United States Court of Appeals 

for the Fifth Circuit 

No. 21-20625 

Bronson McClelland, 

Plaintiff–Appellant,

versus

Katy Independent School District; Kenneth Gregorski;

Justin Graham; Henry Gaw; Robert Keith Meier; Ken 

Tabor; Stephanie Fulgencio; Katy Independent School 

District Police Department; KISD Board of Trustees;

Gary Joseph; Joan McPherson; Courtney Doyle; Ashley 

Vann; Ashly Darnell; Leslie Haack; Rick Hull, 

Defendants–Appellees.

Appeal from the United States District Court 

for the Southern District of Texas 

Civil Action No. 4:21-cv-00520 

Before Wiener, Higginson, and Wilson, Circuit Judges.

Jacques L. Wiener, Jr., Circuit Judge:

Plaintiff-Appellant Bronson McClelland appeals the district court’s 

dismissal of his (1) 42 U.S.C. § 1983 claims against Defendants-Appellees on 

the basis of qualified and sovereign immunity; (2) overbreadth and void-forvagueness claims; and (3) substantive and procedural due process claims. We 

AFFIRM.

United States Court of Appeals 

Fifth Circuit 

FILED 

March 31, 2023 

Lyle W. Cayce 

Clerk 

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I. BACKGROUND

A. The Snapchat Video Incident 

On October 3, 2019, following a particularly heated football game 

between Katy High School (“KHS”) and Tompkins High School, PlaintiffAppellant Bronson McClelland sent a video to Jose Hernandez. At the time, 

McClelland was a student at KHS and the starting quarterback of its football 

team. Hernandez was a student at Tompkins High School but not on its 

football team. After that game, McClelland, Hernandez, and other students 

gathered at an off-campus Whataburger restaurant and taunted each other in 

person and digitally via the Snapchat social media platform.1

 While outside 

of the restaurant, McClelland recorded and sent a three-second video to 

Hernandez via Snapchat wherein McClelland stated, “[We’ll] put your 

mother[ ]cking ass in the hospital, n[ ]gga’. What the f[ ]ck.” Hernandez 

recorded that video using his phone, then sent it to several friends. Tunmise 

Adeleye, a Black student and football player at Tompkins High School, 

received the video and posted it to his personal Twitter page, so that it 

allegedly appeared that he received it directly from McClelland. The video 

quickly circulated and began attracting media attention. 

The next day, McClelland and his parents met with DefendantsAppellees Rick Hull, KHS’s Principal, and Gary Joseph, the KHS football 

coach. Hull and Joseph determined that McClelland would be suspended for 

two games and would immediately cease to be team captain. After that 

meeting, McClelland posted an apology on his personal Twitter account, 

explaining that he had been stripped of his captain position and suspended 

for two games. Within hours of this post, Hull and Joseph allegedly contacted 

McClelland’s father and demanded that McClelland remove the apology or 

1

 Snapchat allows users to share images and videos with their other “friends” on 

the Snapchat platform. The photos and videos typically disappear after recipients have 

viewed them. 

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revise it to state that McClelland had been “suspended indefinitely.” 

McClelland alleges that Hull demanded the retraction because he did not 

want it to appear as though KISD had “rushed the investigation.” 

Defendant-appellee Katy Independent School District (“KISD”) then 

released its own statement about the incident, explaining that “a KHS 

student-athlete posted a video of himself on social media in which he used 

racially charged language to taunt a student-athlete on the opposing team.” 

KISD’s statement also said that “[t]he student responsible will face 

disciplinary consequences in accordance with the Katy ISD Discipline 

Management Student Code of Conduct and Athletic Code of Conduct.” 

McClelland alleges that KISD “promoted the false-narrative that 

Plaintiff was a racist” because KISD had full knowledge that McClelland did 

not send the video directly to a Black student or to a student on the opposing 

football team. McClelland also alleges that several days after the incident, in 

early October 2019, Joseph held a team meeting during which he admitted 

that he had previously tolerated the use of the N-word, but then announced 

a new rule prohibiting the use of that word. McClelland and his parents 

requested that KISD rescind or correct its public statement, but it refused to 

do so. McClelland claims that, as a result of this refusal, the NCAA 

recruitment efforts were suspended. In the months following the incident, 

McClelland and KISD corresponded back and forth in efforts to resolve the 

fallout from the alleged false statement. McClelland informed KISD that he 

would pursue legal remedies if the matter remained unresolved after 

September 18, 2020. 

B. The Vehicle Search 

On September 17, 2020, a canine unit with the KISD Police 

Department identified McClelland’s car in an allegedly random search of 

KHS’s parking lot. Defendant-appellee Officer Stephanie Fulgencio 

commenced a search and located .04 grams of a “green leafy substance” on 

the rear floor mat of the vehicle. Fulgencio summoned McClelland to the 

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vehicle, where McClelland explained that he and his brother shared the 

vehicle. McClelland also denied ownership, knowledge, or possession of the 

presence and the nature of the green leafy substance. Before any testing was 

done to confirm the nature and quantity of the substance, defendant-appellee 

Assistant Principal Ashly Darnell, acting on behalf of KHS and KISD, 

charged McClelland with possession of marijuana under the Texas Health & 

Safety Code. 

On September 18, 2020, Hull held a disciplinary hearing during which 

Fulgencio stated that an “unusable amount” of the green leafy substance was 

found and would need to be tested for its tetrahydrocannabinol 

concentration. Three days later, Fulgencio confirmed that the substance was 

marijuana, and she and the KISD Police Department Assistant Chief Kevin 

Tabor (also a defendant-appellee) issued a supplemental police report 

reflecting this. McClelland was suspended for three days and placed in the 

Disciplinary Alternative Education Program (“DAEP”) for forty-five days. 

