here the applicable legal standard is

a highly general one, such as ‘reasonableness,’ preexisting caselaw that has

51
applied general law to specific circumstances will almost always be necessary to

draw a line that is capable of giving fair and clear notice that an official's conduct

will violate federal law.”). Because this standard is “clearly established,” is not at

an unreasonable high level of generality, and when applied to the facts of

Holloman’s case yields a fairly determinate result that should have been clear,

Allred and Harland are not entitled to summary judgment on qualified immunity

grounds against Holloman’s Speech Clause claim concerning his right to

affirmative expression. The Tinker-Burnside principle gave them “clear notice”

that their conduct violated Holloman’s constitutional rights; unlike the dissent, we

believe that teachers are well equipped to “readily determine what conduct falls

within” the Tinker-Burnside standard.

Indeed, Holloman’s right to silently raise his fist during the Pledge of

Allegiance would even be considered “clearly established” under Barnette. As

discussed earlier, he clearly had the right to remain silent during the Pledge of

Allegiance; we would be very reluctant to conclude that Holloman somehow shed

the protection of the First Amendment simply by lifting his fist into the air while

exercising this right. Allred and Harland are essentially asking us to distinguish,

on constitutional grounds, between a student with his hands in his pockets or at his

52
sides (like Hutto) and a student with his hand in the air. This is a hair we will not

split; First Amendment protections are not lost that easily.

D.

The dissent takes issue with the analysis in Subpart C, contending that

Holloman’s expression is unprotected because it “is the sort of activity that

competes with the teacher for the students’ attention.” For the reasons discussed

in the previous Subpart, we do not believe that Holloman’s activity, which had

virtually no impact on the class, was sufficient under Tinker and Burnside to fall

outside the realm of constitutional protection. However, even if we (or a jury,

based on the facts as they unfold at trial) were to find that Holloman’s expression

did “materially and substantially interfere with the requirements of appropriate

discipline,” Holloman would still be able to articulate a violation of his First

Amendment rights.

One of the most egregious types of First Amendment violations is

viewpoint-based discrimination. See Chandler v. James, 180 F.3d 1254, 1265

(11th Cir. 1999) (noting that “viewpoint discrimination[] [is] the most egregious

form of content-based censorship”); Searcey v. Harris, 888 F.2d 1314, 1324 (11th

Cir. 1989) (“The prohibition against viewpoint discrimination is firmly embedded

53
in first amendment analysis.”). Government actors may not discriminate against

speakers based on viewpoint, even in places or under circumstances where people

do not have a constitutional right to speak in the first place. See Uptown Pawn &

Jewelry, Inc. v. City of Hollywood, 337 F.3d 1275, 1277 (11th Cir. 2003)

(“[R]estrictions on nonpublic forums need only be reasonable and not viewpoint

discriminatory.”); Adler v. Duval County Sch. Bd., 206 F.3d 1070, 1081 (11th Cir.

2002) (“The Supreme Court has consistently held that in nonpublic fora the

government may not engage in viewpoint discrimination.”). We have expressly

recognized that this fundamental prohibition against viewpoint-based

discrimination extends to public schoolchildren, as well, stating, “[W]e do not

believe [that Supreme Court precedent] offers any justification for allowing

educators to discriminate based on viewpoint. . . . Without more explicit direction,

we will continue to require school officials to make decisions relating to speech

which are viewpoint neutral.” Searcey, 888 F.2d at 1325. Consequently, even if

Holloman did not have the right to express himself in the manner he did, his rights

were still violated if he was punished because Allred disagreed or was offended by

what he said.

This theory was most clearly applied in R.A.V. v. St. Paul, 505 U.S. 377,

112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). That case involved an ordinance

54
which made it a crime to place a “burning cross or Nazi swastika, which one

knows or has reasonable grounds to know arouses anger, alarm or resentment in

others on the basis of race, color, creed, religion or gender.” Id. at 380, 112 S. Ct.

at 2541. The Supreme Court accepted the Minnesota Supreme Court’s

construction of the statute as prohibiting only “fighting words,” a constitutionally

proscribable category of expression. Id. at 380-31, 112 S. Ct. at 2541. The Court

nevertheless invalidated the statute because, in the course of prohibiting conduct

the state had the right to criminalize, it made a viewpoint-based distinction.

The Court acknowledged that people do not have the First Amendment right

to use fighting words. Id. at 382, 112 S. Ct. at 2542-43. The Court emphasized,

however, “What [that] means is that these areas of speech can, consistently with

the First Amendment, be regulated because of their constitutionally proscribable

content (obscenity, defamation, etc.)—not . . . that they can be made the vehicles

for content discrimination unrelated to their distinctively proscribable content.”

Id. at 383, 112 S. Ct. at 2543. Thus,

a particular instance of speech can be proscribable on the basis of one
feature (e.g. obscenity) but not on the basis of another (e.g. opposition
to the city government) . . . . [Moreover,] the power to proscribe
particular speech on the basis of a noncontent element (e.g. noise)
does not entail the power to proscribe the same speech on the basis of
a content element . . . .

55
Id. at 385-86, 112 S. Ct. at 2544. Applying this standard, the Court held that the

ordinance was unconstitutional because “[d]isplays containing abusive invective,

no matter how vicious or severe, are permissible unless they are addressed to one

of the specified disfavored topics.” Id. at 391, 112 S. Ct. at 2547. Moreover, the

ordinance went beyond general content discrimination “to actual viewpoint

discrimination. . . . ‘[F]ighting words’ that do not themselves invoke race, color,

creed, religion, or gender . . . would seemingly be usable ad libitum in the placards

of those arguing in favor of racial, color, etc., tolerance and equality, but could not

be used by those speakers’ opponents.” Id. at 391, 112 S. Ct. at 2547-48.

Thus, even though Minneapolis had the unquestioned power to prohibit

fighting words, it could not draw viewpoint based distinctions by targeting certain

fighting words because of the repugnant message they conveyed. Applying this

principle to the instant case, it becomes clear why Allred may potentially be held

liable under the First Amendment even if Holloman was not engaging in

constitutionally protected speech. Although Allred has the authority under the

Tinker-Burnside standard to proscribe student expression that materially and

substantially disrupts the class, she may not punish such expression based on the

fact that she disagrees with it. Even when engaging in speech that is not directly

56
constitutionally protected, Holloman still has the First Amendment right to be free

from viewpoint discrimination.

The record, interpreted in the light most favorable to Holloman, more than

amply supports his argument that he was punished for the substance of his

unpatriotic views rather than an alleged disruption of class. Allred admitted in her

deposition that when Hutto simply refused to recite the pledge of allegiance, she

was “hurt” and “[v]ery disappointed in him” because “[h]e was a leader of the

class . . . . [and] looked up to a great deal.” Moreover, she because of “the

freedoms we enjoy in this country,” she couldn’t understand how he wouldn’t

want to pledge. She emphasized, “It broke my heart, you know.” Given that

Hutto was chastised and ultimately forced by Harland to apologize simply for

remaining silent during the flag salute, a jury could reasonably conclude that

Allred’s punishment of Holloman was based on similar motivations.

When Holloman allegedly asked Allred about the ways in which students

were permitted to salute the flag, she told him that he could either do so with his

hand over his heart or in a military-type salute. She explained, “In our country, the

normal way is putting your hand over your heart. That’s the way you see everyone

do it, the ball players on TV.” Any other way is prohibited because it “is not the

normal acceptance [sic] of saying the pledge in our country.” She considered what

57
he did “disrespectful” because “[i]t’s going against the normal procedure behavior

[sic] of pledging to our American flag.” Holloman’s gesture is “not an acceptable

behavior in this country.” She emphasized, “You just salute the way Americans

salute and pledge. That’s a given.” Although she maintained that this disrespect

to the flag wasn’t the reason she actually punished Holloman, these statements

would allow a jury to conclude that her actions were motivated by her

disagreement with and offense at the unpatriotic views expressed by Holloman’s

gesture.

Harland expressed a similar attitude. According to Vice Principal Jason

Adkins, Harland was “angry and disappointed and upset” that Hutto declined to

salute the American flag. Harland threatened to rescind his recommendation of

Hutto to the Air Force Academy. Again, such views toward the Pledge of

Allegiance support Holloman’s claim that he was punished for the offensive

viewpoint he expressed.

Especially when considered in light of the virtually nonexistent evidence

that Holloman disrupted the class in any way (discussed in the previous Subpart),

the record virtually compels the conclusion (for summary judgment purposes) that

both the fact and extent of his punishment stemmed from the fact that Allred and

Harland found his ostensibly unpatriotic views repugnant and offensive. Indeed,

58
many of our cases have used evidence such as this to support a finding that a

particular governmental act was motivated by unconstitutional viewpoint

discrimination. See, e.g., Chandler v. Georgia Public Telecomm. Comm’n, 917

F.2d 486, 491-92 (“The transcript of the evidentiary hearing held by the district

court is replete with statements by Dr. Cooper, the executive director of [the state

agency], that [the agency] decided that the viewpoints of the Libertarians were less

valuable than those of the Democrats and Republicans.”).

As emphasized earlier, the evidence at trial may prove that Allred did not

discipline Holloman because of his viewpoint, but for a legitimate reason.

Interpreting the evidence in Holloman’s favor for summary judgment purposes,

however, we must conclude that her motive was discriminatory. Because

Holloman had the right to be free from viewpoint discrimination, and that right

was clearly established (both in general as well as in the public school context)

under the precedents discussed above, we must deny Allred qualified immunity at

this stage. As Justice Blackmun reminds us, “[I]f educators intentionally may

eliminate all diversity of thought, the school will strangle the free mind at its

source and teach youth to discount important principles of our government as mere

platitudes.” Bd. of Educ. v. Pico, 457 U.S. 853, 879, 102 S. Ct. 2799, 2814, 73 L.

