United States Court of Appeals
Fifth Circuit
F I L E D
In the United States Court of Appeals
December 10, 2004
For the Fifth Circuit
Charles R. Fulbruge III
_________________________ Clerk
No. 04-30162
_________________________
ADAM PORTER, ET AL,
Plaintiffs,
ADAM PORTER,
Plaintiff - Appellant,
versus
ASCENSION PARISH SCHOOL BOARD, et al.,
Defendants - Appellees.
_________________________
Appeal from the United States District Court
For the Middle District of Louisiana
_________________________
Before KING, Chief Judge, HIGGINBOTHAM, and DAVIS, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This case highlights the difficulties of school administrators
charged to balance their duty to provide a safe school with the
constitutional rights of individual students when violence in
schools is a serious concern. We must decide whether officials
within the Ascension Parish School District responded appropriately
in removing Adam Porter from East Ascension High School and
requiring him to enroll in an alternative school for a sketch
depicting a violent siege on the EAHS that he had drawn two years
earlier, and was accidentally taken to school by his younger
brother. We hold that the only defendant left in the case, EAHS
principal Conrad Braud, is entitled to qualified immunity with
respect to Adam’s First Amendment claim, and affirm the district
court’s grant of summary judgment.
I
A
When Adam Porter was fourteen years old, he sketched a drawing
of his school, East Ascension High School, in the privacy of his
home. It was crudely drawn, depicting the school under a state of
siege by a gasoline tanker truck, missile launcher, helicopter, and
various armed persons. The sketch also contained obscenities and
racial epithets directed at characters in the drawing, a
disparaging remark about EAHS principal Conrad Braud, and a brick
being hurled at him. After completing the sketch, Adam showed it
to his mother, Mary LeBlanc, his younger brother, Andrew Breen, and
a friend, Kendall Goudeau, who was living with the family at the
time. The sketchpad was then stored in a closet in Adam’s home.
Two years later, Andrew Breen, then age twelve, rummaged
through the closet looking for something to draw on, and came upon
Porter’s sketchpad. Andrew drew a llama on a blank page in the
pad, and then took the pad to his school, Galvez Middle School, to
show his drawing to his teacher. On March 15, 2001, while riding
the bus on his way home from school, Andrew allowed a fellow
student to see his drawing. While flipping through the pages of
2
the pad, the student came upon the two-year old drawing by Adam and
showed it to the bus driver, Diane McCauley, exclaiming, “Miss
Diane, look, they’re going to blow up EAHS.” McCauley immediately
confiscated the pad. On the following morning, McCauley took the
pad to Linda Wilson, the principal of Galvez Middle School, and
Myles Borque, the in-school suspension coordinator. After viewing
Adam’s drawing, Wilson called Andrew to her office where he was
questioned about the drawing and his book bag was searched. In
response to questioning by Wilson and Borque, Andrew admitted that
Adam had drawn the picture. Andrew was then suspended for
possessing the drawing on school grounds.
The sketchpad was sent to EAHS where school resource officer
Robert Rhodes interrupted a meeting to show the drawing to
principal Conrad Braud and assistant principal Gwynne Pecue.
Alarmed, Braud and Pecue immediately summoned Adam to Rhodes’s
office where he readily admitted that he had drawn the sketch two
years earlier. School officials then searched Adam’s book bag and
his person and found a box cutter with a one-half inch exposed
blade in his wallet. The officials also found notebooks in Adam’s
bag containing references to death, drugs, sex, depictions of gang
symbols, and a fake ID. Adam explained that he used the box
cutter in his after-school job at a local grocery store. Although
unclear as to when, the record indicates that he later explained
that the references to death were part of a homework assignment,
and that the “gang symbols” referred only to a group of young men
3
with whom Adam associated, and who Braud did not consider to be a
threat.
Adam’s mother, Mary LeBlanc, was contacted, and after arriving
at EAHS, was told that Adam was being recommended for expulsion.
Adam and his mother were then allowed to leave carrying a written
recommendation for expulsion and instructions for Adam to remain at
home until a hearing could be held. No hearing date was
immediately set. Shortly thereafter, Officer Rhodes obtained a
warrant to arrest Adam for “terrorizing” EAHS, and Adam was held
for four nights at the Donaldsonville jail on charges of
terrorizing the school and carrying an illegal weapon.
A week later, on March 23, 2001, Mary LeBlanc met with Linda
Lamendola, hearing officer for the Ascension Parish School Board.
LeBlanc was advised that expulsion hearings were regularly decided
in the school’s favor, and that Adam could immediately enroll in
the Ascension Parish Alternative School and continue his education
if she waived the hearing. LeBlanc signed the waiver form provided
by Lamendola, and Adam was enrolled in the alternative school. The
following August, Adam was allowed to re-enroll at EAHS, but
dropped out in March, 2002.
B
Mary LeBlanc filed suit on behalf of Adam and Andrew against
the Ascension Parish School Board, Robert Cloutare in his official
capacity as superintendent of the School Board, Conrad Braud,
individually and in his official capacity as Principal of EAHS, and
4
Linda Wilson, individually and in her official capacity as
principal of Galvez Middle School. The suit, brought under 42
U.S.C. § 1983, alleged violations of the First, Fourth, and Eighth
Amendments, and a denial of equal protection and procedural due
process and rights secured by 20 U.S.C. § 1415.1 Defendants filed
a motion for summary judgment asserting that no constitutional
violation could be shown as a matter of law and claiming the
defense of qualified immunity.
The district court dismissed without objection plaintiffs’
equal protection, Eighth Amendment, and § 1415 claims, and
plaintiffs agreed to dismiss all claims against Linda Wilson. The
district court analyzed Adam’s First Amendment claim, and concluded
that his drawing was not entitled to protection under any of three
different standards.2 The court then disposed of Adam’s Fourth
Amendment claim, finding that the school’s search and detention of
him was reasonable.3 The court next found that Adam’s procedural
due process claim was unavailing based on Adam’s admission that he
1
20 U.S.C.A. § 1415 (2000) (providing parents of disabled children with
certain procedural safeguards regarding the evaluation, placement and education
of their children within the public school system).