McClelland alleges that Fulgencio and Tabor falsified their supplemental 

report because the substance had only been tested for the existence of 

marijuana but not for its potency, which is required to establish that it 

exceeded the legal threshold for marijuana. 

Soon afterwards, McClelland sought to transfer out of the school 

district. He also challenged his DAEP placement through an appeal to KISD. 

McClelland and KISD eventually agreed to resolve the dispute and entered 

into a settlement agreement (the “Settlement”) on September 29, 2020. The 

Settlement contained a “complete and general release of claims by 

[McClelland’s] family” and a covenant not to sue, which would not be 

binding on McClelland if he were (1) denied admission to a transfer school or 

(2) not cleared by California regulations to participate in varsity sports 

because of the events at issue. The Settlement further provided that if 

McClelland were to enroll in KISD in the future, the disciplinary abatement 

would be null and void, and he would still be required to complete his time in 

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the DAEP. The Settlement also required KISD to prepare forms stating that 

McClelland was not subject to discipline for the marijuana-related incident. 

KISD Superintendent (and a defendant-appellee) Dr. Ken Gregorski issued 

an official letter which stated that (1) McClelland did not intend to possess 

the substance on campus and (2) McClelland’s brother had come forward 

and admitted to possessing the substance found in their shared vehicle. 

After the Settlement was executed, McClelland attempted to transfer 

to a high school in California and then to Manor Senior High School in Texas. 

McClelland alleges that KISD provided erroneous transcripts to the 

California school which prevented him from transferring there. McClelland 

then enrolled at Manor High School but could not get his varsity sports 

eligibility reinstated because of various residency requirements. McClelland 

reenrolled at KHS on October 29, 2020. On McClelland’s return, Gregorski, 

Hull, and Justin Graham initiated an additional appeal concerning the 

marijuana offense. The three-member appeals panel determined that 

McClelland had violated the Texas Health & Safety Code for possession of 

marijuana. As a result, McClelland was placed back into the DAEP, 

preventing him from returning to KHS or its football team. 

II. PROCEDURAL HISTORY

In January 2021, McClelland sued Forensic Laboratory, Inc., KHS, 

the KISD Police Department, the KISD Board of Trustees (“KISD Board”), 

and a number of KHS, KISD, and KISD Police Department employees in 

their individual and official capacities. That suit was filed in the state district 

court in Fort Bend County, Texas. McClelland alleged (1) violations of 42 

U.S.C. § 1983; (2) violations of his procedural and substantive due process 

rights; and (3) various state law claims, including defamation, spoliation, and 

civil conspiracy. The case was removed to the Southern District of Texas on 

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February 17, 2021. After limited motions practice, Defendants-Appellees2

filed a motion to dismiss all claims under Rule 12(b)(6) and to dismiss some 

claims under Rule 12(b)(1). 

In a twenty-seven-page Memorandum and Order issued on November 

1, 2021, the district court granted Defendants-Appellees’ motion to dismiss 

and denied several other pending motions.3

 Without fully reaching the merits 

of McClelland’s First Amendment claims, the district court held that each 

defendant-appellee was entitled to either qualified or sovereign immunity. 

The court explained that McClelland’s First Amendment rights were not 

clearly established at the time of the Snapchat incident because “there was 

no general rule that could have placed Defendants on notice that it would be 

unconstitutional to discipline Mr. McClelland for his off-campus speech.” 

The court further held that McClelland failed to state a claim for municipal 

liability because he did not “sufficiently connect the policymaker—here, the 

KISD Board—to the allegedly unconstitutional policy.” 

The district court also ruled that McClelland failed to state a void-forvagueness claim because he did not show that he was deprived of a protected 

property right or liberty interest. The court further held that McClelland 

failed to show that his procedural and substantive due process rights were 

violated in connection with the discipline he received for possessing 

marijuana and to state an overbreadth claim because he could not point to 

other examples of conduct that would be unconstitutional under the Athletic 

2

 The moving parties comprised a smaller group than was originally sued. The 

movants (now Defendants-Appellees) included: KISD, KHS, Gregorski, Graham, Gaw, 

Meier, Tabor, Fulgencio, KISD Police Department, KISD Board, Joseph, McPherson, 

Doyle, Vann, Darnell, Haack, and Hull. Their motion to dismiss was supplemented shortly 

after filing to add KHS, which had been omitted inadvertently.

3

 The other pending motions were (1) Defendants-Appellees’ motion to quash 

deposition notices; (2) McClelland’s motion to unseal the motions to quash deposition 

notices; and (3) McClelland’s motion to strike Defendants-Appellees’ affirmative defense. 

Only Defendants-Appellees’ motion to dismiss is at issue in this appeal. 

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Code of Conduct. Finally, the district court declined to exercise 

supplemental jurisdiction over McClelland’s state law claims and dismissed 

them without prejudice. McClelland timely appealed. 