Ed. 2d 435 (1982) (Blackmun, J., concurring in part). Consequently, even if the

59
dissent’s contention (that Holloman’s conduct is not protected under the Tinker-

Burnside standard) is correct, Holloman’s punishment would still have violated

the First Amendment. Viewpoint discrimination is another First-Amendment

avenue for recovery that Holloman is entitled to pursue at trial.

Having concluded that Allred and Harland are not entitled to summary

judgment on qualified immunity grounds against any of the three ways in which

Holloman can articulate Speech Clause claims against them, we now turn to his

Establishment Clause claim against them.

III.

Holloman claims that his rights under the Establishment Clause were

violated by Allred’s daily moment of silent prayer. The district court granted both

Allred and Harland summary judgment against this claim. While Holloman’s brief

on appeal vigorously contests this ruling as it applies to Allred, he does not even

mention whether Harland was entitled to qualified immunity on this claim.

Consequently, we are forced to conclude that Holloman has abandoned his appeal

regarding Harland’s summary judgment on qualified immunity grounds against

60
Holloman’s Establishment Clause claim.9 We reverse the district court’s grant of

summary judgment on this claim to Allred, however.

As noted in Part II, the first step in assessing the viability of a qualified

immunity defense is to determine whether the government official defendant was

engaged in a “discretionary function” in performing the acts of which the plaintiff

complains. This entails a two-step analysis: we begin by ascertaining whether the

defendant was pursuing a job-related goal, and then examine whether the type of

action in which she was engaging to further this goal was authorized.

We are willing to assume that Allred satisfies the first prong of this test

because she was attempting to pursue the legitimate job-related function of

fostering her students’ character education by teaching compassion. She

nevertheless fails the second prong of the “discretionary function” test because she

was not pursuing this job-related goal through legitimate means that fell within her

powers. While fostering character development and moral education were

undoubtedly parts of Allred’s official responsibilities, this does not automatically

9
Based on the record before us, it appears as if Holloman would be able to articulate a
number of ways in which Harland could be held liable under a supervisoral theory of liability.
As discussed earlier, qualified immunity is not a defense to a § 1983 suit premised on
supervisoral liability. Because Holloman failed to articulate such a cause of action at any point
before the district court, we need not consider the viability of such claims here.

61
empower her to do anything within her judgment that furthers those goals; she

cannot educate students at all costs.

Praying goes sufficiently beyond the range of activities normally performed

by high school teachers and commonly accepted as part of their job as to fall

outside the scope of Allred’s official duties, even if she were using prayer as a

means of achieving a job-related goal. It is not within the range of tools among

which teachers are empowered to select in furtherance of their pedagogical

duties.10 Prayer is a relatively sui generis activity. Put another way, even ignoring

Holloman’s Establishment Clause claims, praying still would not be part of a

public school teacher’s responsibilities or duties.

We emphasize that, at this juncture, we are not denying Allred summary

judgment on qualified immunity grounds against this claim because we feel her

acts violated the Establishment Clause. Instead, we are holding her ineligible for

qualified immunity as a matter of law because she failed to establish that her

act—this type of act— fell within her duties or powers as a teacher. The fact that

Allred is a teacher does not mean that anything she says or does in front of a

10
We emphasize that students were not studying the Bible as part of a course on
literature, or singing a religious hymn in a music class, or analyzing a prayer as a poem, but
instead were actually encouraged to pray. Cf. Stone v. Graham, 449 U.S. 39, 42, 101 S. Ct. 192,
194, 66 L. Ed. 2d 199 (1980) (“This is not a case in which the Ten Commandments are integrated
into the school curriculum, where the Bible may constitutionally be used in an appropriate study
of history, civilization, ethics, comparative religion, or the like.”).

62
classroom necessarily constitutes an exercise of her discretionary powers or is a

job-related function. Prayer is distinct from the type of civil virtue and secular

moralism Alabama sought to promote through its character education program.

Consequently, Allred is not even potentially entitled to summary judgment on

qualified immunity grounds against Holloman’s Establishment Clause claim.

The dissent takes issue with this conclusion, concluding that school prayer

is a type of act that falls within the scope of a public school teacher’s discretionary

authority. It argues, “It was certainly within the scope of a public high school

teacher’s authority to lead students in prayer prior to 1962, when the Court ruled

that teacher led prayer in public schools is a violation of the Establishment

Clause.” This analysis is beside the point. In determining whether a public

official is authorized to perform a certain type of act (abstracting away from its

unconstitutional aspects), we look to the scope of their authority as it exists today,

and do not inquire as to what the forty-year old root causes of the present-day

situation may have been. Prayer is not a type of act that falls within a reasonably

specific category of actions that teachers are authorized to perform; there is no

easy way of abstracting away its unconstitutional aspects to arrive at a type of

behavior that falls within teachers’ discretionary authority.

63
 Moreover, we decline to embark on a sociological inquiry—one for which

this court is singularly unequipped—in which we weigh Supreme Court rulings

against other important stimuli that has led to the gradual secularization of this

country over the past half century to determine why prayer is not a type of act that

public school teachers are empowered to perform. Consequently, Allred acted

outside her discretionary authority and is not even potentially eligible to invoke

qualified immunity against Holloman’s Establishment Clause claims.

IV.

The district court granted Allred summary judgment on qualified immunity

grounds against Holloman’s Establishment Clause claims because it concluded

that her daily moment of silent prayer did not violate Holloman’s constitutional

rights, and that even if it did, those rights were not clearly established at the time

of the incident. In Part III, we reversed the court’s grant of qualified immunity

because Allred had failed to establish that she had been performing a discretionary

function in conducting this moment of silent prayer. In this Part, we conclude that

Holloman demonstrated sufficient evidence to support the conclusion that Allred

had violated clearly established rights under the Establishment Clause. We

include this discussion as a preface to Part V, where we assess the liability of the

64
School Board. Logically enough, the only way Holloman can maintain his

Establishment Clause suit against the School Board is if he demonstrates, as a

threshold matter, that his Establishment Clause rights were violated.11

A.

The Establishment Clause of the First Amendment states, “Congress shall

make no law respecting an establishment of religion . . . .” U.S. Const. amend I.

This restriction has been made applicable to states, as well as state-created entities

and their employees, through the Due Process Clause of the Fourteenth

Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84

L. Ed. 1213 (1940). The Establishment Clause applies not only to state statutes,

but acts and decisions of individual governmental actors, such as teachers and

school administrators. Lee v. Weisman, 505 U.S. 577, 587, 112 S. Ct. 2649, 2655,

120 L. Ed. 2d 467 (1992).

In Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745

(1971), the Supreme Court set forth its famous three-prong test for assessing the

11
We also note that, even putting aside questions of qualified immunity, the district
court’s legal conclusion—that Holloman’s rights under the Establishment Clause had not been
violated—would have required that the court dismiss his § 1983 claims under the Establishment
Clause for failure to state a claim. Given that the issue has been thoroughly briefed and argued
by both sides before us, we need not wait for a subsequent appeal from this legally inevitable
ruling to consider this matter.

65
permissibility of statutes under the Establishment Clause. “First, the statute must

have a secular legislative purpose; second, its principal or primary effect must be

one that neither advances nor inhibits religion; finally, the statute must not foster

an excessive government entanglement with religion.” Id. at 612-13, 91 S. Ct. at

2111 (internal citations and quotations omitted). Agostini v. Felton, 521 U.S. 203,

233, 117 S. Ct. 1997, 2015, 138 L. Ed. 2d 391 (1997), however, refined this test,

stating, “[T]he factors we use to assess whether an entanglement is ‘excessive’ are

similar to the factors we use to examine ‘effect.’ . . . [I]t is simplest to recognize

why entanglement is significant and treat it . . . as an aspect of the inquiry into a

statute’s effect.” Thus, while the Court has folded its traditional “excessive

entanglement” inquiry into its “primary effect” analysis, the substance of its

Establishment Clause jurisprudence remains fundamentally unaltered. See, e.g.,

Zelman v. Simmons-Harris, 536 U.S. 639, 648-49, 122 S. Ct. 2460, 2465, 153 L.

Ed. 2d 604 (2002). This Section demonstrates that Allred’s practice of soliciting

prayer requests from her students and enforcing a moment of silence runs afoul of

the Lemon-Agostini standard. Subsection (a) looks to the purpose of her acts,

while Subsection (b) examines their primary effect.

1.

66
 A government official violates the Establishment Clause if she lacks a

“secular legislative purpose” for her actions. Comm. for Pub. Educ. & Religious

Liberty v. Regan, 444 U.S. 646, 652, 100 S. Ct. 840, 846, 63 L. Ed. 2d 94 (1980).

Allred attempts to defend her daily moment of silent prayer by arguing that it was

intended to teach students compassion,12 pursuant to the character education plan

mandated by the State Legislature. See supra Section I.C; see also Ala. Code §

16-6B-2.

This explanation does not constitute a valid secular legislative purpose for

Allred’s actions. First, Allred’s most basic intent unquestionably was to offer her

students an opportunity to pray in a public school during the school day, and

effectively encourage them to do so. By collecting prayer requests, and using the

phrases “let us pray” and “amen,” she gave the practice of praying during the

moment of silence her implicit imprimatur.

While she may also have had a higher-order ultimate goal of promoting

compassion, we look not only to the ultimate goal or objective of the behavior, but

also the more immediate, tangible, or lower-order consequences a government

12
Compassion was not the only character trait Allred attempted to instill in her students.
She testified, “If you are talking about cleanliness, we talk about litter. You know, and I have
discussed that with students, being fined if you throw out litter. Cleanliness as far as personal
hygiene, I have actually mentioned that when I had a problem in class. You know, ‘Everybody
don’t forget to, you know, bathe.’”

