United States Court of Appeals

for the Fifth Circuit ___________ 

No. 20-20215

___________ 

Mari Leigh Oliver,

Plaintiff—Appellee,

versus

Benjie Arnold,

Defendant—Appellant.

______________________________ 

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:17-CV-3234 

______________________________ 

ON PETITION FOR REHEARING EN BANC

(Opinion: June 29, 2021, 5 Cir., 3 F.4th 152)

Before Wiener, Dennis, and Duncan, Circuit Judges.

James L. Dennis, Circuit Judge:

Treating the petition for rehearing en banc as a petition for panel 

rehearing (5th Cir. R. 35 I.O.P.), the petition for panel rehearing is 

DENIED. The petition for rehearing en banc is DENIED because, at the 

request of one of its members, the court was polled, and a majority did not 

vote in favor of rehearing (Fed. R. App. P. 35 and 5th Cir. R. 35).

United States Court of Appeals

Fifth Circuit

FILED

December 15, 2021

Lyle W. Cayce

Clerk
No. 20-20215

2

In the en banc poll, seven judges voted in favor of rehearing (Judges 

Jones, Smith, Elrod, Duncan, Engelhardt, Oldham, and Wilson), and ten

voted against rehearing (Chief Judge Owen, and Judges Stewart, Dennis, 

Southwick, Haynes, Graves, Higginson, Costa, Willett, and Ho). 

ENTERED FOR THE COURT: 

/s/ James L. Dennis

James L. Dennis

United States Circuit Judge
No. 20-20215

3

James C. Ho, Circuit Judge, concurring in denial of rehearing en banc:

It’s a sad fact of modern life in America that the culture wars are no 

longer limited to skirmishes between elected officials on Capitol Hill or in our 

state capitals. They are increasingly fought by students and parents in 

classrooms and before school boards across America.

This case is just one example. Viewing the evidence in the light most 

favorable to the plaintiff (as we must at this stage), a public school teacher 

punished a student for refusing to embrace certain views on America, 

religion, and race.

And there are countless other examples nationwide. Some teachers 

require students to view themselves and others differently because of their 

race—notwithstanding our Nation’s commitment to racial equality and 

color-blindness. See, e.g., Christopher F. Rufo, Woke Elementary: A Cupertino 

elementary school forces third-graders to deconstruct their racial identities, then 

rank themselves according to their “power and privilege”, CITY J., Jan. 13, 2021; 

Joshua Dunn, Critical Race Theory Collides with the Law: Can a school require 

students to “confess their privilege” in class?, EDUCATION NEXT, May 19, 2021.

Others forbid students from using biological pronouns and other 

terms that “invalidate” a person’s gender identity—notwithstanding the 

widely-held view that biological pronouns invalidate no one, but are dictated 

by science, faith, grammar, or tradition. See, e.g., Jesse Bunch, Point Park 

University: ‘Action’ to be taken for misgendering other students, Pittsburgh 

Post-Gazette, Sep. 27, 2021; Caleb Parke, College student reinstated after 

18-day exile from Christianity class for gender speech, FOX NEWS, Mar. 20, 2018.

Some teachers force students to express views deeply offensive to 

their faith. See, e.g., Kiri Blakeley, Seventh grader ‘had to say God wasn’t real’ 

in classroom assignment at her Texas school, DAILY MAIL, Oct. 28, 2015; Bruce 
No. 20-20215

4

Schreiner & Gilma Avalos, Florida school apologizes after students stomp on 

‘Jesus’, NBC News, Mar. 27, 2013.

And still others compel students to endorse certain political positions. 

See, e.g., Teacher assigns students to vote for Obama, ABC7 News Chicago, 

Sep. 18, 2012; Ryan Mills, Rhode Island Teacher Offered Students Extra Credit 

to Testify on Critical Race Theory Bill, NAT’L REV., June 22, 2021.

As in this case, these stories are allegations—not facts proven in a 

court of law. But they are allegations of constitutional violations that 

plaintiffs are entitled to pursue. They deserve their day in court—not 

summary dismissal under a misguided application of qualified immunity.

It should go without saying that forcing a public school student to 

embrace a particular political view serves no legitimate pedagogical function 

and is forbidden by the First Amendment. The Supreme Court made this 

clear in West Virginia State Board of Education v. Barnette, 319 U.S. 624 

(1943). In short, Barnette affirms that, if there is any “fixed star” under the 

First Amendment, it is that government officials—including public school 

officials—may not engage in viewpoint discrimination. Id. at 642.

Both our circuit and our sister circuits across the country have 

repeatedly reaffirmed this principle. And naturally, this principle applies 

regardless of what political viewpoint the teacher is attempting to 

indoctrinate—whether it’s a “liberal” or “conservative” public school 

teacher who is attempting to punish a “conservative” or “liberal” student. 

No legitimate pedagogical interest is served by forcing a student to endorse 

the political views of the teacher—not in the examples cited above, and not 

in the case before us today.

For its part, the dissent by Judge Duncan suggests that the various 

“conservative” student/“liberal” teacher examples listed above “may” 

pose constitutional violations. Post, at 37. See also id. at 36–37 & n.10 
No. 20-20215

5

(collecting cases). The dissent by Judge Elrod likewise suggests that the 

answers to these examples might be found elsewhere, such as the Fourteenth 

Amendment. See id. at 29.

But it’s unclear why they think these claims should succeed, and only 

Oliver’s should lose.

To the contrary, the Duncan dissent is emphatic that “federal judges 

[do not] run for school board.” Id. at 36. It proclaims that federal courts have 

no business “deciding whether class assignments are ‘truly pedagogical.’” 

Id. It’s troubled that school officials must consider students’ First 

Amendment rights as a “regular part of curricular planning.” Id. at 32. And 

it cites Justice Thomas’s lone concurrence in Morse v. Frederick, 551 U.S. 393, 

418–19 (2007), which concludes that “the Constitution does not afford 

students a right to free speech in public schools.” Post, at 36.

Likewise, the Elrod dissent says that “[p]arents may see to it that their 

children avoid such indoctrination”—but “not in a federal courthouse”—

only “in a local school board meeting or at the ballot box,” where “‘elected 

officials [are] accountable to the American voter.’” Id. at 29. But compare 

Dr. A. v. Hochul, 595 U.S. _, _ (2021) (Gorsuch, J., dissenting from the denial 

of application for injunctive relief) (principles in Barnette “are not matters to 

‘be submitted to vote; they depend on the outcome of no elections,’” but are 

“this Court’s duty” to enforce) (quoting 319 U.S. at 638).

Translation: School boards can do whatever they want.

This may explain why the dissenters say only that the above examples 

“may” pose constitutional violations—which is to say that they may not pose 

a constitutional violation—and certainly no obvious one. So under the 

dissenters’ view, these claims, like Oliver’s, would presumably be summarily 

dismissed on qualified immunity grounds.
No. 20-20215

6

Fortunately, the dissenters’ view does not represent the law of our 

circuit. In our circuit, the above examples, no less than Oliver’s, state 

constitutional violations that warrant judicial protection.

Accordingly, I concur in the denial of rehearing en banc in this case. I 

write separately to discuss, first, why this case demands further proceedings 

under the First Amendment, and second, why this case does not warrant 

summary judgment based on qualified immunity.

I.

Schools should educate—not indoctrinate. Teachers can teach. And 

teachers can test. But teachers cannot require students to endorse a 

particular political viewpoint.

Education is “the very foundation of good citizenship.” Brown v. Bd. 

of Educ., 347 U.S. 483, 493 (1954). It’s essential to ensuring that students 

obtain the knowledge they will need to become productive members of 

society and faithful participants in democracy. See, e.g., Wisconsin v. Yoder, 

406 U.S. 205, 221 (1972) (“[E]ducation is necessary to prepare citizens to 

participate effectively and intelligently in our open political system if we are 

to preserve freedom and independence.”).

So it’s “clearly established that a school may compel some speech.” 

Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d 338, 350 (5th Cir. 2017). 

“Otherwise, a student who refuses to respond in class or do homework would 

not suffer any consequences.” Id.

Teachers may obviously test students to confirm their knowledge of 

various topics. For example, “a teacher may, without fear of personal 

liability, ‘assign students to write ‘opinions’ showing how Justices Ginsburg 

and Scalia would analyze a particular Fourth Amendment question.’” Id. 

(quoting Brown v. Li, 308 F.3d 939, 953 (9th Cir. 2002)).
No. 20-20215

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But no legitimate pedagogical interest is served by forcing students to 

agree with a particular political viewpoint, or by punishing those who refuse. 

That would offend the First Amendment—as both our court and other 

circuits across the country have repeatedly recognized. See, e.g., Brinsdon, 

863 F.3d at 349 (educators may not “seek[] to inculcate [particular political] 

beliefs”).1 See also C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 187 (3rd Cir. 

