IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-31099

ALEASHIA CLARKSTON; 

KINGDOM BUILDERS COMMUNITY DEVELOPMENT CORPORATION, 

Plaintiffs–Appellants,

versus

JOHN WHITE, In His Individual Capacity as 

Superintendent of the Louisiana Department of Education, 

Defendant–Appellee.

Appeal from the United States District Court 

for the Middle District of Louisiana

Before OWEN, Chief Judge, SMITH and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Kingdom Builders Community Development Corporation (“Kingdom 

Builders”) and its CEO, Aleashia Clarkston, sued John White, the Superintendent of the Louisiana Department of Education (“LDOE”), alleging that 

White caused the denial of Kingdom Builders’s charter school application in 

retaliation for Clarkston’s expressing her views on disciplinary practices—

including corporal punishment—on the nationally televised show America’s 

United States Court of Appeals

Fifth Circuit

FILED

October 25, 2019

Lyle W. Cayce

Clerk

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Supernanny. Plaintiffs sought damages via a 42 U.S.C. § 1983 claim for First 

Amendment retaliation and a state retaliation claim per article I, section 7 of 

the Louisiana Constitution. The district court held that Clarkston had “failed 

to state a valid claim for retaliation.” We affirm on a different ground.

I.

In June 2015, Kingdom Builders submitted a charter school application 

to the Lafayette Parish School Board, which the board denied. Plaintiffs 

appealed to the Louisiana Board of Elementary and Secondary Education 

(“BESE”).1 In connection with that appeal, the LDOE and SchoolWorks, a 

third-party evaluator contracted by the LDOE, evaluated plaintiffs’ application. SchoolWorks recommended that the BESE approve the application, but

the LDOE—through White—recommended that the BESE deny it.2

Following the conflicting reports, the BESE deferred ruling on the appeal 

and directed White to hire a third party to review his concerns with Clarkston’s 

application. White contracted with Transcendent Legal to conduct that review. 

Transcendent Legal’s report focused on “concerns specifically pertain[ing] to 

whether or not the proposed school leader [(Clarkston)] possesse[d] the professional judgment necessary to open and lead a high-performing charter 

school.” Among those concerns was Clarkston’s appearance on the television 

show America’s Supernanny, which “caused the [LDOE] to question her professional judgment in choosing to air her family’s disciplinary practices,” 

 

1 Under Louisiana law, a charter school must first submit its application to the local 

school board. LA. STAT. ANN. § 17:3983(A)(2)(a)(i). If the application is denied, the chartering 

group may appeal to the BESE. See id.

2 As Superintendent, White is responsible for “[m]ak[ing] recommendations on contracts and agreements to be entered into by the board.” Id. § 17:22(2)(b). The BESE—not 

the LDOE—has the authority under state law to approve or deny a charter school application. 

Id. § 17:3983(A)(3)(c).

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including the use of corporal punishment, “on national television while representing herself as an educator.”

Applying six norms used by the National Policy Board for Educational 

Administration,3 Transcendent Legal examined Clarkston’s professionalism. 

It concluded that she exceeded expectations for one of the professional norms, 

met expectations for two, and failed to meet expectations for three. Transcendent Legal recognized that “[w]ithout question, Mrs. Clarkston’s deficiencies 

in any given norm resulted solely from Mrs. Clarkston’s decision to participate 

in the reality show Supernanny and/or the related publicizing of her participation in that television show just three (3) short years ago.”

In March 2016, after reviewing the evaluations of the School Board, 

SchoolWorks, and Transcendent Legal, the LDOE—through White—again 

recommended that the BESE deny plaintiffs’ application. Highlighting that 

Transcendent Legal’s “report provide[d] mixed conclusions regarding the professional judgment of the proposed school leader that neither disqualifies nor 

validates the Department’s concerns,” the LDOE emphasized that its “concerns 

serve not as definitive character statements, but rather as potential evidence 

of issues that should give BESE pause before authorizing the charter under 

the proposed leadership.”

After hearing from the LDOE, the BESE denied plaintiffs’ application. 

 

3 The standards asked whether Clarkston: (1) “act[ed] professionally in personal conduct, relationships with others, decision-making, stewardship of the school’s resources, and 

all aspects of school leadership”; (2) “act[ed] according to and promote[d] the professional 

norms of integrity, fairness, transparency, trust, collaboration, perseverance, learning, and 

continuous improvement”; (3) “place[d] children at the center of education and accept[ed] 

responsibility for each student’s academic success and well-being”; (4) “safeguard[ed] and 

promote[d] the values of democracy, individual freedom and responsibility, equity, social 

justice, community, and diversity”; (5) “le[d] with interpersonal and communication skill, 

social-emotional insight, and understanding of all students’ and staff members’ backgrounds 

and cultures”; and (6) “promote[d] professional behavior among faculty and staff.”