67
actor intends to bring about. Allred’s mere “testimonial avowal of secular . . .

purpose is not sufficient to avoid conflict with the Establishment Clause.” Karen

B. v. Treen, 653 F.2d 897, 900 (11th Cir. 1981).

This reasoning closely follows that employed by the Supreme Court in

Stone v. Graham, wherein it held that, notwithstanding supposedly secular

justifications offered by the school district, “[t]he pre-eminent purpose for posting

the Ten Commandments on schoolroom walls is plainly religious in nature. The

Ten Commandments are undeniably a sacred text in the Jewish and Christian

faiths, and no legislative recitation of a supposedly secular purpose can blind us to

that fact.” 449 U.S. 39, 41, 101 S. Ct. 192, 194, 66 L. Ed. 2d 199 (1980). Because

prayer is “a primary religious activity in itself,” see Treen, 653 F.2d at 901, a

teacher or administrator’s intent to facilitate or encourage prayer in a public school

is per se an unconstitutional intent to further a religious goal.

Second, even accepting Allred’s testimony that she hoped to use prayer as a

way of teaching compassion, our analysis does not end there. While promoting

compassion may be a valid secular purpose, teaching students that praying is

necessary or helpful to promoting compassion is not.13 As we held in Treen,

13
It is instructive, though by no means necessary to our holding, that Allred also
considered readings from the Bible to be part of her students’ character education.

68
 Even if the avowed objective of the legislature and school board is
not itself strictly religious, it is sought to be achieved through the
observance of an intrinsically religious practice. The unmistakable
message of the Supreme Court's teachings is that the state cannot
employ a religious means to serve otherwise legitimate secular
interests.

Id. at 901.

The Supreme Court was faced with similar facts in School District v.

Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963), wherein it

refused to conclude that daily readings from the Bible in public schools had a

valid secular purpose. The State argued that the purposes of the statute requiring

the Bible readings were “the promotion of moral values, the contradiction to the

materialistic trends of our times, the perpetuation of our institutions and the

teaching of literature.” Id. at 223, 83 S. Ct. at 1572. The Court struck down the

statute, asserting that “even if its purpose is not strictly religious, [its purpose] is

sought to be accomplished through readings, without comment, from the Bible.

Surely the place of the Bible as an instrument of religion cannot be gainsaid . . . .”

Id. at 224, 83 S. Ct. at 1572. Elsewhere, this court has emphasized, “Recognizing

that prayer is the quintessential religious practice implies that no secular purpose

can be satisfied. . . .” Jaffree v. Wallace, 705 F.2d 1526, 1534-35 (11th Cir. 1983)

69
[Jaffree I], aff’d sub nom. Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 86 L.

Ed. 2d 29 (1985) [Jaffree II].

Under these precedents, a person attempting to further an ostensibly secular

purpose through avowedly religious means is considered to have a constitutionally

impermissible purpose. See Jager v. Douglas Cty. Sch. Dist., 862 F.2d 824, 830

(11th Cir. 1989) (“[A]n intrinsically religious practice cannot meet the secular

purpose prong of the Lemon test . . . .”). The point of Allred’s daily “ritual” was

to show that praying is a compassionate act; such an endorsement of an

intrinsically religious activity is inconsistent with the Establishment Clause. For

these reasons, we find that Allred violated the Establishment Clause because her

acts were motivated, at least in part, by a desire to inculcate “religiosity.”

2.

Allred’s behavior also fails the “effects” prong of the Lemon-Agostini test

because the effect of her behavior was clearly to promote praying, a religious

activity. Praying is perhaps the “quintessential religious practice,” see Treen, 653

F.2d at 901, and to explicitly call for prayer requests, invoke a moment of silence

for prayer with the phrase “let us pray,” actually hold such a moment of silence,

70
and sometimes conclude with “Amen” has the effect of both endorsing religious

activity, as well as encouraging or facilitating its practice.

This behavior is clearly the type of “invocation of God’s blessings” of

which the Supreme Court disapproved in Engel v. Vitale, 370 U.S. 421, 422, 82 S.

Ct. 1261, 1262, 8 L. Ed. 2d 601 (1962). Allred’s use of the concept of silent

prayer could quite reasonably appear to be an “endorsement [of religion that] is

not consistent with the established principle that the government must pursue a

course of complete neutrality toward religion.” Jaffree II, 472 U.S. at 60, 105 S.

Ct. at 2491 (holding that a statute allowing public school teachers to expressly

dedicate a moment of silence to prayer violates the Establishment Clause); see also

Schempp, 374 U.S. at 225, 83 S. Ct. at 1573 (“[T]he Government [must] maintain

strict neutrality, neither aiding nor opposing religion.”). While Allred did not

promote any particular prayer, or even compel prayer in general, her policy

undeniably “encourage[d] recitation of . . . prayer.” Engle, 370 U.S. at 424, 82 S.

Ct. at 1263. Consequently, we conclude that Allred’s acts violated the

Establishment Clause.

Allred argues that her behavior does not have the effect of furthering

religion because her students frequently asked her to hold the moments of silence.

We held in Chandler v. Siegelman, “So long as the prayer is genuinely student-

71
initiated, and not the product of any school policy which actively or surreptitiously

encourages it, the speech is private and it is protected.” 230 F.3d 1313, 1317

(11th Cir. 2000) (Chandler II). Allred takes an exceedingly broad view of the

phrase “student-initiated,” interpreting it to be woefully inconsistent with the rest

of our opinion in that case.

Under Chandler II, read as a whole, a prayer is not “student-initiated,” and

hence constitutional, simply because the initial idea for the prayer was a student’s.

For example, the fact that a student may come up with the idea of having the

Lord’s Prayer recited over his school’s loudspeakers each day does not mean the

prayer is “student initiated,” and so constitutional, under Chandler II. Indeed, in

the Supreme Court’s Santa Fe ruling (which Chandler II applied), the student body

had conducted an election and affirmatively voted to have prayers recited at

football games, but the Court nevertheless invalidated the practice. School

personnel may not facilitate prayer simply because a student requests or leads it.

The true test of constitutionality is whether the school encouraged,

facilitated, or in any way conducted the prayer. Chandler II used the phrase

“student-initiated” to mean “independently student organized and conducted,” as

opposed to “school sponsored” or “school conducted.” In fact, in the actual

holding of the case, we upheld a portion of an injunction enjoining the school

72
district from “‘aiding, abetting, commanding, counseling, inducing, ordering, or

procuring’ school organized or officially sanctioned religious activity.” Id. at

1317. While purely private prayer by students is constitutionally protected, prayer

that is led, encouraged, or facilitated by school personnel is constitutionally

prohibited. “[E]ven genuinely student-initiated speech may constitute state action

if the State participates in or supervises the speech. . . . [S]tudent religious speech

must be without oversight, without supervision, subject only to the same

reasonable time, place, and manner restrictions as all other student speech in

school.” Chandler v. James [Chandler I], 180 F.3d 1254, 1264-65 (11th Cir.

1999). In this case, the prayer requests and moments of silence for prayer cannot

be considered purely student speech because they were coordinated and conducted

by a teacher (in a classroom during school hours, no less).

That students were not actually forced to pray during the moment of silence,

and may have been free to leave the room, does not alleviate the constitutional

infirmities of Allred’s moment of silence. The Engel Court declared, “[T]he fact

that the program . . . does not require all pupils to recite the prayer but permits

those who wish to do so to remain silent or be excused from the room, ignores the

essential nature of the program’s constitutional defects.” 370 U.S. at 430, 82 S.

Ct. at 1266. The Court further explained, “The Establishment Clause, unlike the

73
Free Exercise Clause, does not depend upon any showing of direct governmental

compulsion and is violated by the enactment of laws which establish an official

religion whether those laws operate directly to coerce nonobserving individuals or

not.” Id., 82 S. Ct. at 1267. The Schempp Court later reaffirmed that the

unconstitutionality of school-sponsored prayer is not “mitigated by the fact that

individual students may absent themselves upon parental request, for that fact

furnishes no defense to a claim of unconstitutionality under the Establishment

Clause.” Schempp, 374 U.S. at 223, 83 S. Ct. at 1572.

The “nondenominational” nature of the moment of silence is similarly of no

avail. Weisman, 505 U.S. at 594, 112 S. Ct. at 2659 (stating that the nonsectarian

nature of a school-sponsored prayer “does not lessen the offense or isolation to the

objectors. At best it narrows their number, at worst increases their sense of

isolation and affront.”). “[G]overnment is required to be a neutral among religions

and between religion and nonreligion.” Mitchell v. Helms, 530 U.S. 793, 878, 120

S. Ct. 2530, 2578, 147 L. Ed. 2d 660 (2000) (emphasis added) (quotation and

citation omitted). “It is now firmly established that a law may be one ‘respecting

an establishment of religion’ even though its consequence is not to promote a

‘state religion’ and even though it does not aid one religion more than another but

merely benefits all religions alike.” Comm. for Pub. Educ. v. Nyquist, 413 U.S.

74
756, 771, 93 S. Ct. 2955, 2964-65, 37 L. Ed. 2d 948 (1973). Encouraging or

facilitating any prayer clearly fosters and endorses religion over nonreligion, and

so runs afoul of the First Amendment.

The brevity of Allred’s moment of silent prayer does not alleviate her

constitutional violation, either. It is “no defense to urge that the religious practices

here may be relatively minor encroachments on the First Amendment.” Schempp,

374 U.S. at 225, 83 S. Ct. at 1573. Our own precedents clearly state that “[t]he

Establishment Clause does not focus on the amount of time an activity takes, but

rather examines the religious character of the activity.” Jager, 862 F.2d at 832.

It is instructive to compare the case before us with another moment-of-

silence case in which we found that the Establishment Clause was not violated. In

Bown v. Gwinett County School District, 112 F.3d 1464 (11th Cir. 1997), we held

that a Georgia statute requiring public school teachers to observe a moment of

silence each day in their classrooms did not violate the Lemon test. The statute

had a secular purpose because it expressly declared that the “moment of quiet

reflection . . . is not intended to be and shall not be conducted as a religious

service or exercise but shall be conducted as an opportunity for a moment of silent

reflection on the anticipated activities of the day.” Id. at 1469 (quoting O.C.G.A.