III. STANDARD OF REVIEW

We review a motion to dismiss de novo, accepting all well-pleaded facts 

as true and drawing all inferences in favor of the plaintiff.4

 “To survive a 

motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’”5

 The 

district court is limited to the contents of the pleadings, including any 

attachments.6

 Conclusional allegations, naked assertions, and “a formulaic 

recitation of a cause of action’s elements will not do.”7

 When the defense of 

qualified immunity is raised in a motion to dismiss, “the [trial] court has an 

‘obligation . . . to carefully scrutinize [the complaint] before subjecting public 

officials to the burdens of broad-reaching discovery.’”8

 

IV. ANALYSIS

McClelland contends that the district court erred by dismissing his 

free-speech related § 1983 claims on the basis of qualified immunity because 

(1) Hull’s regulation of McClelland’s off-campus speech was 

unconstitutional; (2) McClelland’s free speech rights were clearly 

established at all relevant times; and (3) McClelland sufficiently pleaded 

Monell liability. McClelland also asserts that the district court erroneously 

dismissed his claims for vagueness and due process violations because he 

4 Marks v. Hudson, 933 F.3d 481, 485 (5th Cir. 2019). 

5 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2007)). 

6 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000). 

7 Bell, 550 U.S. at 555. 

8 Longoria Next Friend of M.L. v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258, 

263–64 (5th Cir. 2019) (quoting Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir. 1986)). 

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pleaded facts demonstrating that he was deprived of specific property and 

liberty interests as a result of Defendants-Appellees’ conduct. Finally, 

McClelland alleges that the district court erred in ruling that he had not 

stated a remediable overbreadth claim since he pleaded facts showing that 

“third parties would be damaged by [KISD’s] broad-sweeping regulations.” 

A. McClelland’s First Amendment claims arising under 42 

U.S.C. § 1983 

“To state a claim under 42 U.S.C. § 1983, a plaintiff must first show 

a violation of the Constitution or of federal law, and then show that the 

violation was committed by someone acting under color of state law.”9

However, “[t]he doctrine of qualified immunity protects government 

officials from civil damages liability when their actions could reasonably have 

been believed to be legal.”10 Once the defense of qualified immunity has been 

raised, the plaintiff has the burden of demonstrating that “(1) the official 

violated a statutory or constitutional right, and (2) the right was ‘clearly 

established’ at the time.”11 Courts may decide “which of the two prongs of 

the qualified immunity analysis should be addressed first in light of the 

circumstances in the particular case at hand.”12 Once a court determines that 

the right asserted was not clearly established, it need not reach the more 

difficult constitutional question.13 

9 Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir. 2005), abrogated on 

other grounds, Delaughter v. Woodall, 909 F.3d 130 (5th Cir. 2018) (citations omitted). 

10 Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).

11 Benfield v. Magee, 945 F.3d 333, 337 (5th Cir. 2019) (quoting Morgan, 659 F.3d at 

371)). 

12 Pearson v. Callahan, 555 U.S. 223, 236 (2009). 

13 Id. at 242; see also Camreta v. Greene, 563 U.S. 692, 707 (2011) (recognizing that 

“courts should think hard, and then think hard again, before turning small cases into large 

ones”); Morgan, 659 F.3d at 384 (“Because we have granted immunity to the [defendants] 

at step two of the qualified-immunity analysis, it is within our discretion to decline entirely 

to address the constitutionality of the defendants’ conduct.”). 

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i. Overview of First Amendment free speech jurisprudence 

In 1969, the Supreme Court solidified public students’ free speech 

rights in Tinker v. Des Moines Independent Commission School District.

14 The 

Court protected such students’ right to engage in passive protests of the 

Vietnam War with black armbands, declaring that students do not “shed 

their constitutional rights to freedom of speech or expression at the 

schoolhouse gate.”15 The Court cautioned that public students’ free speech 

is not without limits, however, because of the “special characteristics of the 

school environment.”16 The Court held that schools have a special interest 

in regulating student conduct which “materially disrupts classwork or 

involves substantial disorder or invasion of the rights of others.”17 To satisfy 

this standard, schools must demonstrate that the speech in question actually 

caused, or may reasonably be forecast to cause, a “substantial disruption of 

or material interference with school activities.”18 In arriving at this decision, 

the Court balanced the students’ freedom of expression against the need to 

maintain a safe, effective learning environment.19 

Since Tinker was decided, the Supreme Court has recognized three 

narrow exceptions to the substantial disruption/material interference

standard based on specific contents of student speech.20 These exceptions 

cover (1) “indecent,” “lewd,” or “vulgar” speech uttered during a school 

assembly on school grounds;21 (2) speech that promotes “illegal drug use” at 

14 393 U.S. 503 (1969). 

15 Id. at 506. 

16 Id. at 506, 512–13. 

17 Id. at 513. 

18 Id. at 514. 

19 Id. 

20 Bell v. Itawamba Cty. Sch. Bd., 799 F.3d 379, 390 (5th Cir. 2015) (en banc).

21 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 275, 683 (1986). 

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a school-sponsored event;22 and (3) speech that others may reasonably 

perceive as “bear[ing] the imprimatur of the school,” such as speech in a 

school-sponsored newspaper.23 In all three cases, the Court affirmed the 

schools’ right to censor the speech at issue without providing a forecast of 

substantial disruption.24 In justifying these carveouts, the Court explained 

that “the constitutional rights of students in public school are not 

automatically coextensive with the rights of adults in other settings.”25 

The Supreme Court more recently offered guidance for off-campus 

speech in its June 2021 decision in Mahanoy Area School District v. B.L. ex rel 

Levy.