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Both sides now agree that the BESE was the ultimate decisionmaker.

Plaintiffs brought claims for retaliation, alleging violations of the First 

and Fourteenth Amendments and article I, section 7 of the Louisiana Constitution.4 Plaintiffs contended that White took “action against the Plaintiffs 

because he disagreed with opinions expressed by Mrs. Clarkston on a national 

television show, ‘America’s Supernanny,’ in 2013 regarding corporal punishment of her own children.” They also contended that “White’s opinion and recommendation to the [BESE] was a motivating factor in the Board’s decision to 

deny Kingdom Builders’ charter school application.”

White moved for summary judgment, asserting, inter alia, the defense of 

qualified immunity (“QI”). The district court granted the motion and dismissed 

plaintiffs’ claims with prejudice, finding that they had failed to state a valid 

retaliation claim.

II.

We affirm on a basis different from the one relied on by the district court. 

White is entitled to QI because, at the time of his alleged violation, it was not 

clearly established that First Amendment liability could attach to a public official who did not possess final decisionmaking authority. The district court did 

not reach the QI inquiry, but this court may affirm for any reason supported 

by the record, even if not relied on by the district court. Palmer v. Waxahachie 

 

4 Article I, section 7 provides that “[n]o law shall curtail or restrain the freedom of 

speech or of the press. Every person may speak, write, and publish his sentiments on any 

subject, but is responsible for abuse of that freedom.” LA. CONST. art. I, § 7. “Louisiana’s 

constitutional protection of free speech mirrors that of the First Amendment,” Heaney v. 

Roberts, 846 F.3d 795, 801 n.2 (5th Cir. 2017), and “the Louisiana Supreme Court would 

recognize the same [QI] defense for claims under Article I, Section 7, that federal courts 

recognize for § 1983 First Amendment claims,” id. Therefore, if “summary judgment is proper 

as to Plaintiffs’ First Amendment claims, summary judgment is also proper on Plaintiffs’ 

Article I, § 7 state law claims.” Cripps v. La. Dep’t of Agric. & Forestry, 819 F.3d 221, 231 

(5th Cir. 2016). Accordingly, the two claims are analyzed as a single issue.

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Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009).

A.

Government officials “are entitled to [QI] under § 1983 unless (1) they 

violated a federal statutory or constitutional right, and (2) the unlawfulness of 

their conduct was clearly established at the time.” District of Columbia v. 

Wesby, 138 S. Ct. 577, 589 (2018) (internal quotation marks omitted). Courts 

are “permitted to exercise their sound discretion in deciding which of the two 

prongs of the [QI] analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 

236 (2009).

The plaintiff has the burden to point out the clearly established law. 

Delaughter v. Woodall, 909 F.3d 130, 139 (5th Cir. 2018). “Clearly established 

law is determined by controlling authority—or a robust consensus of persuasive authority—that defines the contours of the right in question with a high 

degree of particularity.” Id. (internal quotation marks omitted). “This means 

the contours of the right must be sufficiently clear that a reasonable official 

would understand that what he is doing violates that right, although it is not 

necessary for controlling precedent to have held that the official’s exact act was 

unlawful.” Id. at 139–40 (internal quotation marks omitted). Ultimately, 

“[t]he central concern is whether the official has fair warning that his conduct 

violates a constitutional right.” Id. at 140.

B.

We conclude, at the second prong, that the right at issue was not clearly 

established, so White is entitled to QI. It thus is unnecessary for us to reach 

the more complicated issue of whether a rights violation occurred at the first 

prong. See Callahan, 555 U.S. at 236.

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At the time White allegedly violated plaintiffs’ rights—March 2016, at 

the latest—this court’s jurisprudence was ambiguous regarding whether First 

Amendment liability could attach to a public official who did not possess final 

decisionmaking authority.5 Because White was not a final decisionmaker, it 

was not clearly established that he could be liable for his recommendation to 

the BESE. Accordingly, he is entitled to QI.

AFFIRMED.

 

5 See, e.g., Sims v. City of Madisonville, 894 F.3d 632, 641 (5th Cir. 2018) (per curiam) 

(holding that caselaw had not clearly established “whether First Amendment liability can 

attach to a public official who did not make the final employment decision”); Pennypacker v. 

City of Pearl, 689 F. App’x 332, 332 (5th Cir. 2017) (per curiam) (“It is not clearly established 

in this circuit whether [non-final decisionmakers] may be held personally liable for First 

Amendment retaliation under § 1983.”).

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