§ 20-2-1050(b)). Moreover, the statute’s sponsor stated that he “viewed the Act

75
not as providing for school prayer, but rather as providing for a moment for

students to collect their thoughts, focus on the upcoming day, and begin to

develop self-respect and discipline.” Id. at 1471.

Because the statute, as actually implemented, did not have the effect of

promoting or inhibiting religion, it also satisfied the second prong of the Lemon

test. The announcement made over the school loudspeaker that commenced the

moment of silence each day “indicated only that there would be a moment of

silence to reflect on the day’s activities. . . . [and] in no way suggested that

students should or should not pray silently during the moment of quiet

reflection . . . .” Id. at 1472. Moreover, “[t]he Administrative Bulletin circulated

to all school principals instructed that teachers should not suggest that students use

the moment of quiet reflection for prayer,” and we found no indication “that any

teacher encouraged prayer in violation of the guidelines stated in the

Administrative Bulletin.” Id.

The instant case is easily distinguishable from Bown in that Allred, far from

taking steps to ensure that her moment of silence was not regarded as a religious

activity, affirmatively and repeatedly labeled it as such. Her characterization of

the moment of silence is important; in Adler v. Duval Cty. Sch. Bd., 250 F.3d

1330, 1342 (11th Cir. 2001), we upheld a school’s policy of having student

76
graduation speakers in part because of “the complete absence . . . of code words

such as ‘invocation’ unequivocally connoting religion.” The district court in this

case was willing to overlook the fact that Allred would frequently “‘slip[] up’ by

using the word ‘pray’ instead of the words ‘moment of silence,’ . . . and by

indicating the end of the moment of silence by voicing the word ‘amen’, a poor

substitute, perhaps, for the words ‘let’s get to work.’” (Mem. Op. June 4, 2001, at

6). Such labels, however, are quite important in determining not only the purpose

behind the actions at issue (discussed in the prior Subsection), but also their

nature, likely effects, and the degree to which they are likely to be perceived as

state endorsement, facilitation, or promotion of religion.

For these reasons, we have no trouble in concluding that these facts amount

to blatant and repeated violations of the Establishment Clause.

B.

Having established that Allred infringed Holloman’s rights under the

Establishment Clause, we now must assess whether these rights were “clearly

established” at the time of her actions. The district court held, without

explanation, that “[n]o jury could reasonably conclude that ‘every like-situated,

reasonable’ teacher or principal would necessarily know . . . that using the word

77
‘prayer’ as a euphemism for ‘moment of silence,’ violated freedom of religion or

freedom from religion.” (Mem. Op., June 4, 2001, at 10). We are again forced to

disagree.

By now it should go without saying that it is unconstitutional for a teacher

or administrator (or someone acting at their behest) to lead students aloud in

voluntary prayer. See Engel, 370 U.S. at 422, 82 S. Ct. at 1262 (prohibiting

recitation of nondenominational prayer); Schempp, 374 U.S. at 216, 83 S. Ct. at

1568 (invalidating school board practice of reciting the Lord’s Prayer over the

school loudspeakers each day).

In Jaffree II, another case from Alabama involving unconstitutional

Establishment Clause practices, the Supreme Court went a step further and

condemned the use of a moment of silence when one of the purposes for which it

was expressly instituted was prayer. 472 U.S. 38, 105 S. Ct. 2479. The Alabama

state legislature had enacted a statute, Ala. Code § 16-1-20, requiring that public

school teachers in the first through sixth grades establish a daily moment of

silence “for meditation.” Id. at 40, 105 S. Ct. at 2481. Three years later, it enacted

§ 16-1-20.1, which permitted (though not required) all public school teachers to

hold a moment of silence “for meditation or voluntary prayer.” The parties agreed

that the original statute, providing only for a moment of silence for meditation,

78
was constitutionally permissible. The Court held that the later enactment, which

expressly specified “voluntary prayer” as an additional purpose for, or permissible

activity to perform during, the moment of silence, was unconstitutional. It found

that the enactment of § 16-1-20.1 “was not motivated by any clearly secular

purpose–indeed, the statute had no secular purpose.” Id. at 56, 105 S. Ct. at 2489-

90. It further noted that, notwithstanding the general permissibility of a moment

of silence, expressly designating it as an opportunity for prayer “convey[s] a

message of state endorsement and promotion of prayer.” Id. at 59, 105 S. Ct. at

2491. The Court concluded, “Such an endorsement is not consistent with the

established principle that the government must pursue a course of complete

neutrality toward religion.” Id. at 60, 105 S. Ct. at 2491.

We see no way of distinguishing Jaffree II from the instant case. If a law

that allowed teachers to institute a moment of silence expressly for prayer is

unconstitutional, then it surely also unconstitutional for a teacher to actually

institute a moment of silence expressly for prayer. The law cannot get much more

“clearly established” than that.

79
 Having concluded that Holloman successfully alleged a violation of the

Establishment Clause, we now turn to the viability of both his Speech and

Establishment Clause claims against the School Board.

V.

The School Board may not be held liable for the unconstitutional acts of its

employees under a respondeat superior theory. In cases such as Monell v.

Department of Social Services, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56

L. Ed. 2d 611 (1978), the Supreme Court articulated the circumstances in which

“local governing bodies” are subject to § 1983 liability. This Part examines each

of the ways in which Holloman contends that the School Board may be sued.

A.

Monell states that “when execution of a government’s policy . . . inflicts the

injury . . . [then] the government as an entity is responsible under § 1983.” Id. at

694, 98 S. Ct. at 2037-38. To hold the School Board liable for Holloman’s Speech

Clause claim under this theory, we must locate some affirmative official policy

that a reasonable jury could understand as calling upon teachers to compel

students to salute the flag. Ala. Code § 16-43-5 provides, “The State Board of

Education shall afford all students attending public kindergarten, primary and

80
secondary schools the opportunity each school day to voluntarily recite the pledge

of allegiance to the United States flag.” (emphasis added). State law clearly does

not allow students to be forced to salute the flag. The Superintendent of the

Walker County Public School System issued a memorandum on the Board of

Education’s letterhead, stating, “[E]ach school system must incorporate a

Character Education Plan which will consist of ten minutes of instruction per day

in various areas, such as, the Pledge of Allegiance . . . . Each day must include the

Pledge of Allegiance, and then other areas mentioned as you determine at your

school.” This official policy directive lacks the language of voluntariness found in

the statute. It also mandates that each day include the pledge, rather than include

the opportunity to recite the pledge. A reasonable jury could conclude that this

memorandum required teachers to ensure that their students actually recited the

pledge.14 Consequently, the Board may be held liabel for Holloman’s compelled-

speech First Amendment claim

To hold the Board liable under the Establishment Clause claim for Allred’s

daily moment of silent prayer under an “official policy” theory, we must find a

14
In his deposition, Harland briefly discussed the memo. He testified, “We [have] a
memo from when Mr. Larry Banks was the superintendent. I think the Pledge of Allegiance was
spelled out as being one of the things that took place in the morning. . . . [The] Pledge of
Allegiance was part of the character education, and the teachers did various things in there to
teach character and promote good citizenship, but the pledge was part of it.”

81
policy mandating, authorizing, or permitting teachers to take prayer requests or

hold moments of silence for prayer. The only testimony in the record concerning

whether or not these prayers were conducted pursuant to School Board policy

came from Allred. She testified during her deposition that her practice of asking

for prayer requests was “actually included in compassion in the character

education plan. For me to refuse students to express compassion for someone else

would be contrary to our character education plan that we implement through our

curriculum.” Based on the uncontroverted testimony from the teacher charged

with implementing School Board policies (including the character education plan

the Board required schools in the district to implement) that her unconstitutional

acts were required by a Board policy, we cannot help but conclude that Holloman

has introduced sufficient evidence to show that the Board can be held liable

because Allred was acting pursuant to a Board policy.

In further support of this theory, we also note that each high school’s

character education plan had to be approved by the School District before being

forwarded onto the State Department of Education. For reasons that are unclear to

us, it appears that neither party actually entered Parrish High School’s character

education plan into the record. Consequently, we can only attempt to determine

what inferences a reasonable jury could make. We know that the plan had to be

82
approved by the School Board, and that Allred claims that her daily prayer ritual

was part of it. It is also noteworthy that Vice Principal Adkins was aware of

Allred’s practice, having experienced it firsthand during his visit to her classroom;

based on his lack of surprise or disapproval, a jury could infer that Adkins knew

that prayer was part of Allred’s contribution to the character development plan.

Interpreting these facts in the light most favorable to Holloman, a reasonable jury

could draw the inference that prayer was included in the written plan approved by

the School Board, forming another, more direct way in which the Board may be

held liable as having promulgated an unconstitutional policy.15

B.

A municipal governing body may be held liable for acts or policies of

individuals to whom it delegated final decisionmaking authority in a particular

area. Matthews v. Columbia Cty., 294 F.3d 1294, 1297 (11th Cir. 2002) (“Local

government liability can exist when someone with final policymaking authority

delegates that authority to someone else. But, the delegation must be such that the

15
Earlier, we held that (based on the facts before us interpreted in the light most favorable
to the plaintiff) Allred had failed to establish as a matter of law that she was engaged in a
discretionary function of her job when she held her daily moment of silent prayer. If a jury were
to make this determination based on the evidence at trial, it would be impossible for the jury to
likewise conclude that she was acting pursuant to an official board policy. Even under those
circumstances, however, the Board could still be held liable under any of the other theories
discussed in this Part.