2005) (“[A] public educational institution may not demand that a student 

profess beliefs or views with which the student does not agree.”); Wood v. 

Arnold, 915 F.3d 308, 319 (4th Cir. 2019) (same); Ward v. Polite, 667 F.3d 

727, 738 (6th Cir. 2012) (“A university cannot compel a student to alter or 

violate her belief systems . . . as the price for obtaining a degree.”) (citing 

Barnette, 319 U.S. at 342).2

A.

This bedrock constitutional principle is plainly implicated in this case. 

A high school sociology teacher, Benjie Arnold, required his students to 

1 By citing Brinsdon, I do not mean to suggest I would have necessarily reached the 

same judgment based on the facts there. To the contrary, I might very well have voted for 

rehearing en banc in Brinsdon and denied qualified immunity there too. My only point is 

that Brinsdon stands for the same underlying constitutional principle that applies here—

public school teachers may not force students to agree with their personal political views.

As for the dissenters’ notion that we should rehear this case en banc in order to 

“clarify” any tension between the panel decision here and Brinsdon, post, at 34 n.6: I voted 

against en banc rehearing because the panel here applied the correct constitutional rule, 

and did so correctly. So I saw no reason to delay the litigation further—and to tax the 

parties (and parents) with time-consuming en banc proceedings.

2 The Duncan dissent alleges that the panel decision here creates a circuit split with 

Wood. See post, at 32–33. But Wood recites the same rule I quoted above—that “a public 

educational institution may not demand that a student profess beliefs or views with which 

the student does not agree.” 915 F.3d at 319 (quoting C.N., 430 F.3d at 187). The dissent 

claims “Wood would come out differently in our circuit.” Post, at 33. I don’t see why. 

Obviously teachers may ask students to demonstrate their knowledge by repeating what 

they have learned (e.g., in a history lesson about various religions).
No. 20-20215

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transcribe the Pledge of Allegiance and listen to the Bruce Springsteen song 

“Born in the U.S.A.” Arnold gave this assignment to “‘teach students that 

people sometimes recite things every day out of habit and without thinking 

about what they are actually saying.’” Oliver v. Klein Ind. Sch. Dist., 448 F. 

Supp. 3d 673, 697 (S.D. Tex. 2020) (quoting Arnold).

One of his students, Mari Leigh Oliver, did not wish to participate in 

this particular assignment. That’s because, as “a young black woman . . . , 

she feels that the portion declaring America to be a nation ‘under God’ fails 

to recognize many religions and does not match her personal religious 

beliefs”—and because, “contrary to the words of the Pledge, there is not 

‘freedom and justice for all’ in America because she and other black people 

continue to experience widespread racial persecution.” Oliver v. Arnold, 3 

F.4th 152, 155–56 (5th Cir. 2021).

It’s easy to understand how those of us who deeply love this country 

would be upset by these sentiments. But like it or not, it’s hard to claim that 

Oliver wasn’t “thinking about” the words of the Pledge—after all, her whole 

point was that she strongly disagrees with the words of the Pledge. If 

anything, Oliver’s response might be an object lesson in—to take Arnold at 

his word—the importance of not “‘recit[ing] things every day out of habit 

and without thinking about what [you] are actually saying.’” Oliver, 448 F. 

Supp. 3d at 697 (quoting Arnold). Cf. Dead Poets Society (1989) 

(“Mr. Dalton, will you be joining us?” “Exercising the right not to walk.” 

“Thank you, Mr. Dalton. You just illustrated the point.”).

Yet Arnold informed Oliver—in front of the entire class—that he 

would give her a grade of “zero” on the assignment. See Oliver, 448 F. Supp. 

3d at 687. What’s more, Arnold went on and delivered extended remarks 

that confirmed that his agenda here was not pedagogical, but personal. As he 

told the class, “you can have all the beliefs, and resentment, and animosity
No. 20-20215

9

that you want.” Id. at 697 (quoting Arnold). But “if you can tell me two 

countries you’d rather go to, I will pay your way there if they’re communist 

or socialist. Most of Europe is socialist and it’s crumbling. Or it’s 

communism. But if you ever come back you have to pay me twice what it 

cost me to send you there.” Id. (quoting Arnold) (cleaned up). “You know 

there’s a lot of things I complain about. So when it comes time in November 

I go vote, or I protest in writing, in legal. Those are the ways we do it in 

America. Where a country will crumble is when people coming into a country 

do not assimilate to that country. That doesn’t mean you forget Day of the 

Dead, and whatever cultures, you maintain your language. That doesn’t 

mean that. But you’re not gonna drive on the left side of the road, and you’re 

not gonna impose Sharia law. Because it’s not. This. Country. But what is 

happening, and I can say it a lot more than you because I’ve lived longer. It’s 

almost as [if] America’s assimilating to THOSE countries.” Id. at 697–98 

(quoting Arnold) (cleaned up).3

The point here is not to determine who’s right and who’s wrong about 

the Pledge of Allegiance and the values for which it stands. It’s not to decide 

whether Oliver was being courageous and principled, or obnoxious and 

3 Oliver also alleges that Arnold subsequently retaliated against her by treating her 

unfavorably in various ways. See id. at 687 (“Oliver told Assistant Principal Walters that 

Arnold had given her a zero on the pledge assignment, called her by the wrong name, moved 

her seat repeatedly because he could not ‘see her eyes’ to see if she was sleeping (despite 

other students obviously sleeping in class), and made a condescending reference to her 

debate accomplishments, among other things.”). School administrators responded by 

directing Arnold to “be neutral in class discussions” and “sensitive to students’ rights in 

regards to the Pledge,” and to “[a]ssign alternate work instead of requiring the writing or 

recitation of the Pledge as needed for any student that may object.” Id. They also 

instructed Arnold to “[m]onitor students by leaving [the teacher’s] desk in order to aid in 

seeing their eyes,” to “[i]nteract with Oliver only as necessary as teacher of record,” and 

“not move her again, [and] instead walk [around] the room to ensure he ‘saw students[’] 

eyes at all times.’” Id. And they placed a written summary of these discussions in Arnold’s 

personnel file. Id. at 687–88.
No. 20-20215

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ungrateful. We can stipulate that patriotism is important, and that America 

is the greatest nation on Earth, while acknowledging that one of the reasons 

is because our Constitution protects freedom of speech and liberty of 

conscience for all Americans, including Oliver.

The First Amendment does not vary based on whether a particular 

viewpoint is agreeable or offensive to one community or another. It protects 

every student in classrooms across the country who has been coerced into 

expressing a particular position, whether on matters of race, gender, religion, 

or politics. That includes Oliver. And that is so whatever one may think of 

her views. As the Supreme Court observed in affirming the constitutional 

right to burn our Nation’s flag, “we do not doubt that the government has a 

legitimate interest in making efforts to preserve the national flag as an 

unalloyed symbol of our country.” Texas v. Johnson, 491 U.S. 397, 418 (1989) 

(cleaned up). But “[i]f there is a bedrock principle underlying the First 

Amendment, it is that the government may not prohibit the expression of an 

idea simply because society finds the idea itself offensive or disagreeable.” 

Id. at 414.

Based on the record evidence, including Arnold’s own remarks, a jury 

could reasonably conclude that the Pledge assignment served no legitimate 

pedagogical purpose, and that Arnold was engaged in nothing more than 

viewpoint discrimination against one of his students. See, e.g., Axson-Flynn 

v. Johnson, 356 F.3d 1277, 1300 (10th Cir. 2004) (“[I]t is clearly established 

that a pretextual speech restriction that is not justified by a legitimate 

pedagogical concern, and is based rather on religious discrimination, would 

violate [a student’s] First Amendment rights.”); Ward, 667 F.3d at 738 (“A 

reasonable jury could find that the university dismissed [the student] from its 

counseling program because of her faith-based speech, not because of any 

legitimate pedagogical objective. A university cannot compel a student to 

alter or violate her belief systems based on a phantom policy as the price for 
No. 20-20215

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obtaining a degree.”); Settle v. Dickson Cnty. Sch. Bd., 53 F.3d 152, 155 (6th 

Cir. 1995) (teachers may not limit or grade speech in the classroom “as a 

pretext for punishing the student for her . . . political persuasion”).4

It’s also possible, to be sure, that Arnold can convince a jury that he 

was trying to further a legitimate pedagogical objective, not to punish Oliver 

for disagreeing with him. But that is precisely the point—the record evidence 

is sufficient to warrant further proceedings, and thus to preclude summary 

judgment on grounds of qualified immunity.

B.