2
Porter v. Ascension Parish Sch. Bd., 301 F. Supp. 2d 576, 582-89 (M.D. La.
2004). In particular, the district court analyzed whether Adam’s drawing was
protected under (1) the “material and substantial interference” standard set
forth in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), and
LaVine v. Blaine Sch. Dist., 257 F.3d 981 (9th Cir. 2001); (2) the “true threat”
standard set forth in Watts v. United States, 394 U.S. 705 (1969), and Doe v.
Pulaski County Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002); and (3) our non-
viewpoint based approach set forth in Canady v. Bossier Parish Sch. Bd., 240 F.3d
437 (5th Cir. 1996).
3
Porter, 301 F. Supp. 2d at 589-92.
5
had drawn the sketch and that the items found in his book bag and
on his person belonged to him, and LeBlanc’s signed waiver of his
right to a hearing.4 Next, the court found that even if Adam had
established a violation of his rights, Braud was entitled to
qualified immunity.5 Finally, the court held that Adam had
produced no evidence of a policy or custom on the part of the
Ascension Parish School Board leading to a violation of his rights,
precluding his official capacity claims against Braud and
Cloutare.6
Based on these findings, the district court entered summary
judgment for the defendants. Adam filed a timely notice of appeal
from this judgment.
II
“We review the grant of a motion for summary judgment de
novo.”7 Summary judgment is appropriate when “the pleadings and
the evidence demonstrate that no genuine issue of material fact
exists and the movant is entitled to judgment as a matter of law.”8
In the present case, the district court granted the defendants’
motion for summary judgment on grounds that plaintiffs had failed
4
Id. at 592-95.
5
Id. at 595-97.
6
Id. at 597-98.
7
Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004).
8
Id. (citing FED. R. CIV. P. 56(c)).
6
to raise a material fact issue with respect to any of their
constitutional claims, and on the alternative ground that defendant
Braud was entitled to summary judgment based on qualified
immunity.9
Although denominated in the alternative, these holdings follow
our analysis for determining whether a state official is entitled
to qualified immunity. When reviewing a grant of summary judgment
based on qualified immunity, we must first determine whether a
plaintiff successfully alleged facts showing the violation of a
constitutional right by state officials, and whether there is a
genuine issue of material fact that the violation occurred.10 “If
there is no constitutional violation, our inquiry ends.”11
If we determine that the plaintiff’s alleged facts make out a
constitutional violation, we then ask whether the right allegedly
9
Adam did not brief on appeal the argument that the district court erred
in granting summary judgment for Braud and Cloutare on claims raised against them
in their official capacity. Therefore, we will not address this argument. See
Proctor & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004)
(“Failure adequately to brief an issue on appeal constitutes waiver of that
argument.”).
10
See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“A court required to rule
upon the qualified immunity issue must consider, then, this threshold question:
Taken in the light most favorable to the party asserting injury, do the facts
alleged show the officer’s conduct violated a constitutional right? This must
be the initial inquiry.”); Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555,
561 (5th Cir. 2003) (when considering whether to grant a summary judgment motion
based on qualified immunity, district court must determine whether a material
fact question exists regarding whether the defendant engaged in conduct violating
the plaintiff’s clearly established rights); Barrow v. Greenville Indep. Sch.
Dist., 332 F.3d 844, 846 (5th Cir. 2003) (finding that first question in
qualified immunity analysis is whether, “viewing the facts in a light most
favorable to the plaintiff . . . the plaintiff has alleged the violation of a
constitutional right”).
11
Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003).
7
violated was “clearly established” such that “it would be clear to
a reasonable [official] that his conduct was unlawful in the
situation he confronted.”12 We have found that a “right can be said
to have been clearly established only if all reasonable officials
in the defendant’s position would have concluded that the
challenged state action was unconstitutional.”13
Even if we find that the right was clearly established at the
time of the alleged violation, however, a defendant will still be
entitled to qualified immunity if the defendant’s conduct was
“objectively reasonable in light of ‘clearly established’ law at
the time of the violation.”14 The reasonableness of an official’s
actions must be assessed in light of “the facts available to him at
the time of his action and the law that was clearly established at
the time of the alleged illegal acts.”15
A
1
Adam first claims that EAHS violated the First Amendment in
removing him from school based on the contents of his drawing.
12
Anderson v. Creighton, 483 U.S. 635, 640 (1987); Barrow, 332 F.3d at 846
(second question in qualified immunity analysis is whether the “constitutional
right was clearly established when the violation supposedly occured”).
13
Barrow, 332 F.3d at 846 (citing Cozzo v. Tangipahoa Parish Council, 279
F.3d 273, 284 (5th Cir. 2002)).
14
Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273, 279 (5th Cir. 2003)
(quoting Siegert v. Gilley, 500 U.S. 226, 231-32 (1991)).
15
Id. at 284 (quoting Hays County Guardian v. Supple, 969 F.2d 111, 125
(5th Cir. 1992)).
8
Uncertain as to the appropriate legal standard under which the
drawing was to be analyzed, the district court employed three
different approaches before concluding that the drawing was not
entitled to First Amendment protection. The parties argue all
three standards on appeal.