26 In that case, the Court held that a disgruntled cheerleader’s offcampus Snapchat posts, which stated “F[ ]ck school f[ ]ck softball f[ ]ck 

cheer f[ ]ck everything,” were constitutionally-protected speech.27 The 

Court explained that there are “three features of off-campus speech” which 

“diminish the strength of the unique educational characteristics that might 

call for special First Amendment leeway.”28 These features are: (1) “a 

school, in relation to off-campus speech, will rarely stand in loco parentis”; 

(2) “regulations of off-campus speech, when coupled with regulations of oncampus speech, include all the speech a student utters during the full 24-hour 

day”; and (3) “the school itself has an interest in protecting a student’s 

unpopular expression, especially when the expression takes place off 

campus.”29 The Court declined to adopt a bright line rule or test to 

22 Morse v. Frederick, 551 U.S. 393, 409 (2007). 

23 Hazelwood v. Kuhlmeier, 484 U.S. 260, 271 (1988). 

24 Morse, 551 U.S. at 409; Hazelwood, 484 U.S. at 271; Fraser, 478 U.S. at 683. 

25 Morse, 551 U.S. at 396–97 (quoting Fraser, 478 U.S. at 682). 

26 141 S. Ct. 2038 (2021). 

27 Id. at 2043. 

28 Id. at 2046. 

29 Id.

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distinguish protected versus unprotected off-campus speech, noting that 

“[w]e leave for future cases to decide where, when, and how these features 

mean the speaker’s off-campus location will make the critical difference.”30

In the decades since Tinker, this court has grappled with whether—

and to what extent—Tinker applies to off-campus speech. The ubiquity of 

social media has blurred the lines between off- and on-campus speech, 

causing increased difficulty for schools and parents alike. We have addressed 

the reach of Tinker to off-campus speech in three key cases: Porter v. Ascension 

Parish School Board31 (2004); Bell v. Itawamba County School Board32 (2015); 

and Longoria ex rel M.L. v. San Benito Independent Consolidated School 

District33 (2019). 

In Porter, we applied Tinker to the disciplinary action taken for a 

sketch drawn off-campus depicting a violent siege of a school.34 The sketch 

was drawn by a former student at his home and was inadvertently brought to 

campus by his younger brother two years later, where it was discovered by 

school officials.35 As a result, the younger brother was suspended, and the 

older brother was summoned to the office of his high school’s resource 

officer, where a search of his bookbag revealed a box cutter, a fake ID, and 

notebooks containing disturbing depictions.36 The high school officials 

recommended expulsion, and the older brother was jailed for four days for 

“terrorizing the school and carrying an illegal weapon.” This court held that 

the sketch was constitutionally-protected because it was: (1) created and 

30 Id. 

31 393 F.3d 608, 618 (5th Cir. 2004). 

32 799 F.3d 379 at 401–02. 

33 942 F.3d 258, 264 (5th Cir. 2019). 

34 393 F.3d at 611, 619. 

35 Id. at 611–12. 

36 Id. at 612. 

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stored off-campus, (2) displayed only to the artist’s family members, and (3) 

not intentionally taken on-campus or “publicized in a way certain to result in 

its appearance” at the school.37 We also held that the school principal was 

entitled to qualified immunity, concluding that Porter’s free speech rights 

had not been clearly established at the time of the incident, given the 

“unsettled nature of First Amendment law as applied to off-campus student 

speech inadvertently brought on campus by others.”38 This court went on to 

note that, even if Porter’s rights were clearly established during the relevant 

timeframe, the principal’s determination was objectively reasonable.39 We 

explained that “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.”40

In Bell, this circuit held, en banc, that Tinker definitively applied to 

off-campus speech directed at the school community.41 Bell involved a 

student who created and posted a rap video to his personal Facebook and 

YouTube pages while he was off-campus, resulting in his suspension.42 The 

video contained threats, profanity, and intimidating language directed at two 

teachers in the student’s school.43 Qualified immunity was not contested on 

appeal, so we only examined whether the student’s speech was 

constitutionally protected.44 In applying Tinker’s “substantial disruption” 

test, this court focused on the nexus between the speech in question and the 

37 Id. at 620. 

38 Id. 

39 Id. at 621. 

40 Id. 

41 799 F.3d at 383. 

42 Id. at 383–84. 

43 Id. at 384. 

44 Id. at 389. 

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school community.45 Concluding that the student had intentionally directed 

the video at the school community, we held that “a school official reasonably 

could find Bell’s rap recording threatened, harassed, and intimidated the two 

teachers; and a substantial disruption reasonably could have been forecast, as 

a matter of law.”46 We further noted that the school’s Administrative Policy 

“demonstrates an awareness of Tinker’ssubstantial-disruption standard, and 

the policy’s violation can be used as evidence supporting the reasonable 

forecast of a future substantial disruption.”47 We acknowledged that our 

“precedent is less developed” regarding off-campus speech, but declined to 

adopt a specific rule to apply moving forward.48

Recently, in Longoria, this circuit decided an off-campus speech 

dispute on the basis of qualified immunity.49 Longoria involved a former head 

varsity cheerleader who was disciplined by her school for posting profanity 

and sexual innuendo on her personal Twitter account.50 The cheerleader 

asserted that her Tweets were constitutionally protected because they were 

posted off-campus and were not directed at the school community.51 We first 

analyzed whether the cheerleader’s free speech rights were clearly 

established during the relevant timeframe.52 Recognizing that we had 

recently declined to adopt a “specific rule” applicable to all off-campus 

speech, this court held that the cheerleader’s First Amendment rights were 

45 Id. 

46 Id. at 391. 

47 Id. at 399. 

48 Id. at 394. 

49 942 F.3d at 261. 