The Duncan dissent responds by theorizing that the Pledge 

assignment in this case was nothing more than a memorization exercise. See 

post, at 32. Based on that premise, the dissent even scolds the panel (and me) 

for putting any number of pedagogically traditional memorization 

assignments in constitutional jeopardy as a result. See id.

The dissent’s theory contradicts common sense—not to mention the 

record in this case.

Let’s remember: We’re talking about a sociology class for high school 

seniors. By the time students take Arnold’s class, they will have listened to 

(if not voluntarily participated in) the verbal recitation of the Pledge of 

Allegiance every morning of every school day for over a decade. See, e.g., 

4 The dissenters contend that it is wrong for a court to examine a teacher’s motive. 

See post, at 26–27, 33–36. But as the above cases affirm, courts may determine whether a 

stated pedagogical purpose is “legitimate” or a “pretext” for viewpoint discrimination. 

We’re just asking whether Arnold is serving a pedagogical interest—or a personal, political 

one. Under the dissent’s view, by contrast, courts would be required to defer to school 

officials—both in this case and in the examples set forth in my introduction.

Along the same lines, I do not understand the dissent’s criticism of Corder v. Lewis 

Palmer School District No. 38, 566 F.3d 1219 (10th Cir. 2009). See post, at 35 n.7. Because 

under the dissent’s view, Corder got it exactly right—courts must defer to schools, period.
No. 20-20215

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Croft v. Governor of Texas, 562 F.3d 735, 746 (5th Cir. 2009) (“The 2003 

Amendments changed the way that every schoolchild in Texas begins the 

day. They provide for the recitation of the pledges of allegiance to the flags 

of the United States and Texas, followed by a minute of silence for students 

to ‘reflect, pray, meditate, or engage in any other silent activity.’”) (quoting 

Tex. Educ. Code § 25.082(b)); Croft v. Perry, 624 F.3d 157, 168 (5th Cir.

2010) (“requiring school children . . . to sit and listen while teachers and 

other students recite” the Pledge does not violate the Constitution).

So it strains credulity that the pedagogical purpose of this exercise was 

for high school seniors to memorize the Pledge. It wasn’t—as Arnold’s 

testimony confirms. Arnold gave this assignment on the assumption that high 

school seniors have already memorized the Pledge. This was a sociology

assignment designed to “‘teach students that people sometimes recite things 

every day out of habit and without thinking about what they are actually 

saying.’” Oliver, 448 F. Supp. 3d at 697 (quoting Arnold) (emphasis added).5

In short, the purpose of the assignment wasn’t to memorize the 

Pledge—it was to analyze it. Moreover, the problem here wasn’t that Arnold 

asked students either to memorize or analyze an important text. It’s that he 

then used the assignment as a pretext to punish Oliver for disagreeing with 

his view of the Pledge—as his own words again confirm.

This is indefensible. Even the dissent acknowledged that this was “a 

curious teaching method.” 3 F.4th at 164 (Duncan, J., dissenting). But it’s 

more than that. If left unchecked, it establishes a dangerous precedent.

5 The Elrod dissent suggests this was a bona fide memorization assignment, 

because according to Arnold, some of his students can say the Pledge but can’t write it. See 

post, at 28 n.7. But if that’s his theory—that high school seniors can’t write the Pledge 

despite a lifetime of exposure to it—Arnold will have the opportunity at trial to attempt to 

reconcile it with his prior statements.
No. 20-20215

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Imagine that another public high school teacher prepares the following 

“spelling” assignment: A worksheet tells the story of a person whose gender 

identity differs from their biological sex at birth. The pronouns in that story 

are all left blank. The teacher instructs students to fill in the blanks of that 

story with female pronouns. Now imagine that the teacher’s required 

pronoun usage deeply offends one or more students. May the teacher punish

students who refuse to endorse the teacher’s pronoun usage, on the ground 

that it’s just a “spelling” test to ensure that high school seniors know how to 

spell “she” and “her”? (Does it matter whether the student is offended 

because she believes strongly in pronouns consistent with biological sex at 

birth, or pronouns that accommodate a person’s preference?)

To Arnold’s credit, he admits his was no memorization exercise—just 

as, in my hypothetical, one would hope the teacher would admit this was no 

spelling test. But let’s say both teachers lie. They claim that these are bona 

fide memorization and spelling assignments. Under established precedent, 

courts may ignore such patently pretextual justifications in order to protect 

First Amendment rights of conscience—and disregard either assignment as 

mere pretext for enforcing orthodoxy. See, e.g., Axson-Flynn, 356 F.3d at 

1300; Ward, 667 F.3d at 738; Settle, 53 F.3d at 155.

The point is that Arnold’s sociological exercise for high school seniors 

bears no resemblance to the traditional Pledge memorization assignment 

typically assigned in elementary school. So the dissent’s concerns thus seem 

quite misplaced to me. The panel decision doesn’t threaten memorization 

assignments any more than my hypothetical case threatens spelling tests. 

Students and teachers throughout this circuit may rest assured that they may 
No. 20-20215

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continue to memorize important texts without fear of courting constitutional 

controversy.6

II.

Under the doctrine of qualified immunity, a § 1983 plaintiff must state 

not only a constitutional violation, but a “clearly established” one.

A plaintiff ordinarily defeats qualified immunity by citing governing 

case law finding a violation under factually similar circumstances. But “that 

is not the only way to defeat qualified immunity.” Villarreal v. City of Laredo, 

17 F.4th 532, 539 (5th Cir. 2021). “Although earlier cases involving 

‘fundamentally similar’ facts can provide especially strong support for a 

conclusion that the law is clearly established, they are not necessary to such 

a finding.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). A “general 

constitutional rule already identified in the decisional law may apply with 

obvious clarity to the specific conduct in question, even though the very 

action in question has not previously been held unlawful.’” Id. (cleaned up). 

“The central concept is that of ‘fair warning.’” Kinney v. Weaver, 367 F.3d 

337, 350 (5th Cir. 2004) (en banc) (quoting Hope, 536 U.S. at 740).

So an official who commits a patently “obvious” violation of the 

Constitution is not entitled to qualified immunity. Hope, 536 U.S. at 745.

A.

It should be obvious that the First Amendment forbids a public school 

teacher from punishing a student for refusing to agree with the teacher’s 

personal political views, whatever views those may be. What’s more, this 

should have been obvious to Arnold for multiple reasons.

6 Similarly, teachers need not worry that they are now forbidden from issuing “inclass writing assignments,” as Judge Elrod suggests. Post, at 23. They simply can’t misuse 

writing assignments (nor spelling tests) to engage in viewpoint discrimination.
No. 20-20215

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To begin with, it’s hard to imagine how the Supreme Court could have 

been more emphatic than this: “If there is any fixed star in our constitutional 

constellation, it is that no official . . . can prescribe what shall be orthodox in 

politics, nationalism, religion, or other matters of opinion or force citizens to 

confess by word or act their faith therein.” Barnette, 319 U.S. at 642. “If 

there is a bedrock principle underlying the First Amendment, it is that the 

government may not prohibit the expression of an idea simply because 

society finds the idea itself offensive or disagreeable.” Johnson, 491 U.S. at 

414. Simply put, public officials can’t engage in viewpoint discrimination.

Moreover, longstanding federal Department of Education guidelines 

reinforce the conclusion that teachers may not punish students based on their 

political or religious viewpoints. “Students may express their beliefs about 

religion in homework, artwork, and other written and oral assignments free 

from discrimination based on the religious content of their submissions.” 

U.S. Department of Education, Guidance on Constitutionally Protected Prayer 

in Public Elementary and Secondary Schools, Feb. 7, 2003, available at

https://www2.ed.gov/policy/gen/guid/religionandschools/prayer_guidanc

e-2003.html. “Such home and classroom work should be judged by ordinary 

academic standards of substance and relevance and against other legitimate 

pedagogical concerns identified by the school.” Id. “Thus, if a teacher’s 

assignment involves writing a poem, the work of a student who submits a 

poem in the form of a prayer (for example, a psalm) should be judged on the 

basis of academic standards (such as literary quality) and neither penalized 

nor rewarded on account of its religious content.” Id. See also Memorandum 

on Religious Expression in Public Schools, 31 WEEKLY COMP. PRES. DOC. 1227, 

1229 (July 17, 1995) (“Students may express their beliefs about religion in . . . 

assignments free of discrimination based on the religious content of their 

submissions. Such home and classroom work should be judged by ordinary 

academic standards of substance and relevance, and against other legitimate 
No. 20-20215

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pedagogical concerns identified by the school.”). Cf. Hope, 536 U.S. at 741–

42 (“in light of . . . a DOJ report informing the [defendant] of the 

constitutional infirmity in [the alleged misconduct], we readily conclude that 

the respondents’ conduct violated ‘clearly established statutory or 

constitutional rights of which a reasonable person would have known’”) 

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Finally, school officials specifically and repeatedly warned Arnold to 

respect “Oliver’s right to abstain from the Pledge.” Oliver, 3 F.4th at 157. 