The first two standards employed by the district court were
developed specifically to balance the First Amendment rights of
students with the special need of educators to maintain a safe and
effective learning environment.16 The first standard, originally
set forth in Tinker v. Des Moines Independent Community School
District, provides that school officials may regulate student
speech when they can demonstrate that such speech would
“substantially interfere with the work of the school or impinge
16
See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (“A
school need not tolerate student speech that is inconsistent with its ‘basic
educational mission,’ even though the government could not censor similar speech
outside the school.”) (quoting Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685
(1986)); Canady, 240 F.3d at 441 (“While certain forms of expressive conduct and
speech are sheltered under the First Amendment, constitutional protection is not
absolute, especially in the public school setting. Educators have an essential
role in regulating school affairs and establishing appropriate standards of
conduct.”).
Our court has identified four categories of school regulations aimed at
student speech, with each being reviewing under a different standard. These
categories are: (1) school regulations directed at specific student viewpoints;
(2) school regulations governing student expression involving lewd, vulgar,
obscene or offensive speech; (3) school regulations governing student speech
related to school-sponsored activities; and (4) school regulations that are
viewpoint-neutral and fall into none of the previous three categories. Id., 240
F.3d at 441-44. Because EAHS officials did not punish Adam for the lewd, vulgar,
obscene or offensive content of his drawing, and because his drawing was not
composed as part of a school sponsored activity, the district court correctly
declined to examine the drawing under categories (2) and (3).
9
upon the rights of other students.”17 We have found that this
standard applies to school regulations directed at specific student
viewpoints.18 The second standard provides that school officials
may regulate student speech if the regulation “furthers an
important or substantial government interest; if the interest is
unrelated to the suppression of student expression; and if the
incidental restrictions on First Amendment activities are no more
than is necessary to facilitate that interest.”19 We have found
that this standard applies to regulations unrelated to any
viewpoint.20 Both of these standards are applicable to student
expression “that happens to occur on the school premises.”21
Given the unique facts of the present case, we decline to find
that Adam’s drawing constitutes student speech on the school
premises. Adam’s drawing was completed in his home, stored for two
years, and never intended by him to be brought to campus. He took
no action that would increase the chances that his drawing would
find its way to school; he simply stored it in a closet where it
remained until, by chance, it was unwittingly taken to Galvez
Middle School by his brother. This is not exactly speech on campus
17
Canady, 240 F.3d at 442 (quoting Tinker, 393 U.S. at 508) (internal
quotation marks omitted).
18
Id.
19
Id. at 443.
20
Id.
21
Id. (quoting Kuhlmeier, 484 U.S. at 271).
10
or even speech directed at the campus.22
The third standard employed by the district court in analyzing
Adam’s drawing was developed to deal with speech constituting a
“true threat.” As a general rule, the First Amendment prohibits
government actors from “dictating what we see or read or speak or
hear.”23 However, the government can proscribe a true threat of
22
We are aware of the difficulties posed by state regulation of student
speech that takes place off-campus and is later brought on-campus either by the
communicating student or others to whom the message was communicated. Refusing
to differentiate between student speech taking place on-campus and speech taking
place off-campus, a number of courts have applied the test in Tinker when
analyzing off-campus speech brought onto the school campus. See Boucher v. Sch.
Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 827-28 (7th Cir. 1998) (student
disciplined for an article printed in an underground newspaper that was
distributed on school campus); Sullivan v. Houston Indep. Sch. Dist., 475 F.2d
1071, 1075-77 (5th Cir. 1973) (student punished for authoring article printed in
underground newspaper distributed off-campus, but near school grounds); LaVine,
257 F.3d at 989 (analyzing student poem composed off-campus and brought onto
campus by the composing student under Tinker); Killion v. Franklin Reg’l Sch.
Dist., 136 F. Supp. 2d 446, 455 (W.D. Pa. 2001) (student disciplined for
composing degrading top-ten list distributed via e-mail to school friends, who
then brought it onto campus; author had been disciplined before for bringing top-
ten lists onto campus); Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088,
1090 (W.D. Wash. 2000) (applying Tinker to mock obituary website constructed off-
campus); Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1180 (E.D.
Mo. 1998) (student disciplined for article posted on personal internet site);
Bystrom v. Fridley High Sch., 686 F. Supp. 1387, 1392 (D. Minn. 1987) (student
disciplined for writing article that appeared in an underground newspaper
distributed on school campus).
Our analysis today is not in conflict with this body of case law; rather,
the fact that Adam’s drawing was composed off-campus and remained off-campus for
two years until it was unintentionally taken to school by his younger brother
takes the present case outside the scope of these precedents. See Thomas v. Bd.
of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1050-52 (2d. Cir. 1979)
(refusing to apply Tinker to student newspaper published and distributed off-
campus); Klein v. Smith, 635 F. Supp. 1440, 1441-42 (D. Me. 1986) (enjoining
suspension of student who made a vulgar gesture to a teacher while off-campus);
see also Killion, 136 F. Supp. 2d at 454 (“Although there is limited case law on
the issue, courts considering speech that occurs off school grounds have
concluded (relying on Supreme Court decisions) that school official’s authority
over off-campus expression is much more limited than expression on school
grounds.”); Clay Calvert, Off-Campus Speech, On-Campus Punishment: Censorship of
the Emerging Internet Underground, 7 B.U.J. SCI. & TECH. L. 243, 279 (2001)
(noting that Tinker is ill-suited to deal with off-campus student expression that
is unintentionally brought on-campus by others).
23
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245 (2002).
11
violence without offending the First Amendment.24 Speech is a “true
threat” and therefore unprotected if an objectively reasonable
person would interpret the speech as a “serious expression of an
intent to cause a present or future harm.”25 The protected status
of the threatening speech is not determined by whether the speaker
had the subjective intent to carry out the threat; rather, to lose
the protection of the First Amendment and be lawfully punished, the
threat must be intentionally or knowingly communicated to either
the object of the threat or a third person.26 Importantly, whether
a speaker intended to communicate a potential threat is a threshold
issue, and a finding of no intent to communicate obviates the need
24
See Virginia v. Black, 538 U.S. 343, 359 (2003) (upholding Virginia law
prohibiting cross burning with intent to intimidate); R.A.V. v. City of St. Paul,
505 U.S. 377, 388 (1992) (“[T]hreats of violence are outside the First
Amendment.”); Watts v. United States, 394 U.S. 705, 707-08 (1969) (finding that
the First Amendment permits states to prohibit speech that constitutes a “true
threat”).