50 Id. 

51 Id. at 264. 

52 Id. at 265. 

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not clearly established.53 We chose to forego the constitutional-violation 

inquiry, holding that the school officials were entitled to qualified 

immunity.54 Referencing Bell, this court noted that “the ‘pervasive and 

omnipresent nature of the internet’” raises difficult questions about what it 

means for a student using social media to direct his or her speech towards the 

school community.55 We further explained that “a more defined rule will be 

left for another day.”56 

ii. Qualified Immunity as to Hull 

In this appeal, McClelland contends that the district court erred in 

holding that Hull, KHS’s principal during the relevant timeframe, was 

entitled to qualified immunity. Citing no case law in support, McClelland 

alleges that his First Amendment rights were clearly established at the time 

of the Snapchat incident. McClelland further asserts that the district court 

incorrectly based its qualified immunity analysis on whether the violation of 

McClelland’s rights was based on the Athletic Code of Conduct (“ACC”). 

McClelland contends that, in doing so, the district court “overlooked the 

plainly alleged and pleaded violations of the First Amendment in retaliation 

and compelled speech.” 

1. Whether McClelland’s free speech rights were clearly 

established 

“A Government official’s conduct violates clearly established law 

when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] 

sufficiently clear’ that every ‘reasonable official would [have understood] 

53 Id. at 267. 

54 Id. at 270–71. 

55 Id. at 269–70 (quoting Bell, 799 F.3d at 395, 403). 

56 Id. 

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that what he is doing violates that right.’”57 Courts “do not require a case 

directly on point,” but school officials are entitled to qualified immunity 

unless “existing precedent . . . placed the statutory or constitutional question 

beyond debate.”58 In other words, if “insufficient precedent existed to 

provide school officials with ‘fair warning’ that the defendants’ conduct 

violated the First Amendment,” the rights were not clearly established.59 

Here, the district court first analyzed whether McClelland’s First 

Amendment free speech rights were clearly established at the time of the 

Snapchat incident. That court reviewed relevant First Amendment 

jurisprudence and concluded that the Supreme Court and the Fifth Circuit 

had not clearly demarcated the limits of off-campus speech regulation. 

Quoting Longoria, the district court noted that “the Fifth Circuit’s cases 

have ‘failed to clarify the law governing school officials’ actions in 

disciplining off-campus speech.’”60 The district court concluded that “there 

was no general rule that could have placed Defendants on notice that it would 

be unconstitutional to discipline Mr. McClelland for his off-campus speech.” 

Specifically, the court held that there was no clearly established rule stating 

that discipline for a “threat of violence apparently stated in jest” is 

unconstitutional. The district court went on to hold that the individual 

Defendants-Appellees were entitled to qualified immunity and did not reach 

the merits of whether McClelland’s free speech rights were violated.61 

57 Ashcroft, 563 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 

(1987)). 

58 Id. 

59 Jackson v. Ladner, 626 F. App’x 80, 89 (5th Cir. 2015). 

60 (quoting Longoria, 942 F.3d at 267). 

61 The district court did not address whether the individual Defendants-Appellees 

were entitled to qualified immunity as to McClelland’s First Amendment compelled 

speech and retaliation claims. This is because McClelland abandoned these claims by 

failing to defend them in his opposition to the motion to dismiss, which is discussed further 

below. 

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The district court correctly concluded that there is no clearly 

established rule that could have placed Hull on notice that disciplining 

McClelland for his off-campus speech was unconstitutional. Our developing 

jurisprudence has not yet resulted in a rule that would have given fair warning 

to Hull and to “every ‘reasonable official’”62 in Hull’s position that 

suspending McClelland for his video was unconstitutional. Even Mahanoy, 

which was decided after the underlying incidents here, offers little assistance. 

In Mahanoy, the Supreme Court held that “[w]e leave for future cases to 

decide where, when, and how these features mean the speaker’s off-campus 

location will make the critical difference.”63 Here, McClelland’s free speech 

rights at the time of the Snapchat incident were not clearly established so as 

to defeat qualified immunity for Hull. 

2. Whether McClelland’s speech was constitutionallyprotected 

The district court ended its qualified immunity analysis after 

concluding that McClelland’s free speech rights were not clearly established 

in relation to the Snapchat incident. As discussed above, it is entirely within 

the district court’s discretion to forego the constitutionality question after 

concluding that the rights at issue are not clearly established.64 The district 

court did not err in choosing to forego the constitutional inquiry. 

This court too may forego the more difficult constitutional inquiry. 

When the Supreme Court relaxed its strict adherence to the two-part 

qualified immunity protocol, it noted that engaging in the constitutional 

62 Ashcroft, 563 U.S. at 741 (quoting Anderson, 483 U.S. at 640); see also Longoria, 

942 F.3d at 269–70. 

63 141 S. Ct. at 2046.

64 See, e.g., Pearson, 555 U.S. at 241; Camreta, 563 U.S. at 707; Morgan, 659 F.3d at 

384. 

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inquiry may be advantageous in some situations and detrimental in others.65

For example, it is helpful in the development of constitutional precedent and 

“especially valuable for questions that do not frequently arise in cases in 

which a qualified immunity defense is unavailable.”66 At the pleading stage, 

however, this inquiry “may create a risk of bad decisionmaking,”67 since “the 

answer to whether there was a violation may depend on a kaleidoscope of 

facts not yet fully developed.”68 In Longoria, for example, we chose to forego 

the constitutional question altogether after determining that the student’s 

rights were not clearly established.69 Longoria also involved the review of a 

motion to dismiss. 

Here, the district court’s determination of qualified immunity as to 

defendant-appellee Hull was sound. This court will not engage in the 

constitutional inquiry because (1) it is evident that McClelland’s free speech 

rights were not clearly established at the time of the incident; and (2) the 

underlying case was disposed of at the motion-to-dismiss stage, before the 

facts were developed. 