83
decision is not subject to review by the policymaking authority.”); Gattis v. Brice,

136 F.3d 724, 725 (11th Cir. 1998) (“If a county official holds final policymaking

authority for the county in the subject area of the alleged constitutional violation,

that official’s decisions may constitute county policy.”). A member or employee

of a governing body is a final policy maker only if his decisions have legal effect

without further action by the governing body, see Matthews, 294 F.3d at 1297

(“[E]ven if [member of governing entity] was given the power to select which

positions would be eliminated . . . his selections still had to be accepted by a

majority of the board. As such, [that member] never possessed final policymaking

power himself . . . .”), and if the governing body lacks the power to reverse the

member or employee’s decision, see Quinn v. Monroe Cty., 330 F.3d 1320, 1326

(11th Cir. 2003) (“Because the [governmental entity] has the power to reverse any

termination decision made by [individual government official], he is not a final

policymaker with regard to termination decisions at the library.”). To determine if

someone is a final policy maker, we look not only to “state and local positive law,”

but also “custom and usage having the force of law.” McMillian v. Johnson, 88

F.3d 1573, 1577 (11th Cir. 1996); see also Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701, 109 S. Ct. 2702, 2723, 105 L. Ed. 2d 598 (1989) (holding that an

individual can be a “final policymaker” either by operation of “state and local

84
positive law” or by “custom or usage having the force of law”). We review de

novo a district court’s ruling about whether an individual is a final policy maker.

Scala v. City of Winter Park, 116 F.3d 1396, 1401 (11th Cir. 1997).

In Denno v. School Bd., 218 F.3d 1267, 1277 (11th Cir. 2000), we held that

the existence of a three-step process allowing parents to appeal a principal’s

decision to an area assistant superintendent and ultimately to the School Board

was sufficient to strip the principal of final policymaking authority. While the

principal’s decisions clearly had immediate legal effect, the fact that at least two

other entities could reverse those decisions was inconsistent with the notion that

the principal was a final decision maker.

The School Board would have us rest this case on Denno because the

Parrish High School student handbook specifies that students have “the right and

the responsibility to express school-related concerns and grievances to the teachers

and school administrator(s). . . . [I]n the event that the grievance cannot be settled

by this procedure, then the student . . . may pursue the grievance to the

Superintendent of Schools and then to the Board.” In Denno, however, the student

was suspended, and we found that, under the circumstances, the policies outlined

in the student handbook “allowed for meaningful review of Denno’s suspension.”

Denno, 218 F.3d at 1277.

85
 Our ruling in Denno was based on a theme reiterated through much of our

caselaw—in assessing whether a governmental decision maker is a final policy

maker, we look to whether there is an actual “opportunity” for “meaningful”

review. See Oladeinde v. City of Birmingham, 230 F.3d 1275, 1295 (11th Cir.

2000) (emphasizing that there must be an actual “opportunity” for “meaningful

administrative review” before we conclude that a governmental decision maker

lacks final policymaking authority); Scala, 116 F.3d at 1401 (“Final policymaking

authority over a particular subject area does not vest in an official whose decisions

in the area are subject to meaningful administrative review.”) (emphasis added);

see also Grech v. Clayton Cty., 335 F.3d 1326, 1351 (11th Cir. 2003) (Barkett, J.,

concurring) (“An official must have discretion in a particular area of law in order

to exercise final policymaking authority in that area and may not be subject to

significant review.”) (emphasis added); Bowen v. Watkins, 669 F.2d 979 (5th Cir.

1982) (“If a higher official has the power to overrule a decision but as a practical

matter never does so, the decision maker may represent the effective final

authority on the question.”).

In the instant case, there was no opportunity for meaningful review by the

School Board. While the student handbook set out an formal multi-step appellate

process that was theoretically available on paper, Holloman could not, as a

86
practical matter, take advantage of it. Graduation was barely a few days away, and

Harland did not offer to “stay” Holloman’s punishment while he sought Board

review. Indeed, the record is silent as to whether there would even be an

intervening meeting of the Board or other opportunity to invoke its oversight.

Even if the School Board were to engage in an ex post review of the punishment,

the fact remains that the paddling could not be undone. Due to the impending end

of the school year, the punishment—unlike the suspension in Denno—could not

be postponed to potentially allow for Board review; Harland had made it clear that

if Holloman did not submit to punishment, he would not receive his diploma on

graduation day. Cf. Weisman, 505 U.S. at 595, 112 S. Ct. at 2659 (“Everyone

knows that in our society and in our culture high school graduation is one of life’s

most significant occasions.”).

Needless to say, our holding that Harland acted as a final decision maker in

this context does not mean that he always acts as such. As we noted in McMillian,

“[a]n official or entity may be a final policymaker with respect to some actions but

not others.” 88 F.3d at 1578. On other occasions, where there is a meaningful

opportunity for substantive Board review, or where a punishment is not a fait

accompli or otherwise irreversible, the “appellate” procedures outlined in the

87
student handbook may be pursued, and Harland would act as merely the

initial—rather than final—policy maker.

We could also interpret the “Corporal Punishment” section of the student

handbook as a delegation to Harland of final decisionmaking authority regarding

the administration of corporal punishment. It reads:

In order to establish and maintain an educational climate conducive to
learning, the Board permits reasonable corporal punishment of
students in the schools of the School District. If such punishment is
required, it shall be administered with care, tact, and caution by the
principal or his/her designee in accordance with Board policies.

Vice Principal Adkins testified in his deposition that there were no other Board

policies regarding corporal punishment.

A student’s pain and humiliation from this act of physical violence cannot

be undone; Holloman cannot be un-spanked. In the absence of any meaningful

Board oversight mechanism prior to the administration of corporal punishment, we

cannot help but conclude that Harland had been delegated final policymaking

authority in determining when to spank a student. In granting him this power

without integrating itself into the pre-spanking review process, the Board

necessarily bound itself to his decisions. Thus, the School Board’s delegation of

effectively unreviewable corporal punishment authority constitutes a related yet

alternate basis upon which we find that Harland was a final decision maker.

88
Consequently, depending on how the facts ultimately develop at trial, the Board

may be held liable under the First Amendment for either his decision to punish

Holloman for engaging in constitutionally protected expression, or to punish

Holloman for engaging in unprotected expression on impermissible viewpoint-

based grounds.

Regarding the Establishment Clause issue, we find that Allred was not a

final policy maker. The prayers were recited as part of the character education

program, which as discussed earlier was expressly subject to School Board

approval. Consequently, Allred could not have been the final policy maker in this

area, and Holloman’s Establishment Clause claims against the School Board

cannot be supported on this basis.

C.

The Supreme Court has recognized that municipal governing entities may

be held liable for unconstitutional acts of employees that occur pursuant to a

municipal “custom.” See Monell, 436 U.S. at 690-91, 98 S. Ct. at 2036. We are

unable to conclude, based on the incidents involving Holloman and Hutto, that a

“custom” or “practice” of disciplining students for failing to recite the Pledge of

Allegiance (or for engaging in a non-disruptive protest during the pledge) existed

89
in the school district. Consequently, Holloman may not pursue his Speech Clause

claim against the Board under this theory.

In contrast, Allred’s practice of conducting a daily moment for silent

prayer—which she actually referred to as a “ritual”—was sufficiently systematic

to be considered a pattern or custom for which the Board may be held accountable.

Our precedents are clear that, for constitutional violations to be sufficiently

“widespread” for a governmental supervisor to be held liable, they need occur with

frequency, see Brown, 906 F.2d at 671 (holding that violations must be “obvious,

flagrant, rampant, and of continued duration” to hold a supervisor liable); see also

Greason v. Kemp, 891 F.2d 829, 837 (11th Cir. 1990) (noting that the “situation of

municipal liability” is “analogous” to the question of supervisoral liability), and

need not necessarily be committed by several people within a department or

agency. When rights are systematically violated on a near-daily basis, such abuses

are sufficiently egregious to warrant supervisory liability, even if it is a single “bad

apple” engaging in the repeated pattern of unconstitutional behavior. See St.

Louis v. Praprotnik, 485 U.S. 112, 130, 108 S. Ct. 915, 928, 99 L. Ed. 2d 107

(1988) (noting that vicarious liability under § 1983 is appropriate“if a series of

decisions by a subordinate official [singular] manifested a ‘custom or usage’ of

which the supervisor must have been aware”) (emphasis added). Consequently,

90
based on the systematic frequency of these violations, a jury could conclude that

the Board knew of the practice yet nevertheless permitted it to fester unabated.

VI.

Allred is not entitled to summary judgment on qualified immunity grounds

against Holloman’s Speech Clause claim to be free from compelled speech, his

Speech Clause claim to affirmative freedom of expression, his Speech Clause

claim to be free of viewpoint discrimination, or his Establishment Clause claim.

Harland is not entitled to summary judgment on qualified immunity grounds

against Holloman’s Speech Clause claim to be free from compelled speech, his

Speech Clause claim to affirmative freedom of expression, or his Speech Clause

claim to be free from viewpoint discrimination. We do not consider the question

of Harland’s entitlement to summary judgment against Holloman’s Establishment

Clause claim because Holloman abandoned this issue on appeal.

Holloman has successfully articulated claims against the School Board for

violations of his Speech Clause right to be free from compelled speech (under an

“official policy” theory), his Speech Clause right to engage in affirmative

expression (under a “delegation to a final policymaker” theory), his Speech Clause

claim to be free from viewpoint discrimination (also under a “delegation to a final

91
policymaker” theory), and his Establishment Clause rights (under either an

“official policy” or a “custom” theory). We reverse the district court’s grant of

summary judgment, and reinstate Holloman’s claims against the Board.

REVERSED AND REMANDED.

92
WILSON, Circuit Judge, concurring in part and dissenting in part:

I join Parts I, II-A, and II-B of the majority’s opinion, which hold that there

is an issue of material fact as to whether Holloman was punished for failing to say

the Pledge of Allegiance (“the Pledge”), which if true, would violate Holloman’s

clearly established constitutional right not to say the Pledge. However, I

respectfully dissent from Part II-C. In Part II-C, the majority holds that even if

Holloman was in fact punished for raising his fist in the air during the recitation of

the Pledge rather than for merely failing to say the Pledge, then there is an issue of

material fact as to whether his First Amendment right was violated. In addition,

the majority holds that such a First Amendment right is clearly established in our

case law. I disagree. I contend, rather, that Holloman does not have a First

Amendment right to raise his clenched fist in the air during the school’s recitation

of the Pledge any more than he would have a First Amendment right to raise his

fist in the air during math class. Such an act is inherently disruptive, and a teacher

has every right to prevent such conduct in his or her classroom in order to prevent

any potential disruption.1 I also believe that even if Holloman had a First

Amendment right to raise his fist in the air during the recitation of the Pledge,

such a right certainly was not clearly established in our case law.

