IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10731

LITTLE PENCIL, L.L.C.; DAVID L. MILLER, 

 Plaintiffs - Appellants

v.

LUBBOCK INDEPENDENT SCHOOL DISTRICT, 

 Defendant - Appellee

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 5:14-CV-14

ON PETITION FOR REHEARING

Before JOLLY and DENNIS, Circuit Judges, and RAMOS,* District Judge.

PER CURIAM:**

We deny the petition for rehearing en banc, but grant panel rehearing. 

We withdraw our earlier opinion, which adopted the reasoning of the district 

court and affirmed the dismissal of the complaint. We now substitute therefor 

the following, which also dismisses the complaint but not for the all-inclusive 

reasons asserted by the district court:

 

* District Judge of the Southern District of Texas, sitting by designation.

** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 23, 2015

Lyle W. Cayce

Clerk

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No. 14-10731

2

The plaintiffs seek to display an image and website address on the 

jumbotron at the Lubbock Independent School District (“LISD”) football field. 

LISD refused to allow the ad for several reasons. Shortly thereafter, the 

plaintiffs sued LISD under 42 U.S.C. § 1983, claiming multiple violations of 

the First and Fourteenth Amendments. After reviewing the evidence, the 

district court granted summary judgment in favor of LISD. 

The plaintiffs appealed. Having studied the record and briefs, and 

having heard the oral argument of the parties, we AFFIRM the district court’s 

grant of LISD’s motion for summary judgment and dismissal of the complaint. 

We hold that the football field was a limited public forum and LISD’s

content-based, viewpoint-neutral limitations were reasonable in the light of a 

Texas law against tattoo parlors serving minors and LISD policies against 

visible tattoos. Consequently, we find no reversible error in the district court’s 

conclusion that LISD’s subject-matter limitations on the jumbotron were 

constitutional. See Christian Legal Soc. Chapter of the Univ. of Cal., Hastings 

Coll. of the Law v. Martinez (CLS), 561 U.S. 661, 685 (2010) (explaining that 

the regulation must be “reasonable in light of the purposes of the forum”); 

Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985) 

(holding that an exclusion must be “reasonable in light of the purpose served 

by the forum”). 

The plaintiffs’ Establishment Clause claim fails because LISD may 

legitimately exclude the ad for its tattoo content without a “risk [of] fostering 

a pervasive bias or hostility to religion, which could undermine the very 

neutrality the Establishment Clause requires.” Rosenberger v. Rector and 

Visitors of Univ. of Va., 515 U.S. 819, 845–46 (1995). That LISD permitted 

other religious organizations to advertise evidences that it fosters no such 

hostility. And, in the light of these other ads, no reasonable observer could 

conclude that excluding the ad endorsed irreligion over religion. See Doe v. 

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Santa Fe Indep. Sch. Dist., 168 F.3d 806, 814 (5th Cir. 1999) (explaining the 

Endorsement Test).

Furthermore, as stated by the district court, the plaintiffs’ Fourteenth 

Amendment Due Process and Equal Protection rights were not violated 

because “the jumbotron is a limited public forum and [LISD] has offered a 

rational basis for rejecting the advertis[ement].” We find no reversible error 

in the district court’s conclusion that the plaintiffs failed to identify a “life, 

liberty, or property” interest that had been denied without due process because 

“the [LISD] Superintendent, with advice and counsel, is sufficiently restrained

by First Amendment law to prevent abuse by ‘unfettered discretion.’ ”

With respect to the plaintiffs’ Free Exercise claim, we find no reversible 

error in the district court’s conclusion that the plaintiffs’ arguments were 

“advanced under the [incorrect] premise that the forum was a [designated] 

public forum for the free expression of ideas and views.” Given the limited 

nature of the forum, and the tattoo content in the ad, LISD could exclude the 

ad. Moreover, there was no compulsion of, or punishment for, religious belief; 

nor was there a substantial burden placed upon religiously-motivated conduct. 

See Emp’t Div., Dept. of Human Res. of Or. v. Smith, 494 U.S. 872, 876–77, 

882–83 (1990) (citing Sherbert v. Verner, 374 U.S. 398 (1963)). Finally, we hold 

that the district court did not abuse its discretion in denying Little Pencil’s 

request for leave to supplement the record.

The judgment of the district court dismissing the complaint is, therefore,

AFFIRMED. 

AFFIRMED.

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