25
Doe, 306 F.3d at 622; see also United States v. Fulmer, 108 F.3d 1486,
1490-91 (1st Cir. 1997) (collecting and discussing cases).
26
See Black, 538 U.S. at 359 (“‘True threats’ encompass those statements
where the speaker means to communicate a serious expression of an intent to
commit an act of unlawful violence to a particular individual or group of
individuals.”); Doe, 306 F.3d at 624 (“In determining whether a statement
amounts to an unprotected threat, there is no requirement that the speaker
intended to carry out the threat, nor is there any requirement that the speaker
was capable of carrying out the purported threat of violence. However, the
speaker must have intentionally or knowingly communicated the statement in
question to someone before he or she may be punished or disciplined for it.”
(citing Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of
Life Activists, 290 F.3d 1058, 1075 (9th Cir. 2002)); see also United States v.
Stevenson, 126 F.3d 662, 664 (5th Cir. 1997) (finding that, for purpose of
criminalizing speech as a threat under 18 U.S.C. § 115(a)(1)(B) and 18 U.S.C.
§ 871, the speaker need only “intentionally or knowingly [communicate] his
threat”) (quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th
Cir. 1990)).
12
to assess whether the speech constitutes a “true threat.”27
The Eighth Circuit’s decision in Doe v. Pulaski County Special
School District28 is an illustrative application of these principles
to an alleged threat made by a student off-campus but carried on-
campus by another student. In Doe, a boy in junior high school
drafted two letters to his former girlfriend containing “violent,
misogynic and obscenity-laden rants” expressing a desire to assault
and murder her.29 Months later, the boy’s best friend discovered
the letters, and after first objecting, the boy allowed his friend
to read them. The friend later absconded with at least one of the
letters and showed it to the girlfriend. In addition, the boy had
discussed the violent letters with his former girlfriend in phone
conversations, ultimately admitting that he penned the letters.30
After obtaining and reading one of the letters, the girlfriend
reported the boy to school officials who recommended him for
expulsion. The boy’s parents filed suit, arguing infringement of
his First Amendment rights. The district court held that the
letter was protected under the First Amendment, and did not
constitute a true threat because the boy did not intend to deliver
27
See Doe, 306 F.3d at 624 (“Before we address whether a reasonable
recipient would view the letter as a threat, we are faced with a threshold
question of whether J.M. intended to communicate the purported threat.”);
Orozco-Santillan, 903 F.2d at 1266 n.3 (“The only intent requirement [in the true
threat analysis] is that the defendant intentionally or knowingly communicates
his threat, not that he intended or was able to carry out his threat.”).
28
306 F.3d 616 (8th Cir. 2002).
29
Id. at 619.
30
Id. at 619-20.
13
it to his girlfriend. Reversing the district court, the Eighth
Circuit found that a reasonable and objective recipient would
regard the letter as a true threat. In addition, the Eighth
Circuit found that the boy intentionally communicated the threat
because he allowed his friend to read the letter knowing that his
friend was also a close friend of his former girlfriend.
Furthermore, the boy discussed the letters with his girlfriend on
the telephone on multiple occasions.31
Unlike the court in Doe, we need not decide whether Adam’s
drawing would constitute a true threat in the eyes of a reasonable
and objective person because Adam did not intentionally or
knowingly communicate his drawing in a way sufficient to remove it
from the protection of the First Amendment. While it is true that
Adam showed his drawing to his mother, brother, and friend Kendall
Goudeau, this communication was confined to his own home, and more
than two years passed before the drawing serendipitously reached
the EAHS campus. That the introduction of the drawing to EAHS was
wholly accidental and unconnected with Adam’s earlier display of
the drawing to members of his household is undisputed. Private
writings made and kept in one’s home enjoy the protection of the
First Amendment, as well as the Fourth.32 For such writings to lose
31
Id. at 624-25.
32
See Stanley v. Georgia, 394 U.S. 557, 568 (1969) (holding that the First
and Fourteenth Amendments prohibit the state’s regulatory power from extending
to possession by an individual of obscene materials in his home); Doe, 306 F.3d
at 624 (“The government . . . has no valid interest in the contents of a writing
that a person . . . might prepare in the confines of his own bedroom.”); United
14
their First Amendment protection, something more than their
accidental and unintentional exposure to public scrutiny must take
place.33
Because Adam’s drawing cannot be considered a true threat as
it was not intentionally communicated, the state was without
authority to sanction him for the message it contained. Although
Adam has produced evidence that his drawing comprised the primary
impetus for his expulsion from school, he has not established this
as a matter of law. Consequently, a fact issue remains as to
whether Adam’s First Amendment rights were infringed by EAHS, and
the district court erred in finding otherwise.
2
Because Adam raised a material fact question with respect to
his First Amendment claim, we must proceed to ascertain whether
Adam’s rights were “clearly established” such that “it would be
clear to a reasonable [official] that his conduct was unlawful in
the situation he confronted.”34 “This is not to say that an
States v. Pryba, 502 F.2d 391, 407 (D.C. Cir. 1974) (“The principle underlying
Stanley . . . is that the Constitution extends special safeguards to the privacy
of the home, in common with a few other special societal institutions.”).
33
The district court expressly rejected the view that threats must first
be intentionally communicated before losing First Amendment protection, noting:
“Plaintiffs seek to distinguish this case from Doe by arguing that Adam did not
intentionally disclose his drawing to anyone else. This does not and should not
matter. What does matter is that the drawing did end up in the hands of a
student, a bus driver and school administrators . . . .” Porter, 301 F. Supp.
