concurring in part and dissenting in part.
While I concur with much of the majority’s opinion, with all due respect, I write separately to express a limited area of disagreement.
I agree that MCFS’s cross-appeal on the free exercise issue should be granted and the district court’s judgment reversed. Plaintiffs have not demonstrated a substantial burden to their religious activities. I further agree that there are disputed issues of fact on the Title VII and equal protection claims that preclude summary judgment.
I disagree, however, with the majority’s treatment of the free speech issue. While I concur that-the district court erred in granting summary judgment to MCFS on this issue, this court should hold that plaintiffs succeed on their free speech claims as a matter of law. It is uncontested that there was an entire class of “insubordinate” employees at these training sessions. They were engaged in a variety of activities: sleeping, secular reading materials, and paperwork, along with the plaintiffs who quietly read their Bibles. MCFS supervisors, well aware of the class of “insubordinate” employees, punished only those employees who were engaged in religious reading. Thus, I fail to see any factual dispute on the free speech issue: plaintiffs were clearly punished because of the content of their behavior, rather than the behavior itself. This is clearly unconstitutional. See R.A.V. v. St. Paul, 505 U.S. 377, 383-387, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (holding content-based discrimination is forbidden even if the government has the authority to ban the underlying activity); Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech, § 3:10 (2000) (“[a]t the core of R.A.V. there lies the proposition that the First Amendment’s restrictions on content-based and viewpoint-based discrimination apply even when the government regulation involves a type of speech that as a class normally receives no First Amendment protection.”) While I concur that the Title VII and equal protection claims must be remanded because the presence of invidious motive is disputed, such a motive analysis is irrelevant to the free speech claim. See Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (“our cases have consistently held that illicit ... intent is not the sine qua non of a violation of the First Amendment.”) (quotations omitted); Smolla, supra, § 3:5 (“[the Supreme Court does] not requir[e] evidence of an invidious motive to discriminate against or censor certain types of speech.”) (emphasis omitted).
As far as qualified immunity, this court should decide the qualified immunity question as a matter of law.4 Admittedly, where there is a disputed issue of fact between the parties, summary judgment on the question of qualified immunity is inappropriate. See Gainor v. Rogers, 973 F.2d 1379, 1385 (8th Cir.1992); Duncan v. Storie, 869 F.2d 1100 (8th Cir.1989) (holding dispute over where defendant was arrested — inside or outside his home — precluded summary judgment on qualified immunity). But as the majority concedes, the only disputed fact here is defendants’ motive for punishing the plaintiffs. According to the Supreme Court, however, motive is irrelevant to a qualified immuni*1206ty defense. See Harlow v. Fitzgerald, 457 U.S. 800, 817, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Crawford-El v. Britton, 523 U.S. 574, 588, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (“[under existing precedent] a defense of qualified immunity may not be rebutted by evidence that the defendant’s conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant’s subjective intent is simply irrelevant to that defense.”). As the Court said in Harlow, such a subjective analysis defeats the purposes behind qualified immunity, since “[jjudicial inquiry into subjective motivation therefore may entail broad-ranging discovery .... inquires of this kind can be peculiarly disruptive of effective government.” Harlow, 457 U.S. at 817, 102 S.Ct. 2727. Since there is no issue of disputed fact (other than the defendants’ motive, which is irrelevant to the qualified immunity analysis), we should directly address the qualified immunity question as a matter of law.
Therefore, we should grant the MCFS’s cross-appeal on the free exercise claim and reverse the district court’s judgment. I further agree that we should reverse the district court judgment on the free speech, Title VII, and equal protection claims. While the majority would remand all three claims for a trial, I would remand only the Title VII and equal protection claims, granting judgment to the plaintiffs on their free speech claim as a matter of law.
. Since I would decide the free speech issue as a matter of law, obviously I would reach the qualified immunity question there as well.