See also id. at 156 (“the [school] principal held a meeting with Oliver’s 

teachers, including Arnold, and instructed them that Oliver was not required 

to participate in the Pledge”). Cf. Hope, 536 U.S. at 741–42 (prison guards 

should have known that they were violating inmate’s rights based on an 

Alabama Department of Corrections regulation).

So Arnold received ample warning that forcing Oliver to embrace the 

Pledge over her personal, political, and religious objections would violate her 

constitutional rights. Id. at 740.

B.

In response, the Duncan dissent applies a surprisingly narrow reading 

to Barnette. See post, at 31–32. It concludes that Barnette does not apply to 

written assignments, and that no case says otherwise. See id.

In particular, the dissent theorizes that Barnette protects students only 

against forced verbal recitations of the Pledge of Allegiance. It says that 

Barnette is only about a “prescribed ceremony” involving “the compulsory 

flag salute and pledge that required affirmation of a belief and an attitude of 

mind” by compelling a “‘stiff-arm’ salute . . . the right hand raised with palm 

turned up.” Id. at 31 (quoting Barnette, 319 U.S. at 628, 634) (cleaned up). 

The dissent concludes that “[t]he panel’s decision to uncritically extend 

Barnette to a written assignment warrants en banc review.” Id. at 31–32.
No. 20-20215

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But it doesn’t. We don’t need to grant en banc review to recognize 

the broad First Amendment protections recognized in Barnette. Because our 

en banc court has already done so.

Just look at what our court said in Morgan v. Swanson, 659 F.3d 359 

(5th Cir. 2011) (en banc). The decision is badly (and tragically) splintered. 

But the majority made amply clear that Barnette stands for far more than the 

right not to give a “stiff-arm” salute while forcibly reciting the Pledge.

Indeed, the Barnette sisters appeared before our en banc court as 

amici, and even presented oral argument through counsel, to explain how 

their Supreme Court victory also protected the religious speech of the 

students in Morgan—claims that have nothing to do with the ceremonial 

recitation of the Pledge with a stiff-arm salute.

And the en banc majority enthusiastically agreed. It read Barnette to 

hold just what it said—that “‘[i]f there is any fixed star in our constitutional 

constellation, it is that no official, high or petty, can prescribe what shall be 

orthodox in politics, nationalism, religion, or other matters of opinion.’” Id.

at 401–02 (Elrod, J., writing for the majority) (quoting Barnette, 319 U.S. at 

642). The majority was in fact quite emphatic on this point: “This 

prohibition is so well-established as to be ‘axiomatic.’” Id. at 401. “When 

the government targets . . . particular views taken by speakers on a subject, 

the violation of the First Amendment is all the more blatant.” Id. (quotations 

omitted).7

7 The Elrod dissent today suggests that the “fixed star” of Barnette—the 

prohibition on viewpoint discrimination—is not “fixed” enough to overcome qualified 

immunity. See post, at 25 (“looking to a ‘fixed star’ is a sign that the right is being assessed 

at far too high a level of generality”); id. at 29 (“Read at the interstellar level of generality, 

qualified immunity provides no safe harbor.”). So the “fixed star” is “axiomatic” no 

more. Morgan, 659 F.3d at 401 (Elrod, J., writing for the majority). But see Dr. A., 595 U.S. 
No. 20-20215

18

Moreover, the majority seemed exasperated by school officials who, 

“[e]ven in the face of Barnette” and other cases, continue to “contend that 

the First Amendment does not protect elementary school students from 

viewpoint discrimination—an assertion belied by the facts of the cases 

themselves.” Id. at 404.

In sum, there’s no need to go en banc to confirm that the bedrock First 

Amendment principles upheld in Barnette extend well beyond the 

“prescribed ceremony” and “stiff-arm salute” that occurs every morning in 

public schools across our circuit. Because we’ve already done so.

III.

I have previously criticized the doctrine of qualified immunity as 

contrary to the text and original understanding of 42 U.S.C. § 1983. See, e.g.,

Horvath v. City of Leander, 946 F.3d 787, 795, 800–03 (5th Cir. 2020) (Ho, J., 

concurring in the judgment in part and dissenting in part). That’s because I 

see no textualist or originalist basis for requiring § 1983 plaintiffs to 

demonstrate not only a constitutional violation, but a “clearly established” 

one. Id. Contrast the Antiterrorism and Effective Death Penalty Act of 1996, 

in which Congress expressly codified a “clearly established” requirement 

into law. See id. at 800 (quoting 28 U.S.C. § 2254(d)).8

But to make matters worse, we often get things precisely backwards 

when we dutifully apply the doctrine of qualified immunity. “[W]e grant 

at _ (Gorsuch, J., dissenting from the denial of application for injunctive relief) (“fixed 

star” passage in Barnette “is among our Nation’s proudest boasts”).

8 See also Scott A. Keller, Qualified and Absolute Immunity at Common Law, 73 

Stan. L. Rev. 1337, 1342 (2021) (“The Act’s text, both originally and as codified today 

in 42 U.S.C. § 1983, says nothing about state-officer immunities.”); id. at 1346 (“qualified 

immunity at common law could be overridden by showing an officer’s subjective improper 

motive, while today the clearly-established-law test applies”).
No. 20-20215

19

immunity when we should deny—and we deny immunity when we should 

grant.” Id. at 795. We “find constitutional violations [clearly established] 

where they do not [even] exist”—and ignore them when they are patent. Id. 

at 801.

To take an example familiar to our en banc court, imagine we denied 

qualified immunity to a police officer for making a split-second, life-or-death 

decision to protect innocent citizens against violent criminals—but granted 

qualified immunity to a public school teacher who deliberately punished a 

student for exercising her freedom of conscience on one of the most sensitive 

issues dividing our Nation. To my mind, that would turn the law upside 

down. But see Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (en banc) (denying 

qualified immunity to police officer engaged in good-faith, split-second 

decision to fire at potential mass shooter); Winzer v. Kaufman Cnty., 940 F.3d 

900 (5th Cir. 2019) (denying en banc rehearing after panel denied qualified 

immunity under similar circumstances).

After all, consider this: One of the primary reasons for qualified 

immunity is that we do not want to chill government officials from the 

“unflinching discharge of their duties.” Horvath, 946 F.3d at 801 (Ho, J., 

concurring in the judgment in part and dissenting in part) (quoting Gregoire 

v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949) (Hand, C.J.)). “The specter of 

personal liability for a mistake in judgment may cause a prudent police officer 

to close his eyes.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 353 (1986) 

(Powell, J., concurring in part and dissenting in part)). “Law enforcement is 

ill-served by this in terrorem restraint.” Id. (quotations omitted).

But “[w]hen it comes to the First Amendment, . . . we are concerned

about government chilling the citizen—not the other way around.” Id. at 

802. Cf. Hoggard v. Rhodes, 141 S. Ct. 2421, 2422 (2021) (Thomas, J., 

respecting denial of cert.) (“[W]hy should university officers, who have time 
No. 20-20215

20

to make calculated choices about enacting or enforcing unconstitutional 

policies, receive the same protection as a police officer who makes a splitsecond decision to use force in a dangerous setting?”); Villarreal, 17 F.4th at 

540–41 (“There is a big difference between split-second decisions by police 

officers and premeditated plans to arrest a person for her journalism.”) 

(quotations omitted).

* * *

I’ll end where I began—with the sad fact that the culture wars are no 

longer fought only by elected politicians who volunteer for battle, but are 

increasingly forced upon private citizens in schools and communities across 

America. But the reason for this reveals an even sadder truth—that we 

increasingly live in a country that does not value freedom.

Our Nation’s commitment to free speech is based on our “firm belief 

in the robust and fearless exchange of ideas as the best mechanism for 

uncovering the truth.” Lefebure v. D’Aquilla, 15 F.4th 670, 674 (5th Cir. 

2021) (collecting authorities). That “the best test of truth is the power of the 

thought to get itself accepted in the competition of the market.” Abrams v. 

United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). That’s why 

our Founders were “confiden[t] in the power of free and fearless reasoning.” 

Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).

But free speech and debate are increasingly devalued in the search for 

truth—to the contrary, they are openly disparaged as harmful to progress.