2d at 588 (emphasis added). This conclusion erroneously ignores the clear
dictate that “true threats” must first be communicated in some knowing and
intentional manner.
34
Anderson, 483 U.S. at 640; see Mace, 333 F.3d at 623-24 (discussing two-
step qualified immunity analysis).
15
official action is protected by qualified immunity unless the very
act in question has previously been held unlawful, but it is to say
that in the light of pre-existing law the unlawfulness must be
apparent.”35 Even if we find that Adam’s right to First Amendment
protection is clearly established, Principal Braud will still
receive qualified immunity if his actions were objectively
reasonable in light of the circumstances he faced at the time he
acted.36 Qualified immunity should be recognized if officials “of
reasonable competence could disagree on [whether a particular
action is lawful].”37 The Supreme Court has observed that the
protection afforded by qualified immunity is broad, protecting “all
but the plainly incompetent or those who knowingly violate the
law.”38
It is indisputable that expressions such as Adam’s drawing,
provided that they do not constitute a true threat, are entitled to
First Amendment protection. It is also clear that such drawings
are entitled to diminished First Amendment protection when composed
by a student on-campus, or purposefully brought onto a school
campus where they become on-campus speech subject to special
35
Anderson, 483 U.S. at 640 (1987).
36
Saucier v. Katz, 533 U.S. 194, 202 (2001).
37
Hope v. Pelzer, 536 U.S. 730, 752 (2002) (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)) (internal quotation marks omitted).
38
Id. (quoting Malley, 475 U.S. at 341) (internal quotation marks omitted).
16
limitations.39 The line dividing fully protected “off-campus”
speech from less protected “on-campus” speech is unclear, however,
in cases such as this involving off-campus speech brought on-campus
without the knowledge or permission of the speaker.
Many courts have applied the Tinker standard in evaluating
off-campus student speech later brought on-campus by persons other
than the speaker. These cases have dealt with such things as
“underground” student newspapers distributed off-campus,40 student-
run websites created on off-campus computers,41 and various writings
brought on-campus by students other than their original author.42
Although reaching differing conclusions as to the legality of
restrictions placed upon the speech in question, these cases
consistently approach off-campus speech brought on-campus as
39
See Kuhlmeier, 484 U.S. at 266 (“[T]he First Amendment rights of students
in the public schools are not automatically coextensive with the rights of adults
in other settings and must be applied in light of the special characteristics of
the school environment.”).
40
See Boucher, 134 F.3d at 827-28 (applying Tinker and finding that article
advocating “hacking” school computers allowed school officials to reasonably
forecast that substantial disruption of school functions would ensue); Shanley
v. N.E. Indep. Sch. Dist., 462 F.2d 960, 970-75 (5th Cir. 1972) (analyzing
student newspaper published off-campus and occasionally taken on-campus by others
under Tinker while noting that “it is not at all unusual to allow the
geographical location of the actor to determine the constitutional protection
that should be afforded to his or her acts”); Sullivan, 475 F.2d at 1076
(applying Tinker and finding that student newspaper published off-campus did not
substantially disrupt school activities).
41
See Emmett, 92 F. Supp. 2d at 1090 (applying Tinker to mock obituary
website constructed off-campus); Beussink, 30 F. Supp. 2d at 1180-82 (applying
Tinker to student homepage built at an off-campus computer and accessed by other
students on-campus; granting request for injunction in favor of student against
10-day suspension).
42
See Killion, 136 F. Supp. 2d at 455 (applying Tinker to “top-ten” list
authored by a student off-campus, and taken on-campus by others without his
express instruction).
17
subject to regulation under Tinker’s “material and substantial”
disruption test.
Not all courts have adopted this approach, however, and some
have found that off-campus speech is entitled to full First
Amendment protection even when it makes its way onto school grounds
without the assistance of the speaker.43 Still others have adopted
a combination approach, analyzing off-campus speech under a flurry
of standards in an effort to comprehensively address all possible
legal approaches.44 Frustrated by these inconsistencies,
commentators have begun calling for courts to more clearly
delineate the boundary line between off-campus speech entitled to
greater First Amendment protection, and on-campus speech subject to
greater regulation.45
43
See Thomas, 607 F.2d at 1050 (“[B]ecause school officials ventured out
of the school yard and into the general community where the freedom accorded
expression is at its zenith, their actions must be evaluated by the principles
that bind government officials in the public arena.”); see also Bethel Sch. Dist.
No. 403 v. Fraser, 478 U.S. 675, 688 (1986) (Brennan, J., concurring) (noting
that student who was penalized for making lewd comments during a school-sponsored
debate could not be punished had he “given the same speech outside of the school
environment . . . simply because government officials considered his language to
be inappropriate . . .”).
44
See Mahaffey v. Aldrich, 236 F. Supp. 2d 779, 783-86 (E.D. Mich. 2002)
(analyzing an off-campus website under Tinker and the true threat analysis while
citing to Thomas for the proposition that school officials have limited authority
over off-campus student expression). This appears to be the approach adopted
by the district court below.
45
See, e.g., Robert Richards & Clay Calvert, Columbine Fallout: The Long-
Term Effects on Free Expression Take Hold in Public Schools, 83 B.U.L. REV. 1089,
1116-20 (2003) (questioning whether school officials should ever have
jurisdiction over student speech that takes place off-campus, and is later
transported on-campus by another without the communicating student’s permission);
Calvert, supra note 22, at 270-75 (2001) (noting that Tinker and its progeny do
not apply to off-campus student speech that is not “brought” by the student onto
the school campus); see also Sarah Redfield, Threats Made, Threats Posed: School
and Judicial Analysis in Need of Redirection, 2003 B.Y.U. EDUC. & L.J. 663, 672-73
18
Because Adam’s drawing was composed off-campus, displayed only
to members of his own household, stored off-campus, and not
purposefully taken by him to EAHS or publicized in a way certain to
result in its appearance at EAHS, we have found that the drawing is
protected by the First Amendment. Furthermore, we have found that
it is neither speech directed at the campus nor a purposefully
communicated true threat. However, a reasonable school official
facing this question for the first time would find no “pre-
existing” body of law from which he could draw clear guidance and
certain conclusions. Rather, a reasonable school official would
encounter a body of case law sending inconsistent signals as to how
far school authority to regulate student speech reaches beyond the
confines of the campus.