1
We are not called upon to decide the propriety of the type of punishment inflicted here.

93
 I agree with the majority’s conclusion, though, with respect to Part II-D of

its opinion. While Holloman’s expression was not constitutionally protected in

the classroom because it is inherently disruptive, he still has a clearly established

First Amendment right to not be discriminated against on the basis of the

viewpoint he is communicating. See Cornelius v. NAACP Legal Defense and

Educ. Fund, Inc., 473 U.S. 788, 812 (“While we accept the validity and

reasonableness of the justifications offered by petitioner for excluding [the

relevant speech], those justifications cannot save an exclusion that is in fact based

on the desire to suppress a particular point of view.”). There is a genuine issue of

material fact as to whether Allred and Harland were motivated by a desire to

suppress Holloman’s apparent unpatriotic viewpoint, which if true, would violate

Holloman’s First Amendment right. Thus, I concur with the majority’s conclusion

with respect to Part II-D of its opinion.

In addition, I join Part IV of the majority’s opinion, which holds that there is

an issue of material fact as to whether Allred violated clearly established rights

under the Establishment Clause by leading her class in a prayerful moment of

silence. However, while I concur in the result of Part III (for the reasons stated in

Part IV of the majority’s opinion), I cannot join the majority’s holding that Allred

did not act within her “discretionary function” when she led the class in a moment

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of silent prayer. I would hold, rather, that Allred acted within her discretionary

function when leading her class in silent prayer, but that she violated the

Establishment Clause by so doing.

Finally, I also join Part V of the majority’s opinion only to the extent that it

holds that there is an issue of material fact as to whether the School Board may be

liable for punishing Holloman for remaining silent during the Pledge (if the

factfinder finds that is the reason for his punishment) and for Allred’s practice of

leading the class in a prayerful moment of silence.

I.

The majority not only holds that the evidence, reviewed in Holloman’s

favor, demonstrates that Holloman had a First Amendment right to raise his

clenched fist in the air during the recitation of the Pledge in school, but also that

such a right was clearly established. Because the majority’s holding in this regard

is neither consistent with Supreme Court precedent nor Eleventh Circuit case law,

I respectfully dissent. I would hold that the First Amendment does not give a

student in Holloman’s circumstances the right to actively partake in conduct that is

inherently disruptive during the curriculum portion of the school day. Yet, even if

the First Amendment does grant such a right, that right certainly was not clearly

established for qualified immunity purposes.

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 A.

I agree with the majority that Holloman’s act of raising his fist in the air

during the Pledge is a form of expression, or indeed, may very well be “pure

speech.” It is an act that is, as the majority puts it, “purely communicative as a

sign-language gesture or the act of holding up a sign . . . .” Majority Opinion at

30. I agree that Holloman’s First Amendment right to Free Speech is implicated,

but we must be mindful that “the constitutional rights of students in public school

are not automatically coextensive with the rights of adults in other settings.”

Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986). “It is always within the

province of school authorities to provide by regulation the prohibition and

punishment of acts calculated to undermine the school routine.” Blackwell v.

Issaquena County Bd. of Educ., 363 F.2d 749, 753 (5th Cir. 1966).2 When

balancing the First Amendment right of students at school, we must not forget that

the state’s interest to maintain “an orderly program of classroom learning” is a

“compelling” one. Burnside v. Byars, 363 F.2d 744, 748 (5th Cir. 1966). Thus,

public schools have a “wide latitude of discretion” to formulate regulations

“pertaining to the discipline of school children.” Id.

2
In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

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 Public schools are allowed “to adopt and enforce reasonable, non-

discriminatory regulations as to the time, place and manner of student expressions

and demonstrations.” Bayless v. Martine, 430 F.2d 873, 878 (5th Cir. 1970).

Such a regulation may infringe upon a student’s right to free speech only “where

the exercise of such rights in the school buildings and schoolrooms do[es] not

materially and substantially interfere with the requirements of appropriate

discipline in the operation of the school.” Burnside, 363 F.2d at 749. Keeping in

mind that schools are given a “wide latitude of discretion,” the critical issue in this

case becomes whether Holloman’s act of holding his clenched fist in the air during

the recitation of the Pledge “materially and substantially interfere[d] with the

requirements of appropriate discipline . . . .” Id. at 748, 749.

The majority cites several cases supporting its view that Holloman’s act was

not a sufficient interference to justify a punishment. Yet, some of these cases

involve student expression occurring outside the classroom. See, e.g., Shanley v.

Northeast Indep. Sch. Dist., 462 F.2d 960, 964 (5th Cir. 1972) (involving the

distribution of newspapers before and after school hours); Reineke v. Cobb County

Sch. Dist., 484 F. Supp. 1252 (N.D. Ga. 1980) (involving the censorship of a

student newspaper). Certainly, the type and amount of expression occurring

outside class that would “interfere with the requirements of appropriate

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discipline,” Burnside, 363 F.2d at 749, will be different than the type and amount

of expression that interferes with appropriate discipline in the classroom. The

school has a more compelling interest to establish order and discipline in the

classroom because that is where the curriculum portion of the school day occurs.

In addition, those cases cited by the majority that protect student expression

within the classroom are easily distinguishable from Holloman’s expression. For

instance, the majority relies on Burnside, which held that students wearing

“freedom buttons” to class did not cause a sufficient interruption to justify

prohibiting students from wearing the buttons at school. Id. We based our

holding in Burnside on the lack of evidence demonstrating that “the buttons

tended to distract the minds of the students away from their teachers.” Id. at 748

(emphasis added). We held that “[w]earing buttons on collars or shirt fronts is

certainly not in the class of those activities which inherently distract students and

break down the regimentation of the classroom such as carrying banners,

scattering leaflets, and speech making, all of which are protected methods of

expressions, but all of which have no place in an orderly classroom.” Id.

(emphasis added). In addition, we said,

Regulations which are essential in maintaining order and discipline
on school property are reasonable. Thus school rules which assign
students to a particular class, forbid unnecessary discussion in the

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 classroom and prohibit the exchange of conversation between
students are reasonable even though these regulations infringe on
such basic rights as freedom of speech and association, because they
are necessary for the orderly presentation of classroom activities.

Id. Our inquiry should focus upon, therefore, whether a student holding his fist in

the air during a curriculum portion of the school day is more akin to a student

“carrying banners” and “exchang[ing] conversation” during class, rather than

wearing a button on the front of one’s shirt. Id.

Activity that can be regulated by a public school, like “unnecessary

discussion in the classroom,” “the exchange of conversation between students,”

“carrying banners,” “scattering leaflets,” and “speech making,” all have in

common the fact that they inherently compete with the teacher for the other

students’ attention. Wearing a button on the front of one’s shirt, though, does not

compete with the teacher for the students’ attention anymore than a student

wearing a shirt advertising a particular sports team. Thus, we must determine

whether a student raising his fist in the air during class inherently is the sort of

activity that competes with the teacher for the students’ attention, or whether it is a

more passive expression like a wearing a shirt or a button conveying a particular

message.

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 I think it is quite clear that a student raising his clenched fist in the air

during a curriculum portion of the school day is the sort of activity that inherently

competes with the teacher for the other students’ attention and thus can be

prohibited by the school authorities. Holloman’s act of holding his fist in the air

during the recitation of the Pledge is, as the majority says, akin to “the act of

holding up a sign.” Majority Opinion at 30. Such expression, unlike a button

pinned to one’s shirt, is meant to compete for students’ attention, and thus

inherently distracts students from a legitimate portion of the curriculum. Holding

one’s fist in the air is more like “carrying banners” which “inherently distract[s]

students,” Burnside, 363 F.2d at 748, than wearing a button on a shirt. Would a

student have a right to hold up a sign during the recitation of the Pledge, as long as

the student does not obstruct others’ view of the flag? The answer to that question

is plainly “no.” Holding one’s fist in the air is the same sort of communication as

holding up a sign, as the majority even admits. It is meant to compete for

students’ attention and unnecessarily distract students from the recitation of the

Pledge. It is not a passive expression, like wearing a button on the front of one’s

shirt. Like holding up a sign, it inherently is the sort of activity that distracts

students during class. While a student may have more freedom to express himself

outside of class, students in the classroom are limited to passive expressions that

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do not inherently distract students. A public school teacher is well within his or

her authority to prohibit activity, like a student holding his fist in the air during

class, that inherently distracts students.

Even if we were to assume, though, that a student holding his fist in the air

during class is not activity that inherently distracts students, there is evidence on

the record that Holloman in fact distracted students with his gesture, which would

further distinguish the instant action from Burnside. After Holloman’s act of

raising his fist during the Pledge, students approached their teacher to complain

that Holloman’s expression was not “right.” The majority reasons that this fact

alone is not sufficient to show a material disruption. While the majority is correct

that schools cannot prohibit expression on the basis that others may disagree with

the content of the expression, the students’ comments not only demonstrate

disagreement with the content of Holloman’s expression, but also that Holloman’s

gesture “distract[ed] the[ir] minds” during a curriculum portion of the school day.