In some quarters, free speech is nothing more than a tool of patriarchy 

and white supremacy. As one professor put it, the “idea of intellectual debate 

and rigor as the pinnacle of intellectualism comes from a world in which white 

men dominated.” Michael Powell, Science, Ideology and Politics Jostle in the 

Halls of Academia, N.Y. Times, Oct. 20, 2021, at A1, A14. Speech is 

violence—not just metaphorically, but “literally.” Lisa Feldman Barrett, 
No. 20-20215

21

When Is Speech Violence?, N.Y. Times, July 16, 2017, at SR9. To quote 

another professor, “[w]ords can have a powerful effect on your nervous 

system. . . . [They] can make you sick, alter your brain—even kill neurons—

and shorten your life.” Id. So “[i]f words can cause stress, and if prolonged 

stress can cause physical harm, then it seems that speech—at least certain 

types of speech—can be a form of violence. . . . From the perspective of our 

brain cells, [certain speech] is literally a form of violence.” Id.9

Worst of all, these views have begun to affect (some might say infect)

our Nation’s institutions of learning. And that may be the most tragic 

development of all. For it is in our classrooms where we are supposed to 

teach the next generation what it means to be free. Schools should be training 

students, not sock puppets. See Abigail Shrier, What I told the students of 

Princeton—Show some self-respect and reclaim your freedom, Substack, Dec. 

8, 2021. But a new regime has started to sink in—one in which “education 

is not about teaching people how to think, it’s about reeducating them in what 

to think. . . . [T]he need to feel safe trumps the need to speak truthfully.” 

Bari Weiss, We Got Here Because of Cowardice. We Get Out With Courage—

Say no to the Woke Revolution, Commentary, Nov. 2021, at 53, 54.

Our society and our schools once embraced the quintessentially 

American maxim: “I disapprove of what you say, but I will defend to the 

death your right to say it.” But our culture and our teachers are increasingly 

9 Meanwhile, violence is increasingly considered speech. See, e.g., Spencer Neale, 

Chris Cuomo: ‘Show me where it says that protests are supposed to be polite and peaceful’, WASH.

EXAMINER, Jun. 3, 2020; VICKY OSTERWEIL, IN DEFENSE OF LOOTING: A RIOTOUS 

HISTORY OF UNCIVIL ACTION (2020); Jesse A. Myerson & José Martín, 9 Historical 

Triumphs to Make You Rethink Property Destruction, ROLLING STONE, May 29, 2020 

(celebrating “property destruction as a tactic of resistance”). But see Doe v. Mckesson, 947 

F.3d 874, 878 (5th Cir. 2020) (Ho, J., concurring in denial of rehearing en banc) (“The 

First Amendment protects protest, not trespass.”).
No. 20-20215

22

sending citizens and students the opposite message: I disapprove of what you 

say, and I will use every means at my disposal to stop you from saying it.

Americans are a diverse and passionate bunch. That is a feature of our 

country, not a bug. But if we can’t debate (or even tolerate) one another—if 

this is where our national culture is going—then we are headed for an 

ideological arms race, one in which each side in any major debate will escalate 

every grievance and deploy every tool at their disposal to suppress their 

opponents. And I fear that, as our Founders predicted, we will all be worse 

off as a result. See, e.g., Katha Pollitt, The Left Needs Free Speech, Dissent, 

Summer 2021, at 45, 47 (“If you call for a bookstore not to stock your 

enemy’s book or rejoice when a problematic classic is taken out of print, your 

enemy will do the same. Then it just comes down to who has more power. 

You won’t have a universal principle to appeal to.”).

It is for all these reasons that I highlight our court’s decision today. A 

decision that affirms our Nation’s founding commitment to freedom of 

speech. A decision that enforces the First Amendment where it is 

increasingly needed—in public school classrooms nationwide. A decision to 

deny qualified immunity and hold public officials accountable where the 

constitutional violation is not only obvious, but trending. I concur in the 

denial of rehearing en banc.
No. 20-20215

23

Jennifer Walker Elrod, Circuit Judge, joined by Jones, Smith, 

Duncan, Engelhardt, and Wilson, Circuit Judges, dissenting from 

the denial of en banc rehearing:

Can a teacher in the Fifth Circuit be held liable for money damages for 

giving an in-class writing assignment? Until now, no. The district court, the 

panel majority, and the concurring opinion do not identify a single case where 

this has happened before—not in the Fifth Circuit, not anywhere else. Yet 

somehow each finds a way to deny Arnold qualified immunity. Federal 

judges should not be in the business of policing the lesson plans of publicschool teachers. But even when we must, qualified immunity should protect 

a teacher who (until now) could not have known that his conduct violated a 

student’s constitutional rights. Thus, I respectfully dissent.

For several years, sociology teacher Benjie Arnold required his 

students to transcribe the words of the Pledge of Allegiance and contemplate 

Bruce Springsteen’s “Born in the U.S.A.” as part of an in-class exercise. 

Arnold administered this assignment to show that people “sometimes recite 

things every day out of habit and without thinking about what they are 

actually saying.” Oliver v. Klein Indep. Sch. Dist., 448 F. Supp. 3d 673, 686 

(S.D. Tex. 2020). Mari Oliver refused to participate. Oliver, who earlier that 

day exercised her First Amendment right to refuse to pledge allegiance to the 

American flag, refused to even write the words of the Pledge as part of a 

sociology class assignment. She argued that this assignment also violated her 

First Amendment right to not recite the pledge. Oliver sued, claiming that 

the in-class writing assignment violated her First Amendment right to refuse 

to speak. 

Arnold claimed he was entitled to qualified immunity and moved for 

summary judgment, but the district court denied his motion because there 

was a genuine dispute of material fact over whether Arnold made an 

“impermissible attempt to promote patriotism.” Id. at 697. The panel 
No. 20-20215

24

majority agreed, holding that there was a material dispute over whether 

Arnold had an “impure motive” in giving this assignment. Oliver v. Arnold, 

3 F.4th 152, 162 (5th Cir. 2021).

Qualified immunity protects government officials from liability 

“when their actions could reasonably have been believed to be legal.” 

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

The action cannot just be illegal; it must be clearly illegal. Existing precedent 

must place the legality of the official’s actions “beyond debate” such that 

every “reasonable official would have understood that what he was doing 

violate[d]” a constitutional right. Ashcroft v. al-Kidd, 563 U.S. 731, 740–41 

(2011). And we have been warned repeatedly “not to define clearly 

established law at a high level of generality,” id. at 742,1 otherwise officials 

would be held liable without “fair warning” that their conduct was 

unconstitutional, see Hope v. Peltzer, 536 U.S. 730, 740–41 (2002). This 

exacting standard has led us to conclude that “educators are rarely denied 

immunity from liability arising out of First-Amendment disputes.” Morgan 

v. Swanson, 755 F.3d 757, 760 (5th Cir. 2014) (Morgan II). Indeed, the en banc

court in Morgan I (over my dissent) granted school officials qualified 

immunity because “no federal court of appeals has ever denied qualified 

immunity to an educator in this area.” Morgan I, 659 F.3d at 371. Under our 

rule of orderliness, the en banc decision in Morgan I controls our qualifiedimmunity jurisprudence in this regard. See Planned Parenthood of Greater Tex. 

Fam. Planning & Preventative Health Servs. v. Kaufman, 981 F.3d 347, 369 (5th 

Cir. 2020) (en banc).

Nevertheless, the panel majority denied qualified immunity. Oliver, 3

F.4th at 162–63. It did so because, in its view, “Barnette clearly states that 

1 See City of Tahlequah, Okla. v. Bond, 142 S. Ct. 9, 11 (2021) (“We have repeatedly 

told courts not to define clearly established law at too high a level of generality.”).
No. 20-20215

25

teachers and other school officials may not require students to swear 

allegiance.” Id. 2 That proposition, it contended (and our concurring 

colleague agrees), comes from the oft-quoted passage from Barnette: “If 

there is any fixed star in our constitutional constellation, it is that no official, 

high or petty, can prescribe what shall be orthodox in politics, nationalism, 

religion, or other matters of opinion or force citizens to confess by word or 

act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 

642 (1943). 

But when assessing whether a teacher had a “fair warning,” looking 

to a “fixed star” is a sign that the right is being assessed at far too high a level 

of generality. See Hope, 536 U.S. at 741. Barnette involved students being 

required to stand and salute the American flag and pledge fealty to it. In 

Morgan we relied on it for the proposition that students—even elementary 

school students—have First Amendment rights.3

 Oliver, on the other hand, 

had to complete an in-class writing assignment, which was designed to teach 

sociology students that people often do not even pay attention to—much less 

2 We have already grappled with the breadth of the Barnette decision in Morgan I—

the plaintiffs from Barnette even filed an amicus brief and participated in oral argument to 

support the First Amendment rights of elementary school students. See Brief for Gathie 

Barnett Edmonds & Marie Barnett Snodgrass as Amici Curiae, Morgan v. Swanson, 659 

F.3d 359 (5th Cir. 2011) (No. 09-40373). (Courts have misspelled the Barnetts’ name for 

decades because of a typographical error in the original litigation. See id. at 2 n.1.) Still, we 

construed the scope of Barnette (and other First Amendment precedents) narrowly and 

granted the school officials qualified immunity. See Morgan I, 659 F.3d at 386–90.