Given the unsettled nature of First Amendment law as applied
to off-campus student speech inadvertently brought on campus by
others, the contours of Adam’s right to First Amendment protection
in the present case cannot be deemed “clearly established” such
that it would be clear to a reasonable EAHS official that
sanctioning Adam based on the content of his drawing was unlawful
(2003) (noting that Tinker, Fraser, and Kuhlmeier, while possessing fact patterns
far removed from today’s school environments, continue to be applied to “new
facts in new places”); William Bird, Comment, True Threat Doctrine and Public
School Speech–An Expansive View of a School’s Authority to Discipline Allegedly
Threatening Student Speech Arising Off Campus: Doe v. Pulaski County Special
School District, 26 U. ARK. LITTLE ROCK L.REV. 111, 128 (2003) (“[Courts have]
failed to establish clear guidance as to how far the First Amendment extends in
protecting off campus student speech . . . . Many courts have extended Tinker
to apply to off-campus speech, while others have refused to recognize the
school’s disciplinary authority simply because of the speech’s off campus
origin.”).
19
under the circumstances. Thus, Braud is entitled to qualified
immunity.
Even if Adam’s rights were clearly established at the time of
his expulsion, Braud’s determination that the drawing was not
entitled to First Amendment protection was objectively reasonable.
The Supreme Court has observed that, even when a particular legal
doctrine is clearly established, “[i]t is sometimes difficult for
an [official] to determine how the relevant legal doctrine . . .
will apply to the factual situation the [official] confronts.”46
The record indicates that, at the time he recommended Adam for
expulsion, Braud was aware that Adam was responsible for the
drawing, that the drawing was two or three years old, and that the
drawing had been brought to Galvez Middle School by Adam’s younger
brother. These facts raise the subtle but important legal
questions of whether the drawing constitutes on-campus speech, or
an intentionally communicated threat. Although we have answered
both of these queries in the negative, we cannot say that all
reasonable school officials facing these circumstances would reach
the same conclusion. For example, looking to case law holding that
Tinker applies to a student’s website created off-campus and later
accessed on campus by others without the student’s knowledge or
encouragement, a reasonable school official might find that Adam’s
drawing is on-campus speech subject to regulation under the Tinker
46
Saucier, 533 U.S. at 205.
20
test.47
The Supreme Court has noted the particular relevance of the
qualified immunity doctrine to cases such as this, in which school
officials are required to make decisions without the benefit of
legal or factual clarity:
As with executive officers faced with instances of civil
disorder, school officials, confronted with student
behavior causing or threatening disruption, also have an
“obvious need for prompt action, and decisions must be
made on factual information supplied by others.”
Liability for damages for every action which is found
subsequently to have been violative of a student’s
constitutional rights and to have caused compensable
injury would unfairly impose upon the school
decisionmaker the burden of mistakes made in good faith
in the course of exercising his discretion with the scope
of his official duties. . . . Denying any measure of
immunity in these circumstances “would contribute not to
principled and fearless decision-making but to
intimidation.”48
Without condoning violations of student’s constitutional rights,
qualified immunity recognizes that school officials, such as
Principal Braud, must be allowed to make reasonable mistakes when
forced to act in the face of uncertainty.
Given the benefit of hindsight, the effort to fault Principal
Braud for failing to conduct a more thorough investigation into the
facts has purchase. For instance, Braud could have spoken with
Andrew Breen about how he acquired the drawing, or queried Kendall
Goudeau and other members of Adam’s friend group about whether Adam
47
See, e.g., Mahaffey, 236 F. Supp. 2d at 783-86; Emmett, 92 F. Supp. 2d
at 1090.
48
Wood v. Strickland, 420 U.S. 308, 319 (1975) (quoting Scheuer v. Rhodes,
416 U.S. 232, 246 (1974) and Pierson v. Ray, 386 U.S. 547, 554 (1967)).
21
had recently discussed the drawing or shown it to them. In
fairness, however, it was reasonable for Braud to forgo further
investigation given LeBlanc’s waiver of Adam’s right to a hearing.
By waiving the hearing, LeBlanc eliminated an important opportunity
for Braud and the Ascension Parish School Board to develop the
facts more fully.
Given the unique facts of the present case, we find that Braud
acted without the benefit of established law that was clear in its
application to these facts, and in an objectively reasonable
manner. Thus, he is entitled to qualified immunity with respect to
Adam’s First Amendment claim.
B
Adam’s second claim was that EAHS officials violated the
Fourth Amendment by searching his book bag and his person
immediately after he admitted that the drawing was his. Finding
that the search was reasonable, the district court held that Adam
had failed to raise a material fact issue regarding his Fourth
Amendment claim. We agree that the search was reasonable under the
circumstances, and therefore did not violate Adam’s Fourth
Amendment rights.
Students have a constitutional right under the Fourth and
Fourteenth Amendments to be free from unreasonable searches and
seizures while on school premises.49 At the same time, the
“accommodation of the privacy interests of schoolchildren with the
49
See New Jersey v. TLO, 469 U.S. 325, 334-37 (1985).