Id. The students’ comments demonstrate that they at least focused their attention

during a portion of the recitation of the Pledge on Holloman’s fist – which

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precisely is what is intended by such expression – rather than on the planned

curriculum of saying the Pledge.3

If we do not interpret the students’ comments as evidence of distraction, we

necessitate absurd results in similar student expressions in the future. The

majority’s holding would imply, for example, that a student would be justified in

holding up his fist in protest of the Vietnam conflict during a history lesson about

Vietnam. Assume that the only evidence of disruption, like in the instant action, is

that of students complaining that such a gesture during a class about the Vietnam

conflict is not “right.” Does such a circumstance necessarily indicate that the

teacher does not have enough evidence of a disturbance to prohibit the student

3
The majority claims that this approach “appears to ignore the principle . . . that student
expression must cause (or be likely to cause) a ‘material and substantial’ disruption . . . before it
may be curtailed.” Majority Opinion at 34. I do not ignore this principle, but rather disagree
with the majority by what we meant in Burnside when we said that public schools can only
infringe on a student’s speech when it “materially and substantially interfere[s] with the
requirements of appropriate discipline in the operation of the school.” Burnside, 363 F.2d at 749.
One of the “requirements of appropriate discipline” is preventing students from
competing with the teacher or with the curriculum for other students’ attention. For instance, we
said in Burnside that a school may prohibit “the exchange of conversation between students”
during class. Id. at 748. Thus, a teacher may prohibit and punish a student for whispering to his
classmate during class, even if it causes a “brief, easily overlooked, de minimum impact.”
Majority Opinion at 34. One student whispering to another student during class competes with
the teacher for the attention of other students, and thus “materially and substantially interfere[s]”
with one of the fundamental “requirements of appropriate discipline.” Burnside, 363 F.2d at 749.
Similarly, Holloman’s act of raising his fist in the air during the Pledge competed for the
students’ attention during a legitimate curriculum portion of the school day. Indeed, some of the
students’ reaction after class indicated that he successfully distracted students from the recitation
of the Pledge. Thus, Holloman’s act “substantially and materially interfere[d] with the
requirements of appropriate discipline” because it “tended to distract the minds of the students
away from” the recitation Pledge. Id. at 749, 748.

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from holding his clenched fist in the air during history class? It would be difficult

to conclude otherwise following the reasoning of the majority’s opinion. Such a

conclusion, though, would plainly go well beyond what was intended by the First

Amendment right to Free Speech as it applies to students in the classroom.

A public school is given “wide latitude” in disciplining its students. Id.

The defendants in the instant case had every right to prevent Holloman from

distracting the students during a legitimate, curriculum portion of the school day

because a student holding his fist in the air is the sort of activity that “inherently

distract[s] the minds of students,” and that is exactly what Holloman did here. Id.

In the very least, such activity is distinguishable from a student wearing a button

on his shirt during class. The result in Burnside does not demand the same result

here.

The majority also relies on Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969), which held that students had a constitutional right to wear a

black arm band during class in protest of the Vietnam conflict. Id. at 514. The

Court in Tinker, relying heavily on our reasoning in Burnside, said that wearing an

arm band was not “disruptive action,” nor was there any evidence of “interference,

actual or nascent, with the school’s work.” Id. at 508.

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 The instant case is distinguishable from Tinker for the same reason it is

distinguishable from Burnside. Wearing a button or an arm band is passive

activity that does not inherently distract students during the curriculum portion of

the school day, unlike raising one’s fist in the air. Also, in Tinker there was no

evidence of any interference or distraction during class. In the instant case,

however, we have evidence of students, at the very least, being distracted for a

portion of the Pledge due to Holloman’s gesture. I fail to see how it follows that a

right to wear a button or an arm band during class means that a student has a right

to raise his fist during class. The result in Tinker, like Burnside, is inapposite to

the instant action.

Finally, the district court relies on the reasoning and holding of Banks v. Bd.

of Pub. Instruction, 314 F. Supp. 285 (S.D. Fla. 1970), vacated by 401 U.S. 988

(1971), reinstated without published opinion by dist. ct. and aff’d, 450 F.2d 1103

(5th Cir. 1971). In Banks, the Southern District of Florida held that a student has a

constitutional right to remain seated during the recitation of the Pledge in class.

The district court in Banks, according to the majority’s interpretation, held that

refusing to stand was a form of expression that was protected by the First

Amendment, and that the “district court makes clear that its ruling was not based

on Banks’s First Amendment right to remain silent.” Majority Opinion at 38. The

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majority concludes that the expression of remaining seated during the Pledge is

akin to Holloman’s holding his fist in the air during the Pledge, and thus

Holloman’s expression is entitled to First Amendment protection.

In addition to the fact that a district court holding is not binding authority on

this Court, it is not at all “clear that [the district court’s] ruling was not based on

Banks’s First Amendment right to remain silent.” Majority Opinion at 38. The

court in Banks discussed extensively the reasoning of West Virginia St. Bd. of

Educ. v. Barnette, 319 U.S. 624 (1943), which held that a public school cannot

compel a student to participate in the Pledge. After discussing Barnette, the

district court in Banks said,

Without more Barnette would be dispositive of this matter for [the
plaintiff] was suspended for his refusal to act in accordance with a
regulation, the operation of which prevented him from exercising his
First Amendment rights.

Banks, 314 F. Supp. at 295. The court continued later in the opinion,

Here, as in Barnette, the regulation required the individual to
communicate, by standing, his acceptance of and respect for all that
for which our flag is but a symbol.

Id. at 296. In other words, the district court’s holding was based on the reasoning

of Barnette. The school’s policy of forcing a student to stand during the Pledge

violated the student’s First Amendment right not to be compelled to speak or

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express a particular belief. Any discussion by the district court in addition to this

more limited holding is arguably dictum.

As the majority points out, the court in Banks also said that remaining

seated during the Pledge “was no less a form of expression than the wearing of the

black arm-band was to Mary Beth Tinker. He was exercising a right ‘akin to pure

speech.’” Id. at 295. I agree that a student may intend to express himself by

remaining seated – yet I do not agree that it follows that the Tinker-Burnside

standard applies to a student who merely remains seated during the Pledge.

Remaining seated during the Pledge is a way for a student not to participate in the

Pledge. Thus, such a decision is afforded the more absolute protection of

Barnette, in which the Supreme Court said,

If there is any fixed star in our constitutional constellation, it is that
no official, high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion or force
citizens to confess by word or act their faith therein.

Barnette, 319 U.S. at 642 (emphasis added). Forcing a student to stand during the

Pledge would be compelling that student to “confess by . . . act [his] faith” in the

content of the Pledge and all that it symbolizes. Id. (emphasis added). Such a

regulation would violate the central principle of Barnette. See Lipp v. Morris, 579

F.2d 834, 836 (3rd Cir. 1978) (per curiam) (holding that forcing a student to stand

106
is unconstitutional because it requires a student “to engage in what amounts to

implicit expression by standing at respectful attention while the flag salute is being

administered”).

While it is true that remaining seated during the Pledge may also be

construed as a way of speaking, remaining seated is already in the class of those

activities that are afforded the more absolute protections of Barnette – i.e., the

right not to participate in the Pledge. To hold that the Tinker-Burnside standard

applies to a student who remains seated during the Pledge would limit a student’s

right not to participate in the Pledge. If it can be shown that a student, or a group

of students, who do not participate in the Pledge by remaining seated causes a

material disruption, we would be forced to defer to the school’s decision to compel

students to stand during the Pledge. Such a ruling would allow a public official to

“force citizens to confess by . . . act their faith” in the content of the Pledge and all

it symbolizes. Barnette, 319 U.S. at 642. As a result, the “fixed star in our

constitutional constellation” would become contingent upon the degree of

disruption judges decide is too much in a particular classroom. Limiting the

central right of being free to abstain from participating in the Pledge should not be

limited by applying the Tinker-Burnside standard to a decision more absolutely

protected by Barnette.

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 A student may decide not to participate in the recitation of the Pledge by

remaining silent and seated. In such circumstances, the holding in Barnette

applies. On the other hand, raising one’s fist in the air during the Pledge is not a

way in which a student abstains from participating in the Pledge. It can only be

construed as expression. Thus, Barnette and Banks are not applicable to

Holloman’s act, but rather Tinker and Burnside apply. As I indicated above, I

believe Holloman’s act of raising his fist in the air during class is easily

distinguished from the act of wearing a button or an arm band during class because

raising one’s fist in the air during the curriculum portion of the school day

inherently distracts students, and thus materially disrupts the requirements of

appropriate discipline.

Reciting the Pledge of Allegiance during the school day is a legitimate

activity of the curriculum, just as legitimate as conducting math or history class.

While a student is not required to participate in the Pledge, a student cannot

engage in expressive conduct that inherently distracts the minds of the students

from a legitimate portion of the school day. I would hold that there is no issue of

material fact as to whether the school was justified in punishing Holloman, if that

punishment was based on his act of raising his fist in the air during the recitation

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of the Pledge of Allegiance and was not motivated by a desire to suppress

Holloman’s point of view.

B.

Even if Holloman has a First Amendment right to hold his fist in the air

during the recitation of the Pledge in class, such a right was not “clearly

established.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). In order for a right to be clearly

established, the public official must be given “fair warning” that his or her conduct

violates a statutory or constitutional right. See id. at 741. Recently, the Supreme

Court in Hope held that we improperly used a “rigid gloss” when demanding that

the facts of previous cases be “materially similar” to the facts of the applicable

case in order for the law to be clearly established. Id. at 739. There are other

ways, though, besides comparing the facts of the instant case with the facts of

previous cases, to determine if a public official was given “fair warning” that a

certain act violated a statutory or constitutional provision. There are some cases in

which the law provides “obvious clarity,” even in the absence of instances in

which courts have applied a general principle to particular facts. See Vinyard v.

Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002). The majority holds that

Holloman’s constitutional right to put his fist in the air during the recitation of the

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Pledge is clearly established because the Tinker-Burnside standard was

“sufficiently specific” to give the defendants fair warning. See Majority Opinion

at 50. I respectfully disagree with both the majority’s analysis and conclusion.

There are three ways in which we can find that the law is clearly established

so as to give public officials fair warning that a particular act violates a statutory

or constitutional right. First, the words of a statute or constitutional provision can

be specific enough to clearly establish the law applicable to particular conduct and

circumstances, even in the absence of any case law. Vinyard, 311 F.3d at 1350.