3 Students undoubtedly have First Amendment rights. See Morgan I, 659 F.3d at 

412 (Elrod, J.) (holding that student passing out pencils with the word “Jesus” on them 

during non-curricular time was protected by the First Amendment); see also Bell v. 

Itawamba Cnty. Sch. Bd., 799 F.3d 379, 401–02 (5th Cir. 2015) (Elrod, J., concurring) 

(explaining that a student’s off-campus speech was not protected because his rap song “was 

directed to the school and contained threats of physical violence”). 
No. 20-20215

26

mean—things that they regurgitate from memory, 4 be it the Pledge of 

Allegiance or the lyrics to “Born in the U.S.A.” by Bruce Springsteen (a.k.a. 

“the Boss”).5

 Thus, to deny qualified immunity here is to equate these two 

clearly different scenarios, which our own qualified immunity jurisprudence 

forbids.

Importantly and problematically, the panel majority rested its 

conclusion on the district court’s finding a factual dispute about Arnold’s 

“impure motive” in giving this assignment. Oliver, 3 F.4th at 162–63. But 

for qualified-immunity purposes, “a particular defendant’s subjective state 

of mind has no bearing on whether that defendant is entitled to qualified 

immunity.” Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001). 

Granted, under some circumstances we do consider subjective intent, like 

with race discrimination or First Amendment retaliation claims. Kinney v. 

Weaver, 367 F.3d 337, 373 (5th Cir. 2004) (en banc). But as those examples 

4 One would think that Oliver might have enthusiastically embraced the 

opportunity to discuss this very point. This assignment would have been a prime 

opportunity for Oliver to demonstrate why she refused to recite the Pledge earlier that day.

5 It makes sense that a teacher might couple the transcription of the Pledge with 

this song, as the lyrics have been historically misunderstood. In fact, the song was most 

famously played at the 1984 Republican National Convention as a celebration of American 

values, even though the lyrics belie that very message. See Marc Dolan, How Ronald Reagan 

Changed Bruce Springsteen’s Politics, Politico Magazine (June 4, 2014), 

https://www.politico.com/magazine/story/2014/06/bruce-springsteen-ronald-reagan107448/. The last verse, for example, goes: “Down in the shadow of the penitentiary / out 

by the gas fires of the refinery / I’m ten years burning down the road / nowhere to run ain’t 

got nowhere to go.” Hardly a pro-America message. Ironically, Arnold himself 

misremembered the lyrics to the song when explaining the purpose of the assignment: “So 

see times sometimes you see or hear something. Like yesterday’s song. It is probably one 

of the most anti-American songs ever written, but it’s got that catchy, catchy lyric, and 

nobody else knows the words. So I had some students that were bashing the song because 

they thought it was about America. But then they’re gonna find out eventually that it was 

one of the biggest America bashing songs there was. But it’s got that catchy lyric—‘Born 

in America.’”
No. 20-20215

27

indicate, we do so when an official’s subjective state of mind is an element of 

the claim—for race discrimination, motive is key; for First Amendment 

retaliation, adverse action must be because of the plaintiff’s protected speech. 

But in determining whether speech was compelled in violation of the 

First Amendment, motive is irrelevant. To establish that her speech was 

compelled in violation of the First Amendment, Oliver does not have to show 

that Arnold intended to make her pledge loyalty to America. See Barnette, 319 

U.S. at 640, 642. The focus of our inquiry is not the teacher’s motive, but 

the student’s compelled act. Post at 34 (Duncan, J., dissenting from the 

denial of rehearing en banc). Otherwise, the vindication of a student’s 

constitutional rights hinges on a teacher’s earnestness rather than the 

objective reasonableness of the teacher’s actions. True, this approach 

provides Oliver a short-term win: She may proceed to trial on her claims. But 

in the long-run, students lose. Because a student must now prove her 

educator’s “impure motive,” a student is much less likely to prevail at the 

end of the day. See Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d 338, 349 

(5th Cir. 2017) (“It is true that direct evidence of [a teacher’s] motive or 

intent can be hard to come by.”).6

Our sister circuits have wisely steered clear of this improper-motive 

path. In the Fourth Circuit, a teacher can require a student to write out the 

Five Pillars of Islam so long as the student is not required to “profess or 

accept the tenets of Islam.” Wood v. Arnold, 915 F.3d 308, 319 (4th Cir. 

2019). In the Third Circuit, a teacher may force a student to “speak or write 

on a particular topic even though the student may prefer a different topic,” 

6 The panel also justified its consideration of Arnold’s subjective motives by 

relying on our decision in Brinsdon. There, this court considered the teacher’s subjective 

intentions in determining that the teacher was entitled to qualified immunity. Brinsdon, 

863 F.3d at 349. To the extent that the court in Brinsdon did so in this context, it ran afoul 

of our qualified immunity jurisprudence—yet another reason to hear this case en banc.
No. 20-20215

28

provided that the teacher does not “demand that a student profess beliefs or 

views with which the student does not agree.” C.N. v. Ridgewood Bd. of Ed., 

430 F.3d 159, 187 (3d Cir. 2005). And in the Ninth Circuit, a teacher can 

make a student “write a paper from a particular viewpoint, even if it is a viewpoint with which the student disagrees, so long as the requirement serves a 

legitimate pedagogical purpose.” Brown v. Li, 308 F.3d 939, 953 (9th Cir. 

2002). 

The First Amendment gives federal judges no special insight into 

whether it is a good idea to give an assignment asking sociology students to 

transcribe the Pledge of Allegiance from memory (especially when required 

to contemplate the lyrics of “Born in the U.S.A.”).7

 It certainly gives them 

no license to authorize a damages award against teachers for assignments 

they deem insufficiently “pedagogical.” That is because it is generally wellestablished that teachers have wide latitude to, well, teach. See, e.g., Safford 

Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377 (2009) (noting the “high 

degree of deference that courts must pay to [an] educator’s professional 

judgment”); Morse v. Frederick, 551 U.S. 393, 409 (2007) (teachers have “a 

difficult job, and a vitally important one”). And students, by and large, may 

be compelled to listen (and hopefully learn). See Morgan I, 659 F.3d at 417–

18 (Elrod, J., dissenting) (noting that teachers have more latitude to control 

student speech during “curricular” times, as opposed to “non-curricular” 

7 Our concurring colleague says that “Arnold’s sociological exercise for high 

school seniors bears no resemblance to the traditional Pledge memorization assignment 

typically assigned in elementary school.” Ante at 13 (Ho, J., concurring in the denial of 

rehearing en banc). Despite his insistence that this assignment is too elementary to be 

taught to high school students, Arnold’s testimony reveals quite the opposite: “This lesson 

is borne out when most of the students, who daily orally recite the Pledge, cannot write the 

words on paper.”
No. 20-20215

29

times). Were it not so, “a student who refuses to respond in class or do 

homework would not suffer any consequences.” Brinsdon, 863 F.3d at 350. 

Our concurring colleague is concerned about the prospect of teachers 

indoctrinating students with their political agendas. But upending our 

court’s qualified immunity jurisprudence while shirking our court’s rule of 

orderliness is not the solution to this problem. 8 There is, of course, the 

Fourteenth Amendment (and other federal or state laws) to protect students 

against discrimination. With discrimination, courts unquestionably do have 

a role to play in managing school curricula: prohibiting discrimination. If a 

given curriculum is not discriminatory, but merely one with which parents 

disagree, there are other remedies available to them. That is the domain of 

school boards, made up of “elected officials accountable to the American 

voter.” Texas v. Rettig, 993 F.3d 408, 410–11 (5th Cir. 2021) (Ho, J., 

dissenting from the denial of rehearing en banc). Parents may see to it that 

their children avoid such indoctrination—not in a federal courthouse, but in 

a local school board meeting or at the ballot box. And, ultimately, parents 

retain the power to choose where their children attend school. 

In the meantime, teachers in the Fifth Circuit are left in the lurch. 

How are they to know whether their lesson plans conflict with “fixed star[s]” 

in our “constitutional constellation”? Read at the interstellar level of 

generality, qualified immunity provides no safe harbor. I respectfully dissent 

from the denial of en banc rehearing.