22
substantial need of teachers and administrators for freedom to
maintain order in the schools does not require strict adherence to
the requirement that searches be based on probable cause”; rather,
the legality of school searches depends upon the “reasonableness,
under all the circumstances, of the search.”50
The action must be “justified at its inception”51 and must be
“reasonably related in scope to the circumstances which justified
the interference in the first place.”52
Under ordinary circumstances, a search of a student by a
teacher or other school official will be justified “at
its inception” when there are reasonable grounds for
suspecting that the search will turn up evidence that the
student has violated or is violating either the law or
the rules of the school. Such a search will be
permissible in its scope when the measures adopted are
reasonable related to the objectives of the search and
not excessively intrusive in light of the age and sex of
the student and the nature of the infraction.53
Under the circumstances present at the time the search of Adam
and his book bag was conducted, EAHS officials had reasonable
grounds for suspecting that the search would produce evidence of an
50
Id. at 341; see Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656
(1995) (“Fourth Amendment rights, no less than First and Fourteenth Amendment
rights, are different in public schools than elsewhere; the ‘reasonableness’
inquiry cannot disregard the schools’ custodial and tutelary responsibility for
children.”); Milligan v. City of Slidell, 226 F.3d 652, 654-55 (5th Cir. 2000)
(“The [Supreme] Court [has] indicated that although the Fourth Amendment applies
in schools, the nature of those rights is what is appropriate for children in
school.”).
51
TLO, 469 U.S. at 341 (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968))
(internal quotation marks omitted).
52
Id. (quoting Terry, 392 U.S. at 20) (internal quotation marks omitted).
53
Id. at 341-42.
23
infraction of a school rule or policy.54 Specifically, the
officials were in possession of a drawing depicting numerous
violent acts being perpetrated against EAHS, its students, and
staff. In addition, Adam had admitted that the drawing was his
prior to the initiation of the search. Given that school officials
have a significant interest in deterring misconduct on the part of
students,55 and the fact that Adam had admitted to drawing the
sketch depicting large-scale acts of violence directed at EAHS, the
decision to search Adam was appropriate under the circumstances.56
The search was also reasonable in scope and not overly
intrusive under the circumstances. Following Adam’s admission of
54
As to the reasonableness of school searches under facts similar to those
in the present case, see Cuesta v. Sch. Bd. of Miami-Dade County, 285 F.3d 962,
965-69 (11th Cir. 2002) (finding that violent drawings accompanied by threatening
words aimed at the school is sufficient to create reasonable suspicion that the
a student may intend to harm the school); Williams v. Cambridge Bd. of Educ., 186
F. Supp. 2d 808, 815-16 (S.D. Ohio 2002) (finding probable cause for detention
of students who had discussed bringing guns and bombs to school in the wake of
the Columbine massacre when several classmates reported these statements to
school officials); Stockton v. City of Freeport, 147 F. Supp. 2d 642, 646 (S.D.
Tex. 2001) (finding that discovery of threatening letter on school property
justified detention of suspected students, and noting that “officials in the
Columbine massacre were harshly criticized for failing to take action regarding
prior signs of problems”).
55
Milligan, 226 F.3d at 655 (noting that protecting students and deterring
violent acts are “compelling government interests”); Hassan v. Lubbock Indep.
Sch. Dist., 55 F.3d 1075, 1079 (5th Cir. 1995) (“The Supreme Court has recognized
the unique backdrop that schools present for the operation of the fourth
amendment, specifically noting that ‘the preservation of order and a proper
educational environment requires close supervision of schoolchildren, as well as
the enforcement of rules against conduct that would be perfectly permissible if
undertaken by an adult.’” (quoting TLO, 469 U.S. at 741)).
56
Our holding that EAHS acted reasonably in searching Adam does not
conflict with our conclusion that his drawing did not represent a “true threat”
to the school. The fact that Adam did not intentionally communicate his drawing
precludes the application of the true threat analysis. Under the facts of this
case, however, the discovery of the drawing on school grounds, and Adam’s
subsequent admission of responsibility for its ominous content, provided EAHS
officials with reasonable suspicion sufficient to conduct a search of Adam.
24
responsibility for the drawing, EAHS officials searched his book
bag, including textbooks and notebooks found in the bag, and Adam’s
person, including his wallet. Without question, searching a
student’s person and his book bag is a process invasive of personal
privacy, requiring justification.57 Justification for the scope of
the search was present in this case based on the facts supporting
the initial decision to search.58
Because the search of Adam by EAHS officials was reasonable at
its inception, and was conducted in a reasonable manner when
balanced against the school’s interest in ensuring the safety and
welfare of students, Adam’s Fourth Amendment claim fails.
57
See TLO, 469 U.S. 337-38 (“A search of a child’s person or of a closed
purse or other bag carried on her person, no less than a similar search carried
out on an adult, is undoubtedly a severe violation of subjective privacy
interests.”).
58
In particular, the powerful interest of promoting school safety justified
the scope of the search in this case. See Vernonia Sch. Dist. 47J, 515 U.S. at
661 (when assessing scope of school searches, relevant inquiry is whether the
interest being protected is “important enough to justify that particular search
at hand”); Shade v. City of Farmington, 309 F.3d 1054, 1059-62 (8th Cir. 2002)
(detention and pat-down of student after school employee reported seeing student
with a knife was reasonable, even in light of fact that the knife had already
been turned over by another student); Thompson v. Carthage Sch. Dist., 87 F.3d
979, 982-83 (6th Cir. 1996) (finding that minimally invasive search of student’s
shoes and pockets was reasonable, even absent individualized suspicion, when
school officials have independent grounds for believing that weapons had been
brought to school on a particular day); Brousseau v. Town of Westerly, 11 F.
Supp. 2d 177, 182 (D.R.I. 1998) (finding that searches by school officials for
weapons and drugs are typically considered more compelling because the safety and
welfare of students is implicated).