3. McClelland’s First Amendment retaliation and 

compelled speech claims against Hull 

McClelland correctly points out that the district court did not examine 

his First Amendment retaliation and compelled speech claims in its 

memorandum and order dismissing this case. Defendants-Appellees contend 

that McClelland abandoned these claims by failing to defend or reassert them 

in his opposition to the motion to dismiss and subsequent briefing. In fact, 

McClelland did not defend or clearly mention these claims in his opposition 

65 Pearson, 555 U.S. at 239–40. 

66 Id. at 236. 

67 Id. at 239. 

68 Id. (quoting Dirrane v. Brookline Police Dep't, 315 F.3d 65, 70 (1st Cir. 2002)). 

69 942 F.3d at 265. 

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to the motion to dismiss, his supplemental reply regarding qualified 

immunity, or his motion to alter or amend the district court’s judgment. 

McClelland asserts that he never abandoned these claims, and that he did not 

brief them in his response to the motion to dismiss because DefendantsAppellees only alluded to them in their motion to dismiss. However, in their 

motion to dismiss, Defendants-Appellees clearly stated that they were 

“mov[ing] to dismiss all of Plaintiff’s claims” and even listed “free speech 

retaliation” as one of those claims. 

This circuit’s well-settled precedent instructs that a party abandons a 

claim by failing to defend it in response to motions to dismiss and other 

dispositive pleadings.70 Here, McClelland failed to defend or reassert his 

retaliation and compelled speech claims on three separate occasions prior to 

this appeal. Defendants-Appellees moved to dismiss all claims, and the 

district court dismissed all claims in its judgment. McClelland thus 

abandoned his First Amendment retaliation and compelled speech claims on 

appeal. 

iii. Sovereign Immunity as to the KISD Board 

Under 42 U.S.C. § 1983, municipalities cannot be held vicariously 

liable for the acts of their employees unless the plaintiff’s allegations satisfy 

particular requirements.71 In Monell v. Department of Social Services, the 

Supreme Court held that a plaintiff asserting municipal, or “Monell,” liability 

must demonstrate that “(1) an official policy (2) promulgated by the 

municipal policymaker (3) was the moving force behind the violation of a 

70 See, e.g., Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) 

(plaintiff abandoned claim by failing to defend it in response to motion to dismiss); Magee 

v. Life Ins. Co. of N. Am., 261 F. Supp. 2d 738, 748 n.10 (S.D. Tex. 2003) (“The Fifth 

Circuit makes it clear that when a party does not address an issue in his brief to the district 

court, that failure constitutes waiver on appeal.”); Vela v. City of Houston, 276 F.3d 659, 

679 (5th Cir. 2001) (defendant abandoned limitations defense by failing to raise it in 

summary judgment response).

71 Monell v. Dept. Soc. Servs. Of City of New York, 436 U.S. 658, 691 (1978). 

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constitutional right.”72 Since “the identity of the policymaker is a question 

of law . . . a plaintiff is not required to single out the specific policymaker in 

his complaint.”73 The “plaintiff need only plead facts that show that the 

defendant or defendants acted pursuant to a specific official policy, which 

was promulgated or ratified by the legally authorized policymaker.”74 Here, 

the parties agree that Texas law establishes the KISD Board as KISD’s final 

policymaker.75

McClelland argues that he sufficiently pleaded Monell liability because 

he alleged facts that allowed the district court “to reasonably infer that the 

Board either (1) adopted policy that caused injury or (2) delegated to a 

subordinate officer authority to adopt such a policy.” McClelland contends 

that, by adopting the ACC, the KISD Board “was directly involved” in 

violating his constitutional rights. He points out that, at the motion-todismiss stage, he only needed to plead that the ACC was ratified or 

promulgated by the KISD Board. Finally, McClelland asserts that he pleaded 

facts demonstrating that KISD’s public announcement “was signed by Katy 

ISD and announced that discipline to be meted out was due to official policy”

of the KISD Board. He thus contends that the district court erred in holding 

that the KISD Board was entitled to sovereign immunity. 

The district court analyzed whether the KISD Board could be held 

liable vicariously for the acts of the individual Defendants-Appellees under

Monell. That court examined the first and second prongs of Monell, looking 

for “facts that sufficiently connect the policy maker—here, the Board of 

72 Hicks-Fields v. Harris Cnty., 860 F.3d 803, 808 (5th Cir. 2017) (quoting Peterson 

v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009)). 

73 Groden v. City of Dallas, Texas, 826 F.3d 280, 282 (5th Cir. 2016). 

74 Id. 

75 City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (explaining that “whether 

a particular official has ‘final policymaking authority’ is a question of state law”) (internal 

citation omitted). 

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Trustees—to the allegedly unconstitutional policy,” and concluded that 

McClelland had not pleaded facts connecting the KISD Board to the alleged 

violations of his First Amendment rights. Citing Longoria, the district court 

explained that McClelland did not plead facts demonstrating that the KISD 

Board had delegated policymaking authority to the individual DefendantsAppellees, who were, at best, “decisionmakers.” The court explained that 

McClelland’s allegations “fail to meet the requirement that Defendants 

themselves exercise policymaking authority.” 

The district court correctly concluded that the KISD Board cannot be 

held liable vicariously for the individual Defendants-Appellees’ actions. 