8 It is not necessary for this court to contort our qualified immunity jurisprudence 

by importing a motive requirement for students to have a remedy. As for the First 

Amendment, claims against individual teachers could proceed without resort to motive, 

where clearly established law exists and an objectively reasonable teacher would know that 

the compelled speech was prohibited. Furthermore, claims against a school district could 

proceed where a district’s policy illegally compels student speech. 
No. 20-20215

30

Stuart Kyle Duncan, Circuit Judge, joined by Jones*, Smith, 

Elrod, Engelhardt, and Wilson, Circuit Judges, dissenting from 

denial of en banc rehearing:

In our circuit, public school teachers can make students pledge 

allegiance to Mexico but can’t make students write down our own pledge. 

The first assignment is a “cultural and educational exercise,” Brinsdon v. 

McAllen Indep. Sch. Dist., 863 F.3d 338, 349 (5th Cir. 2017), but the second is 

a compelled patriotic statement forbidden by the First Amendment. Oliver v. 

Arnold, 3 F.4th 152, 159–60 (5th Cir. 2021). A teacher who gives the first 

assignment merits qualified immunity, but a teacher who gives the second 

will have to convince a jury he had a “pedagogical purpose.” Id. at 162. I 

assume the reverse is also true. So, a teacher can make students pledge 

allegiance to the American Flag as a “cultural and educational exercise” but 

can’t make students write down the Mexican pledge if he wants to promote 

el Patriotismo.

Our law in this area is, in other words, a dumpster fire. We should have 

taken this case en banc to put it out. Then we could have addressed in a more 

coherent way how the First Amendment applies to student speech and public 

school curricula, an important and developing field.1 For reasons that baffle 

me, a majority of my colleagues declines the opportunity.

*

Judge Jones joins all save part III.

1

See, e.g., Arce v. Douglas, 793 F.3d 968, 981–83 (9th Cir. 2015) (observing that “[a]t 

least four other circuits have grappled with the breadth of a student’s First Amendment 

rights in the context of the development of a school curriculum”) (citing Virgil v. Sch. Bd. 

of Columbia Cty., 862 F.2d 1517 (11th Cir. 1989); Pratt v. Indep. Sch. Dist. No. 831, 670 F.2d 

771 (8th Cir. 1982); Zykan v. Warsaw Comm. Sch. Corp., 631 F.2d 1300 (7th Cir. 1980); 

Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005)); see also H.B. 3979, 87th Leg., (Tex. 2021) 

(forbidding state school employees from teaching, inter alia, that “an individual’s moral 

character is necessarily determined by his or her race or sex”).
No. 20-20215

31

I’ve already explained why the panel tortures West Virginia State 

Board of Education v. Barnette, 319 U.S. 624 (1943), by extending it to written 

assignments; why the teacher’s motives for giving such assignments are 

immaterial; and why—even assuming a constitutional violation—the teacher 

merited qualified immunity because this situation falls outside any clearly 

established law. See Oliver, 3 F.4th at 163–66 (Duncan, J., dissenting). Here, 

I will only highlight why the panel decision plainly merits en banc review.

I.

To begin with, this case is the first ever to apply Barnette to a written 

assignment. In Barnette, students had to salute the Flag while reciting the 

Pledge. 319 U.S. at 627–28. The decision said nothing about the words 

students might have to write on a history test or a philosophy paper. It should 

be obvious why. Pretending that such assignments “compel student speech” 

is courting chaos, as anyone who has faced a class full of teenagers would 

know. 2 It doesn’t matter that the assignment here included writing the 

Pledge’s words. The assignment had none of Barnette’s “prescribed 

ceremony”—“the compulsory flag salute and pledge [that] require[d] 

affirmation of a belief and an attitude of mind.” 319 U.S. at 634. And the 

panel’s idea that Barnette applies because it forbade compulsion “by word or 

act” wilts after two seconds’ scrutiny. Oliver, 3 F.4th at 163 (quoting Barnette

319 U.S. at 642). The “act” compelled in Barnette was a “‘stiff-arm’ salute 

. . . the right hand raised with palm turned up,” not writing an essay on Old 

Glory. 319 U.S. at 628. The panel’s decision to uncritically extend Barnette

2 Cf. Mahanoy Area Sch. Dist. v. B.L. by and through Levy, 141 S. Ct. 2038, 2050 

(2021) (Alito, J., concurring) (“As a practical matter, it is impossible to see how a school 

could function if administrators and teachers could not regulate on-premises student 

speech, including by imposing content-based restrictions in the classroom. In a math class, 

for example, the teacher can insist that students talk about math, not some other subject.”).
No. 20-20215

32

to a written assignment warrants en banc review. See Fed. R. App. P.

35(b)(1)(A).3

Judge Ho’s concurrence also cites no case applying Barnette to a 

written assignment. Yet he claims Barnette forbids the assignment here 

because it “forc[ed] a public school student to embrace a particular political 

view.” Ho, J., concurring in denial of rehearing en banc, at 2. That offers 

little help. Does it mean Barnette bars any written assignment that, in a 

student’s opinion, requires “embracing a particular political view”? If so, 

then the panel decision heralds a brave new world where First Amendment 

litigation will become a regular part of curricular planning. Must teachers 

now shy away from asking students to memorize any historical statement 

with a “particular political view”—say, the Declaration of Independence, 

the Preamble to the Constitution, or the speeches of Abraham Lincoln and 

Martin Luther King, Jr.? See Oliver, 3 F.4th at 165–66 (Duncan, J., 

dissenting). If that sounds ridiculous, it’s meant to be. Yet maybe that’s 

where the panel decision leads us. We should have taken this case en banc to 

find out. 

II.

Second, the panel creates a circuit split. In Wood v. Arnold, 915 F.3d 

308 (4th Cir. 2019), the Fourth Circuit declined to apply Barnette to a written 

class assignment. Students had to fill in these blanks on a history worksheet: 

“There is no god but ____ and Muhammad is the _______ of Allah.” Id.

at 312–13 (the answers were “Allah” and “messenger”). Rejecting a 

3 For the same reasons, the teacher should at a minimum have received qualified 

immunity because he did not violate any clearly established law. See Oliver, 3 F.4th at 164 

(Duncan, J., dissenting). Any disputes over Arnold’s motives for giving the assignment are 

immaterial and so do not present a jurisdictional impediment to finding qualified immunity. 

See id. at 165 (Duncan, J., dissenting); see also infra.
No. 20-20215

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student’s compelled speech claim, the court found Barnette inapplicable. Id.

at 318–19. That was because the assignment “did not require [students] to 

profess or accept the tenets of Islam,” nor were students “asked to recite the 

shahada,4 nor . . . to engage in any devotional practice related to Islam.” Id.

at 319. The student only had “to write . . . two words . . . as an academic 

exercise to demonstrate her understanding of the world history curriculum.” 

Ibid. By contrast, Barnette involved “compelling students to declare a belief 

through mandatory recital of the pledge.” Ibid. (cleaned up) (quoting 

Barnette, 319 U.S. at 631–32). Wood did not rely on, or even mention, the 

teacher’s “motivations” for giving the assignment.

Wood would come out differently in our circuit. Instead of winning 

dismissal of the First Amendment claim, the teacher would have to prove her 

motives for assigning the worksheet. Oliver, 3 F.4th at 161. Were there 

“pedagogical” or “didactic reasons” for the assignment? Id. at 162. Or was 

it given to “foster the spirit of [Islam]”? Ibid. (cleaned up) (quoting Barnette, 

319 U.S. at 625). A jury would sort out whether the teacher had 

“impermissible purposes” and levy damages if she did. Ibid. A core function 

of en banc review is to address such circuit splits. See Fed. R. App. P.

35(b)(1)(B). Yet a majority of our court declines. 

III.

Third, the panel is wrong that the teacher’s “motivations” matter. 

Barnette does not support that view. It accepted as legitimate the school 

board’s purpose (i.e., fostering “[n]ational unity”) but rejected the “means 

for its achievement” (i.e., “compelling the flag salute and pledge”). See 319 

4 The fill-in-the blanks statement is known as the shahada, a declaration that forms 

part of the “Five Pillars of Islam.” Wood, 915 F.3d at 312–13.
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U.S. at 640, 642. 5 To be sure, the panel cites our Brinsdon decision as 

authority for weighing the assignment’s “pedagogical purposes.” Oliver 3 

F.4th at 162 (citing Brinsdon, 863 F.3d 338). But Brinsdon was mistaken on 

that point.

Brinsdon reasoned this way: “[W]hat the [Supreme] Court found 

objectionable in both Barnette and Wooley was the state’s purpose of ‘fostering 

public adherence to an ideological point of view . . . .’” Brinsdon, 863 F.3d at 

349 (emphasis added) (quoting Wooley v. Maynard, 430 U.S. 705, 715 (1977)). 

That misreads Wooley. The page cited says nothing about “the state’s 

purpose.” Instead it says: “[W]e are faced with a state measure [i.e., requiring 

the state motto on license plates] which forces an individual . . . to be an 

instrument for fostering public adherence to an ideological point of view . . . 