Additionally, intrusions on the personal privacy interests of students have
been upheld based on lower indices of individualized suspicion than is present
in this case. See Cuesta, 285 F.3d at 968-70 (arrest and strip search of student
upheld as school officials had reasonable suspicion to believe that she was
carrying weapons after connecting her to the distribution of a pamphlet filled
with violent and racist content); Stockton, 147 F. Supp. 2d at 646 (finding that
discovery of threatening letter on school property justified detention of a group
of suspected students); Milligan, 226 F.3d at 654-55 (detention and questioning
of students reasonable when school officials had reasonable suspicion that a
fight was about to occur, even absent individualized suspicion that any one of
them had engaged in or was about to engage in criminal behavior).
25
C
Adam’s third claim alleges that he was denied his procedural
due process right to a hearing before being removed from EAHS.
Students have a “legitimate entitlement to a public education as a
property interest which is protected by the Due Process Clause and
which may not be taken away for misconduct without adherence to the
minimum procedures required by . . . [the Due Process] Clause.”59
At a minimum, “students facing suspension and the consequent
interference with a protected property interest must be given some
kind of notice and afforded some kind of hearing.”60
Adam had no formal hearing before the Ascension Parish School
Board before being removed from EAHS and transferred to the
alternative school. But, Adam had admitted to school officials his
responsibility for the drawing as well as his ownership of the box
cutter. Whether a student “admitted the charges” leveled against
him is “relevant in determining substantial prejudice or harm.”61
This is so because one of the primary purposes of expulsion
59
Goss v. Lopez, 419 U.S. 565, 574 (1975).
60
Id. at 579; Keough v. Tate County Bd. of Educ., 748 F.2d 1077, 1083 (5th
Cir. 1984) (finding that for suspensions greater than ten days, students should
be provided with a hearing, the names of witnesses who will be called, a summary
of those witnesses’ probable testimony, and an opportunity to present evidence
in rebuttal); Sweet v. Childs, 507 F.2d 675, 681 (5th Cir. 1975) (“The basic
requirement for notice and a hearing prior to the expulsion of a student from a
state-supported school are outlined in Dixon: ‘The notice should contain a
statement of the specific charges and grounds which, if proven, would justify
expulsion . . . . The nature of the hearing should vary depending upon the
circumstances of the particular case.’”) (quoting Dixon v. Alabama State Bd. of
Educ., 294 F.2d 150, 158 (5th Cir. 1961)).
61
Keough, 748 F.2d at 1083.
26
hearings is that of confirming whether the student threatened with
expulsion actually committed the conduct for which he is being
punished. Once a student has admitted his guilt, the need for a
hearing is substantially lessened.62
In addition to Adam’s admission, his mother signed a written
waiver of his right to a hearing. A parent may waive her child’s
due process rights to notice and a hearing prior to expulsion,
provided that the waiver is made voluntarily, knowingly and
intelligently.63 In the context of school disciplinary hearings,
a waiver has been considered effective when it was placed in
writing after a student’s parents consulted with an attorney, was
signed after all potential repercussions and consequences had been
rationally evaluated, and stated in several places that the student
was entitled to a hearing.64
Mary LeBlanc signed a form waiving Adam’s right to a hearing
62
See Watson v. Beckel, 242 F.3d 1237 (10th Cir. 2001) (adopting the
reasoning of Keough in holding that a student who was expelled without being
afforded sufficient process was not prejudiced because he admitted his guilt);
Black Coalition v. Portland Sch. Dist. No. 1, 484 F.2d 1040, 1045 (9th Cir. 1973)
(student not entitled to relief on due process claim because he “admitted all the
essential facts which it is the purpose of a due process hearing to establish”);
Betts v. Bd. of Educ. of the City of Chicago, 466 F.2d 629, 633 (7th Cir. 1972)
(“As to what process is due, it is important that the plaintiff unequivocally
admitted the misconduct with which she was charged. In such a circumstance, the
function of procedural protections in insuring a fair and reliable determination
of the retrospective factual question whether she in fact activated the false
fire alarms is not essential.”).
63
Davis Oil Co. v. Mills, 873 F.2d 774, 787 (5th Cir. 1989) (“Although due
process rights may be waived, a waiver of constitutional rights is not effective
unless the right is intentionally and knowingly relinquished.”); Gonzalez v.
Hidalgo County, 489 F.2d 1043, 1046 (5th Cir. 1973) (same).
64
See Coplin v. Conejo Valley Unified Sch. Dist., 903 F. Supp. 1377, 1383-
84 (M.D. Cal. 1995).
27
after discussing the matter with Ascension Parish School Board
hearing officer Linda Lamendola. LeBlanc had been told by school
officials that her son was entitled to a hearing. She was
presented with a range of options and probable outcomes by
Lamendola, including the option of pursuing a hearing, which
Lamendola indicated had little chance of success, and the option of
waiving her right to a hearing and enrolling her son immediately in
the alternative school. After weighing the alternatives, LeBlanc
made a rational decision to waive the hearing and enroll Adam in
the alternative school. Based on this evidence in the record,
Adam’s contention that his mother’s waiver was made involuntarily
is without merit.65
III
Adam did not brief whether the district court erred in
granting summary judgment in favor of those defendants sued in
their official capacities. This issue is waived. We find that the
district court properly granted summary judgment as to Adam’s
Fourth Amendment and Procedural Due Process claims. While we
cannot agree with its finding that there was no violation of the
First Amendment, we affirm its judgment on its alternative ground
that Principal Braud is entitled to qualified immunity.
The judgment of the district court is AFFIRMED.
65
The record also contains evidence that LeBlanc was being advised by
counsel at the time she signed the waiver form. However, the precise role and
involvement of counsel in her waiver decision is unclear.
28
Porter v. Ascension Parish School Board
Court: Court of Appeals for the Fifth Circuit
Date filed: 2004-12-10
Citations: 393 F.3d 608
Copy Citations