Monell instructs district courts to examine whether the policymaker either 

adopted an injury-causing policy or delegated the authority to adopt such a 

policy.76 The policy at issue here is the ACC, a copy of which was attached 

to McClelland’s complaint. McClelland did not allege facts demonstrating 

that the KISD Board had ratified the ACC, and the ACC itself does not 

indicate that it was ratified by the Board. In fact, the ACC appears to 

distinguish itself from “the board-approved Discipline Management Plan and 

Student Code of Conduct.” McClelland has also failed to show that KISD’s 

signature on its October 4, 2019 announcement constituted ratification or 

delegation. That announcement simply stated that a student would face 

consequences pursuant to the ACC and the Katy ISD Discipline 

Management Student Code of Conduct. McClelland did not allege any other 

facts that show the KISD Board had delegated policymaking authority to the 

individual Defendants-Appellees in connection with the disciplinary action. 

Therefore, McClelland has not shown that the KISD Board promulgated a 

policy that caused injury, so the KISD Board cannot be held liable for 

violations of McClelland’s free speech under Monell. 

76 Groden, 826 F.3d at 286. 

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B. McClelland’s constitutional overbreadth claim 

“A regulation is constitutionally overbroad if it (1) prohibits a 

substantial amount of constitutionally-protected freedoms, when judged in 

relation to the regulation’s ‘plainly legitimate sweep’ . . . and (2) is not 

susceptible to a limiting construction that avoids constitutional problems.”77

The overbreadth doctrine recognizes that “a broadly-written statute may 

have such a deterrent effect on free expression that it should be subject to a 

facial challenge even by a party whose own conduct may be unprotected.”78

In other words, that doctrine “enables a plaintiff to challenge a statute where 

it infringes on third parties who are not parties to the action.”79 However, an 

overbreadth claim is “not permitted where a party raises only situations that 

are essentially coterminous with their own conduct.”80 

McClelland asserts that particular provisions of the ACC are 

overbroad in violation of the First Amendment. McClelland points out that 

the ACC requires student athletes “to display/model behaviors associated 

with positive leaders both in the school and in the community” and “exhibit 

good citizenship at all times.” Citing Mahanoy, McClelland takes issue with 

the fact that these provisions pertain to both on- and off-campus conduct. 

McClelland alleges that another student-athlete could find himself in the 

same disciplinary situation, “even if that student-athlete engaged in other 

activities (i.e. not using a racially-charged term).” McClelland concludes that 

77 Chalifoux v. New Caney Indep. Sch. Dist., 976 F. Supp. 659, 669 (S.D. Tex. 1997) 

(citing Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973); Board of Airport Comm’rs v. Jews 

for Jesus, Inc., 482 U.S. 569, 574 (1987)). 

78 Int’l Soc. for Krishna Consciousness of New Orleans, Inc. v. City of Baton Rouge, 876 

F.2d 494, 499 (5th Cir. 1989); see also Broadrick, 413 U.S. at 612 (explaining that the 

overbreadth doctrine prohibits the government from banning unprotected speech if a 

substantial amount of protected speech would be chilled in the process). 

79 Chalifoux, 976 F. Supp. at 669. 

80 Seals v. McBee, 898 F.3d 587, 599 (5th Cir. 2018) (internal quotation marks and 

citation omitted). 

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“the possibility and potential for wide-sweeping and heavy-handed 

regulation of student-athlete’s speech outside the school doors is 

distressingly obvious.” 

The district court dismissed McClelland’s overbreadth claim, 

concluding that his allegations only “contain[] a general statement of the law 

on overbreadth challenges, untethered to the well-pleaded facts that could 

survive a Rule 12(b)(6) motion.” The district court stressed that McClelland 

failed to show that the rights of third parties would be threatened in situations 

that are different from his own. 

The district court correctly analyzed McClelland’s overbreadth claim 

and did not err in dismissing it. The Supreme Court has instructed that a 

plaintiff who asserts an overbreadth claim must show that a challenged policy 

prohibits a “broad range of protected conduct,” and that there must be “a 

realistic danger that the [policy] itself will significantly compromise 

recognized First Amendment protections of parties not before the Court.”81

McClelland has only shown that his own conduct (which is arguably 

unprotected) is prohibited by the ACC. Additionally, his second amended 

complaint is devoid of facts demonstrating that the ACC is so overreaching 

that it will infringe on other student-athletes’ free speech rights. His 

complaint only seeks a declaration that the ACC is “overbroad and 

constitute[s] viewpoint discrimination.” The district court did not err in 

dismissing McClelland’s overbreadth claim. 

C. McClelland’s void-for-vagueness claim

“A law is unconstitutionally vague if it (1) fails to provide those 

targeted by the statute a reasonable opportunity to know what conduct is 

prohibited, or (2) is so indefinite that it allows arbitrary and discriminatory 

81 City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796, 801 (1984). 

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enforcement.”82 This standard is heightened in the context of education, 

“[g]iven the school’s need to be able to impose disciplinary sanctions for a 

wide range of unanticipated conduct disruptive of the educational 

process.”83 A regulation is void for vagueness when it is so unclear that 

people “of common intelligence must necessarily guess at its meaning and 

differ as to its application.”84 This circuit’s precedent instructs that a facial 

challenge may only be sustained “if the enactment is impermissibly vague in 

all of its applications.”85 Since a void-for-vagueness challenge is ultimately a 

due-process claim,86 a plaintiff must allege that he was deprived of a 

constitutionally-protected property or liberty interest.87 

McClelland asserts that the ACC is void for vagueness because 

particular provisions “were unduly and unconstitutionally vague.” He 

specifically alleges that the provisions requiring student-athletes to “conduct 

[themselves] as gentlemen and ladies at all times”; “exhibit good citizenship 

at all times”; and “display/model behaviors associated with positive leaders 

both in the school and in the community” are unconstitutional. McClelland 

asserts that the district court erred by not analyzing the merits of vagueness, 

instead deciding this question on the existence of a protected property 

interest. 