.” Wooley, 430 U.S. at 715 (emphasis added). Wooley is talking about the 

compelled act itself, not the state’s “motives” for compelling it. Brinsdon 

was thus wrong and so was the panel. We should have gone en banc to fix that 

error, which has now distorted our precedent and which provides the panel’s 

sole reason for dismissing the appeal. See Oliver, 3 F.4th at 162.6 

The only possible source for the panel’s “motive” rule is an out-ofcircuit decision the panel doesn’t even cite, Axson-Flynn v. Johnson, 356 F.3d 

1277 (10th Cir. 2004). It held that teachers compelled a religious student to 

speak when, as part of an acting exercise, they made her say words she found 

5 The district court therefore erred in supposing it “impermissible” that a teacher 

might want to “instill patriotism” in his students. See Oliver v. Klein Indep. Sch. Dist., 448 

F. Supp. 3d 673, 697–98 (S.D. Tex. 2020). Instilling patriotism is a legitimate and 

praiseworthy goal for any teacher. See Barnette, 319 U.S. at 640 (“National unity as an end 

which officials may foster by persuasion and example is not in question.”). What Barnette

condemned was not “instilling patriotism” but doing so by a coercive pledge ceremony. 

6 Judge Ho suggests Brinsdon was wrongly decided. See Ho, J., concurring in 

denial of rehearing en banc, at 5 n.1 (suggesting teacher should have been denied qualified 

immunity). All the more reason, then, to take this case en banc and clarify our precedent. 
No. 20-20215

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offensive. See id. at 1290. Whether the First Amendment allowed this turned 

on whether the curricular choice “was truly pedagogical or whether it was a 

pretext for religious discrimination.” Id. at 1293.

Our circuit has never expressly adopted Axson-Flynn. We should think 

twice before we do. The Tenth Circuit spun its “truly pedagogical” standard 

out of two Supreme Court decisions addressing issues quite different from 

class assignments. Primarily, the court relied on Hazelwood School District v. 

Kuhlmeier, 484 U.S. 260 (1988), which rejected a free speech challenge to a 

school’s censoring a student newspaper, provided the school’s actions were 

“reasonably related to legitimate pedagogical concerns.” Id. at 273; see 

Axson-Flynn, 356 F.3d at 1285. The court also relied on Regents of University 

of Michigan v. Ewing, 474 U.S. 214 (1985), which rejected a due process 

challenge to a university’s not allowing a student to retake an exam. Ewing

opined that courts should not override such a “genuinely academic decision” 

unless the “person or committee responsible did not actually exercise 

professional judgment.” Id. at 225; see Axson-Flynn, 356 F.3d at 1293.

It strikes me as a long and unwise leap to apply Hazelwood or Ewing to 

evaluate a teacher’s motives for assigning classwork. Hazelwood addressed 

when administrators may “censor a school-sponsored publication, theatrical 

production or other vehicle of student expression,” 484 U.S. at 273, not what 

assignments teachers may give. Ewing was even further afield. Neither 

decision touched on compelled speech.7 And do we really want federal judges 

7 Moreover, Axson-Flynn’s alchemizing those decisions into a compelled speech 

test has led to at least one bizarre result. Applying Axson-Flynn, the Tenth Circuit held that 

a student could be forced to issue a written public apology for mentioning “Jesus Christ” 

in her valedictory speech. Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1231–32 

(10th Cir. 2009). The court thought the apology was “reasonably related to [the school’s] 

legitimate pedagogical concerns” that the student’s reference to Jesus not be “erroneously 

attributed to the school.” Id. at 1231 (quoting Axson-Flynn, 356 F.3d at 1290; Hazelwood, 

484 U.S. at 271). So the court dismissed the student’s compelled speech claim. Id. at 1232. 
No. 20-20215

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and juries deciding whether class assignments are “truly pedagogical”? If I 

wanted to do that, I would have run for school board. See Morse v. Frederick, 

551 U.S. 393, 421 (2007) (Thomas, J., concurring) (“Local school boards, not 

the courts, should determine what pedagogical interests are ‘legitimate’ and 

what rules ‘reasonably relat[e]’ to those interests.”) (quoting Hazelwood, 484 

U.S. at 273); but see Ho, J., concurring in denial of rehearing en banc, at 8 

(proposing a jury should decide whether “the Pledge assignment served [a] 

legitimate pedagogical purpose”). In any event, the panel does not say 

whether it draws on any of those precedents, and so our law will remain 

unclear. Had we gone en banc, we could have given careful thought to the 

matter. But, again, a majority of the court has thought otherwise. 

IV.

Finally, to find no compelled speech in this case would not leave other 

students—perhaps faced with an offensive assignment or an abusive 

teacher—without remedy. Students might challenge an assignment under 

the Free Exercise or Establishment Clauses.8 Or students faced with a racist 

curriculum might sue (along with parents and teachers) under the Equal 

Protection Clause or civil rights laws. 9 And surely there are cases where 

students—or teachers, for that matter—are actually compelled to express 

8 See Oliver, 3 F.4th at 165 n.2 (Duncan, J., dissenting) (“One can also imagine a 

written classroom assignment so contrary to a student’s religious beliefs that making him 

do it would violate the Free Exercise Clause.”); see also Wood, 915 F.3d at 313–18 

(examining student’s claim that history curriculum’s “comparative faith statement 

. . . endorsed a view of Islam over Christianity in violation of the Establishment Clause”).

9 See Cajune v. Indep. Sch. Dist. 194, No. 0:21-CV-01812 (D. Minn. filed Aug. 3, 

2021) (compl. at 9–11) (alleging Title VI claim on behalf of fifth graders shown video stating 

“structural racism . . . makes life easier for White people and more difficult for Black people 

and People of Color”); ibid. (Title VI claim alleging school committee forbade parents of

“Japanese, Norwegian, Dutch, Irish, and so on” ancestry to participate in event “focused 

on centering equity and bringing awareness” to “the BIPOC community”).
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themselves in violation of the First Amendment.10 For that reason, I agree 

with Judge Ho that the cases he identifies may pose actual constitutional 

violations. See Ho, J., concurring in denial of rehearing en banc, at 1–2. 

But those cases are not this one. Here, the panel accepts an 

unprecedented application of Barnette that warps the compelled speech 

doctrine, splits with another circuit, and sets up federal judges and juries as 

arbiters of whether teachers should pay damages for giving “nonpedagogical” assignments. A majority of the court unwisely declines to stop 

this misbegotten experiment in its tracks.

I respectfully dissent from denial of en banc rehearing. 

10See, e.g., Clark v. Democracy Prep Public Sch., Inc., No. 2:20-CV-02324 (D. Nev. 

filed May 3, 2021) (compl. at 18) (alleging student was compelled “to proclaim in class and 

in assignments his race, color, sex, gender, and religious identities”); see also Meriwether v. 

Hartop, 992 F.3d 492, 498, 511–12 (6th Cir. 2021) (holding public university violated 

teacher’s Free Speech and Free Exercise rights by compelling him to address students by 

their “preferred pronouns”); Henderson v. Sch. Dist. of Springfield R-12, No. 6:21-CV03219 (W.D. Mo. filed Aug. 18, 2021) (compl. at 15–16) (First Amendment claim alleging 

teachers were required during mandatory equity training to hold up “agree” or “disagree” 

signs in response to statements such as “Parents are the oppressors of their children” and 

“White people are oppressors”).
No. 20-20215

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Andrew S. Oldham, Circuit Judge, joined by Elrod, Circuit Judge, 

dissenting from denial of en banc rehearing: 

I agree with Judge Duncan that we should’ve reheard this case en banc. 

I write separately to note my slightly different understanding of the important 

constitutional rights at stake.

It is well settled that students do not give up their First Amendment 

rights “at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 

393 U.S. 503, 506 (1969). And federal courts bear a solemn responsibility to 

vindicate those rights. See, e.g., Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 

2038, 2049 (2021) (Alito, J., concurring). 

Our track record for doing so, however, is checkered at best. Just four 

years ago, our court granted qualified immunity to a teacher who required 

students to recite the Mexican pledge of allegiance. Brinsdon v. McAllen 

Indep. Sch. Dist., 863 F.3d 338, 348 (5th Cir. 2017). Today’s decision reaches 

the opposite result for the American pledge. The distinction purportedly 

turns on the purity (whatever that means) of the motives (however we find 

those) guiding the different teachers. See Oliver v. Arnold, 3 F.4th 152, 162–

63 (5th Cir. 2021) (embracing an “impure motive” test). 

The importance of students’ constitutional rights demands far better. 

The “impure motive” test reaffirms none of our Nation’s founding 

principles; it undermines them. We should’ve reheard this case en banc.