No one alleges that such a case is present here. Second, sometimes “broad

statements of principle in case law [that] are not tied to particularized facts . . . can

clearly establish law applicable in the future to different sets of detailed facts.” Id.

at 1351. The majority believes that such a case is present here, while I do not. I

will address my disagreement below. Finally, and this is true in the vast majority

of our qualified immunity cases, we inquire whether fact-specific precedents are

“fairly distinguishable” from the facts facing a government official. Id. at 1352. I

think this is the proper inquiry in the instant case. Using this inquiry, I would

conclude that the precedent is fairly distinguishable from the circumstances in this

case, and thus the defendants were not given fair warning that disciplining a

student for raising his fist in the air during the Pledge was unconstitutional.

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 The majority considers whether the test, by itself, articulated in Tinker and

Burnside clearly establishes that Holloman’s act was constitutionally protected.

The Tinker-Burnside test is whether the student expression “materially and

substantially interfere[s] with the requirements of appropriate discipline in the

operation of the school.” Burnside, 363 F.2d at 749. The majority claims this test

is “sufficiently specific” to give the defendants fair warning that Holloman’s

expression was constitutionally protected because it is reasonable “to expect the

defendants – who hold themselves out as educators – to be able to apply such a

standard, notwithstanding the lack of a case with material factual similarities.”

Majority Opinion at 50. In addition, the majority says applying this test would be

“effortless,” as “[a] teacher or principal should be able to instantly recognize

whether a student is disrupting class, and it should not be too hard to determine

whether a student’s activities are likely to have such an effect.” Majority Opinion

at 51.

These reasons articulated by the majority are irrelevant to our analysis. The

defendants thought that Holloman’s act was not constitutionally protected – that

is, they believed that his act “materially and substantially interfere[d] with the

requirement of appropriate discipline.” Burnside, 363 F.2d at 749. It simply does

not follow that because it is “not too hard” for teachers to determine when a

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student disrupts class, that it is then obvious to every reasonable teacher that a

certain disruption will survive judicial scrutiny. In other words, teachers cannot

be expected to readily determine what conduct falls within the Court’s definition

of “material and substantial interference with appropriate discipline.” Id.

Reasonable people certainly can disagree about how the Court will apply such a

general standard, especially to the facts of the instant action. See Vinyard, 311

F.3d at 1351 (“[I]f a broad principle in case law is to establish clearly the law

applicable to a specific set of facts facing a governmental official, it must do so

‘with obvious clarity’ to the point that every objectively reasonable government

official facing the circumstances would know that the official’s conduct did

violate federal law when the official acted.).

I do not think that the balancing test we use in our Free Speech cases

established with “obvious clarity” that a student can raise his fist in the air during

the curriculum portion of the school day. We define our broad standard of

“materially and substantially interfer[ing] with the requirements of appropriate

discipline” as including “those activities which inherently distract students” during

class. Burnside, 363 F.2d at 749, 748. A reasonable teacher could conclude that a

student raising his fist in the air during a curriculum portion of the school day is

the sort of activity that “inherently distract[s] students.” Id. at 748. Thus, the

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defendants were not given fair warning by our case law that they were prohibited

from punishing Holloman for his expressive act.

In the alternative, the majority states that Holloman’s right to raise his fist in

the air during the Pledge is clearly established under Barnette. In Barnette, the

Supreme Court held that a public school cannot compel a student to participate in

the Pledge. 319 U.S. at 642. The majority says that it is “very reluctant” to

conclude that Holloman shed his First Amendment protection to remain silent

during the Pledge by simply lifting his fist into the air. Majority Opinion at 52.

“This is a hair we will not split,” according to the majority because, I assume,

“First Amendment protections are not lost that easily.” Majority Opinion at 53.

Yet, this is precisely the “hair” the majority “split” earlier in its own

opinion. For instance, the majority in Part II-B-1 persuasively establishes that

there is an issue of material fact as to whether Holloman was punished for failing

to say the Pledge or for raising his fist in the air. This was a proper distinction to

make, because the answer to that question determines whether Barnette applies or

whether Burnside and Tinker apply. Barnette prohibits a school from compelling

a student to say the Pledge. Burnside and Tinker prohibits a school from

preventing a student from voluntarily engaging in expression, as long as that

expression does not sufficiently interfere with proper discipline in the classroom.

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Holloman’s act of raising his fist in the air, as the majority aptly pointed out, is

what made his act expression, rather than just a failure to participate in the Pledge.

In other words, Holloman’s act of raising his fist is exactly what allows us to apply

Burnside and Tinker. To conclude later, when considering whether Barnette

clearly establishes Holloman’s right to raise his fist, that it is no longer legally

significant that Holloman raised his fist, is inconsistent.

Barnette holds that a student cannot be compelled to speak. Barnette says

nothing about a student’s right to speak. Holloman “spoke” by raising his fist.

Thus, Barnette is not relevant to this inquiry.

For the reasons that I articulated above for why I believe Holloman’s

expression is distinguishable from the expression in Tinker and Burnside, I would

hold that the law was not clearly established that Holloman had a right to raise his

fist in the air during the recitation of the Pledge in class.

II.

I agree with the majority’s conclusion that Allred is not entitled to qualified

immunity for leading the class in a moment of silent prayer. Such action, as aptly

pointed out in Part IV of the majority’s opinion, violates the Establishment Clause.

See Engel v. Vitale, 370 U.S. 421 (1962). Thus, I join Part IV of the majority’s

opinion. However, the majority also held, in Part III, that Allred is not even

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potentially entitled to summary judgment on qualified immunity grounds against

Holloman’s Establishment Clause claim because leading the class in a moment of

prayerful silence is not within her “discretionary function.” I think that such an

interpretation stretches our inquiry of “discretionary function” beyond what is

articulated in our case law. Thus, I would find that (1) Allred’s act of leading her

class in a prayerful moment of silence was within her discretionary authority, but

(2) such an act was unconstitutional under the Supreme Court’s interpretation of

the Establishment Clause.

A government official acts within his discretionary authority when his

actions “were undertaken pursuant to the performance of his duties and within the

scope of his authority.” Sims v. Metro. Dade County, 972 F.2d 1230, 1236 (11th

Cir. 1992) (internal quotations omitted). We must keep in mind that our “inquiry

is not whether it was within the defendant’s authority to commit the allegedly

illegal act. Framed that way, the inquiry is no more than an untenable tautology.”

Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998) (internal

quotation omitted). Thus, just because a defendant’s act may be unconstitutional

does not mean that the act was not within the defendant’s discretionary authority.

In the instant action, the Alabama state legislature enacted a statute

requiring local school boards to “implement . . . a comprehensive character

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education program . . . focusing upon the students’ development of . . .

compassion.” ALA. CODE § 16-6B-2(h). Allred claims she promoted compassion

by asking the students for prayer requests before observing a moment of silence.

While such an act would not pass muster under the Supreme Court’s interpretation

of the Establishment Clause, it is a legitimate way to promote compassion. Asking

students to offer prayers for other people may habituate students to think of others

by praying for them. Thus, I agree with the majority that Allred’s act was pursuant

to her job related goal of promoting compassion.

The majority believes, though, that while Allred’s act of leading her class in

a prayerful moment of silence was pursuant to a job related function, it was not

within the scope of her authority. The majority states that “[p]raying goes

sufficiently beyond the range of activities normally performed by high school

teachers,” because “[p]rayer is a relatively sui generis activity.” Majority Opinion

at 62. Yet, the “sui generis activity” of praying in public schools was “normally

performed” prior to the Supreme Court’s decision in Engel. Indeed, even today,

many teachers in private high schools throughout America, whether they be

religious or secular, lead their students in prayer. Public school teachers no longer

have the authority to lead their classes in prayer by virtue of the fact that the

Supreme Court ruled it unconstitutional. It was certainly within the scope of a

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public high school teacher’s authority to lead students in prayer prior to 1962,

when the Court ruled that teacher led prayer in public schools is a violation of the

Establishment Clause. The fact that a particular act may now be deemed

unconstitutional does not mean that such an act is outside the scope of a public

official’s discretionary authority. See Harbert, 157 F.3d at 1282. There must be

some other reason, besides the fact that a particular activity is unconstitutional, for

that activity not to be within a public authority’s scope of authority. I do not see

an additional reason, besides the unconstitutionality of school prayer, in the

majority’s opinion giving me reason to believe that Allred’s act was not within her

discretionary authority. And neither can I think of one. Thus, I cannot join Part

III of the majority’s opinion. Its application of the “discretionary authority”

requirement to Allred’s act of leading her class in silent prayer is too stringent.

However, I agree that Allred is nonetheless not entitled to qualified immunity for

the reasons the majority states in Part IV of its opinion.

III.

A student raising his fist in the air during a curriculum portion of the school

day engages in an act that inherently distracts student during class. A teacher,

therefore, may prohibit a student from engaging in such activity. Thus, I cannot

join Part II-C of the majority opinion’s in which it holds that there is an issue of

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material fact as to whether Holloman’s First Amendment right to free speech was

violated if he was punished for holding his fist in the air during the recitation of

the Pledge and if that punishment was not motivated by a desire to suppress a

particular viewpoint. I also dissent from the majority’s holding that Holloman’s

right to hold his fist in the air was clearly established for qualified immunity

purposes.

In addition, while I agree with the majority’s conclusion that there is an

issue of material fact as to whether Allred violated Holloman’s clearly established

right under the Establishment Clause when Allred led the class in a moment of

silent prayer, I cannot join Part III of the majority’s opinion. In my view, Allred

acted within her discretionary function when leading her class in prayer.

Finally, I join Part V of the majority’s opinion, but only to the extent that it

holds that the School Board may be held liable if Holloman was punished for

remaining silent during the Pledge and for Allred’s act of leading her students in

silent prayer. Thus, I concur in part and dissent in part with the majority’s

opinion.

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