The district court did not reach either the merits of vagueness or 

whether a facial challenge to the ACC could be sustained. Instead, that court 

82 A.M ex rel. McAllum v. Cash, 585 F.3d 214, 224–25 (5th Cir. 2009) (quoting 

Women's Med. Ctr. of N.W. Houston v. Bell, 248 F.3d 411, 421 (2001)).

83 Fraser, 478 U.S. at 676. 

84 Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). 

85 Home Depot, Inc. v. Guste, 773 F.2d 616, 627 (5th Cir. 1985) (quoting Vill. of 

Hoffman Ests. v. Flipside, 455 U.S. 489, 495 (1982)). 

86 Cash, 585 F.3d at 225. 

87 Longoria, 942 F.3d at 270 (citing City of Chicago v. Morales, 527 U.S. 41, 58 

(1999)). 

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analyzed whether McClelland had properly alleged the deprivation of 

protected property or liberty interests as a result of the ACC. The district 

court referenced Chalifoux v. New Caney Independent School District, which 

held that vagueness may only be invoked in the educational context when 

students “faced a potential deprivation of their property interests in 

attending a public school.”88 The district court concluded that McClelland 

had failed to state a claim for vagueness since “[n]either participation in 

football nor team captainship constitutes a property or liberty right of which 

Plaintiff was deprived.” 

The district court correctly analyzed McClelland’s void-forvagueness claim and did not err in dismissing it. It is well settled, in the 

educational context, that a plaintiff must allege a protected property interest. 

McClelland’s second amended complaint is devoid of any such allegations. 

And, even if he had alleged lack of participation on the football team or team 

captainship in connection with vagueness, he still would not prevail. This 

court has held that “[a] student’s interest in participating in a single year of 

interscholastic athletics amounts to a mere expectation rather than a 

constitutionally protected claim of entitlement.”89 

D. McClelland’s procedural and substantive due process 

claims 

The Fourteenth Amendment provides that state actors may not 

deprive “any person of life, liberty, or property without due process of 

law.”90 “The first inquiry in every due process challenge—whether 

procedural or substantive—is whether the plaintiff has been deprived of a 

protected interest in property or liberty.”91 Moreover, “[t]o have a property 

88 976 F. Supp. at 668. 

89 Walsh v. La. High Sch. Athletic Ass’n, 616 F.2d 152, 159 (5th Cir. 1980). 

90 U.S. CONST. AMEND. XIV. 

91 Edionwe v. Bailey, 860 F.3d 287, 292 (5th Cir. 2017). 

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interest in a benefit, a person clearly must have more than an abstract need 

or desire for it . . . [He] must, instead, have a legitimate claim of entitlement 

to it.”92

In his second amended complaint, McClelland alleged that KISD, 

Gregorski, Hull, and Graham violated his due process rights throughout the 

marijuana-related disciplinary process and his resulting placement in the 

DAEP. He now appeals the district court’s dismissal only as to KISD. 

McClelland asserts that KISD violated his due process rights by imposing 

discipline “without establishing the three required elements of the charged 

statute: usable quantity, intent to possess, and that the substance was 

properly tested, prior to imposing discipline, to be certain that the substance 

was legally marijuana as opposed to hemp.” McClelland claims that KISD’s 

“wrongful conviction” resulted in the destruction of his liberty interests. He 

also alleges that his due process rights were violated when KISD reinstated 

the discipline that it had imposed before he attempted to transfer schools. 

McClelland takes issue with the fact that the district court did not analyze 

the merits of his due process claims, instead basing its opinion on whether 

McClelland had alleged a deprivation of protected interests. 

We disagree with McClelland. The district court first analyzed 

whether he had sufficiently alleged deprivation of his property and liberty 

interests. In doing so, the court looked to Nevares v. San Marcos Consolidated 

Independent School District, in which this circuit held that a student’s 

placement in an alternative education program violated no protected 

property interest.93 The district court also relied on this circuit’s opinion in 

Doe v. Silsbee Independent School District, which held that students “do not 

possess a constitutionally protected interest in their participation in 

92 Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). 

93 111 F.3d 25, 26–27 (5th Cir. 1997). 

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extracurricular activities.”94 The district court concluded that this circuit’s 

well-settled precedent instructed against finding any violation of a protected 

property or liberty interest on the basis of McClelland’s placement in DAEP 

or his suspension from the football team. 

The district court did not err in dismissing McClelland’s substantive 

and procedural due process claims because McClelland did not allege the 

deprivation of his property or liberty interests. As noted above, this circuit 

has held that students do not have a protected property or liberty interest in 

participating in extracurricular activities.95 We have also held that students 

are not deprived of a protected property or liberty interest when they are 

placed in alternative education programs, such as the DAEP.96 McClelland 

thus failed to allege the deprivation of a protected property or liberty interest, 

so the district court did not need to reach the merits of his procedural or 

substantive due process claims. 

V. CONCLUSION

We AFFIRM the district court’s dismissal of McClelland’s (1) 42 

U.S.C. § 1983 claims against Defendants-Appellees on the basis of qualified 

and sovereign immunity; (2) overbreadth and void-for-vagueness claims; and 

(3) substantive and procedural due process claims. 

94 402 F. App’x 852, 854 (5th Cir. 2010) (quoting NCAA v. Yeo, 171 S.W.3d 863, 

865 (Tex. 2005)). 

95 Id.

96 Nevares, 111 F.3d at 26-27; see also Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 

635 F.3d 685, 690 (5th Cir. 2011) (“A student’s transfer to an alternate education program 

does not deny access to public education and therefore does not violate a Fourteenth 

Amendment interest.”). 

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