### 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 a s Superintendent o f th e Louisiana Department o f 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 Superin

tendent of the Louisiana Department of Education (“ LDOE ”) , alleging t hat White caused the denial of Kingdom Builders’ s charter school application in retaliation for Clarkston ’s expressing her views on disci plinary 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 Case: 18-31099 Document: 00515175015 Page: 1 Date Filed: 10/25/2019No. 18

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2 Supernanny

. P l aintiffs sought damages via a 42 U.S.C. § 1983 claim for First Amendment retaliation and a state retaliation claim per a rti cle I, section 7 of the Louisiana Constitution. Th e district court held that Clarkston had “failed to state a valid claim for retaliation.” W e affirm on a different ground.

I. In June 2015, Kingdom Builders submitted a charter school application to the Lafayette Parish School Board , which the b oard denied. P laintiffs
app ealed to the Louisiana Board of Elementary and Secondary Education (“BESE”). 1 In connection with that appeal , the LDOE a n d SchoolWorks , a third

- party evaluator contracted by the LDOE , evaluated p laintiffs’ applica

tion. SchoolWorks recommended that the B ESE approve the application , but t he 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 Lega l ’s report focused o n “concerns specifically pertain[ing] to whether or not the proposed school leader [(Clarkston)] possesse[d] the pro

fess ional 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 pro

fessional judgment in choosing to air he r family’s disciplinary practices,”

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

. S TAT

. A NN

. § 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 con

tracts and agreements to be entered into by the board. ” Id . § 17:22( 2)(b). T he BESE

— no t the LDOE

— has the authority under state law to approve or deny a charter school application. Id . § 17:3983(A)(3)(c). Case: 18-31099 Document: 00515175015 Page: 2 Date Filed: 10/25/2019No. 18

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3 including the use of corporal punishment, “on national television while repre

senting herself as an educator.” Applying six norms used by the National Policy Board for Educational Administration, 3 Transcendent Legal exam ined Clarkston’s pro fessionalism. It concluded that she exceeded expectations for one of the pro fessional norms, met expectations for two, and failed to meet expectations for three. Transcen

dent Legal recognized that “[w]ithout question, Mrs. Clark ston’s deficiencies in any given norm resulted solely from Mrs. Clarkston’s de cision to participate in the reality show Supernanny and/or the related pub li cizing of her partici pa tion in that television show just three (3) short years ago. ”
In Ma rch 2016, after reviewing the evaluation s of the School Board, SchoolWorks, and Transcendent Legal, the LDOE

— through White

— again recommended that the BESE deny p laintiffs ’ application. Highlighting that Transcendent Legal’s “report provide[d] mixed conclu sions regarding the pro

fessional 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 eviden ce of issues that should give BESE pause before authorizing the charter under the proposed leadership

. ” After hearing from the LDOE , the BESE denied p laintiffs’ application.

3 The standards asked whether Clarkston: (1) “act[ed] professionally in personal con

duct, 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 continuou s 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, s ocial 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 facu lty and staff.” Case: 18-31099 Document: 00515175015 Page: 3 Date Filed: 10/25/2019No. 18

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4 Both side s now agree that the BESE was the ultimate decisionmaker.
P laintiffs brought claims for retaliation, alleging violations of the First and Fourteenth Amendments and a rticle I, section 7 of the Louisiana Consti

tution. 4 P laintiffs contended that White took “action against the Plaintiffs because he disagreed with op inions expressed by Mrs. Clarkston on a national television show, ‘America’s Supernanny,’ in 2013 regarding corporal punish

ment of her own children.” They also contended that “White’s opinion and rec

om mendation 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
p laintiffs’ claims with prej udice , 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 offi

cial who did not possess final decisionmaking authority. The district court did not reach the QI inquiry, but this court may affirm for any reason sup ported by the record, even if not relied on by the district court. Palmer v. Waxa hachie

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 .” L A

. C ONST

. 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, i f “summary judg ment 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. Case: 18-31099 Document: 00515175015 Page: 4 Date Filed: 10/25/2019No. 18

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5 Indep. Sch. Dist. , 579 F.3d 502, 506 (5th Cir. 200 9 ).

A. G overnment 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 circum

stances 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 persua

sive authority

— that defines the contours of the right in question with a high degree of particularity.” Id . (internal quota tion 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 offic ial’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. Case: 18-31099 Document: 00515175015 Page: 5 Date Filed: 10/25/2019No. 18

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6 At the time White allegedly violated p laintiffs’ 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 B ecause 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 cas elaw 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 estab lished in this circuit whether [non

- final decisionmakers] may be held personally liable for First Amendment retaliation under § 1983.”). Case: 18-31099 Document: 00515175015 Page: 6 Date Filed: 10/25/2019