5th Circuit Denies En Banc Review In Teacher Qualified Immunity Case

In Oliver v. Arnold, (5th Cir., Dec. 15, 2021), the U.S. 5th Circuit Court of Appeals by a vote of 7-10 denied an en banc rehearing in a suit against a Texas high school teacher by a former student who refused on religious grounds to transcribe the Pledge of Allegiance as part of an assignment. The student alleges that she was retaliated against by the teacher.  The district court refused to grant summary judgment on the teacher's qualified immunity defense and a 3-judge appellate panel, in a 2-1 decision, agreed. (See prior posting). Judge Ho filed a 19-page opinion concurring the denial of an en banc  rehearing of the panel's decision. Three dissenting opinions spanning 15 pages were also filed. Among the issues raised by these are whether the teacher's motive in giving the assignment is relevant and whether the Supreme Court's flag salute cases apply to written school assignments in addition to ceremonies. 

5th Circuit Refuses To Dismiss Suit Against Teacher Who Required Writing The Pledge

In Oliver v. Arnold, (5th Cir., June 29, 2021), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision  dismissed a high school teacher's appeal of a Texas federal district court's refusal to grant his summary judgment on qualified immunity grounds. The suit was brought by his former student who refused on religious grounds to recite the Pledge of Allegiance. The student alleged that the teacher attempted to require her to transcribe the Pledge and when she refused, he continued to retaliate against her in class. The majority said in part:

Because Arnold seeks to have this court resolve the very factual disputes that the district court found to be genuine and properly submitted for trial on the merits, which we do not have jurisdiction to do, we grant Oliver’s motion and DISMISS the appeal.

Judge Duncan dissented, saying in part:

[C]onsider the implications of the majority’s approach. It sends to trial a § 1983 claim based on a student’s objection to a written assignment, merely because there is a question about the teacher’s motive for giving it. One can imagine where this approach might lead. It is not a happy place.

Student Who Objects To Reciting Pledge May Move Ahead On Compelled Speech Claim Against Teacher

In Oliver v. Klein Independent School District, (SD TX, March 25, 2020), a Texas federal district court, while dismissing a number of plaintiff's claims, allowed a high school student to move ahead with her 1st Amendment compelled speech claim against her sociology teacher Benji Arnold.  Plaintiff Mari Oliver  objected to reciting the Pledge of Allegiance. As described by the court:

Arnold played the Bruce Springsteen song “Born in the U.S.A.,” and told the class to write down how the song made them feel.... He then gave the students a timed assignment to transcribe the Pledge of Allegiance, stating that, because the assignment was written, the students were not actually pledging allegiance to the United States.... Oliver refused, drawing a “squiggly line” instead.

The court held:

The parties disagree about whether Arnold was hostile to those who abstain from the pledge and refuse to assimilate into American society. The complaint alleges that Arnold compared people who abstain from the pledge to Soviet communists, supporters of Sharia, and people who condone pedophilia.... The parties’ interpretations of Arnold’s remarks inform their arguments about whether the pledge assignment had an impermissible patriotic intent. Oliver and Arnold also dispute whether Oliver’s refusal to write the pledge was protected speech or a mere refusal to do coursework.... Granting summary judgment for Arnold on the compelled-speech claim is clearly inappropriate. Granting partial summary judgment for the plaintiffs is a closer question, but the full record at trial will provide a more secure basis for an accurate ruling.

Challenge May Proceed Against School Policy of Disciplining Students Who Refuse To Recite Pledge

In Arceneaux v. Klein Independent School District, (SD TX, May 22, 2018), a Texas federal district court allowed a high school student to move ahead with her free speech, free exercise, and equal protection challenges to a school policy of disciplining and harassing students for sitting during the Pledge of Allegiance.

Trial Judge's Opening With Pledge of Allegiance Does Not Violate Establishment Clause or Due Process

In State of Ohio v. Daniels, (OH App., March 16, 2015), an Ohio appeals court affirmed the drug possession and drug trafficking conviction of Michael Daniels, Jr., who, among other things, argued that the trial court erred when it required the parties and the jury at his trial to recite the Pledge of Allegiance that invokes a Supreme Being in violation of the Establishment Clause. He also urged that the Pledge amounts to a required loyalty oath that violates the due process clause.  The court held that, first, Daniels waived any challenge by failing to object to the Pledge when the court announced that it would be recited. It continued:

[E]ven if the waiver doctrine did not apply herein, appellant provides no definitive case law holding that the use of “under God” in the Pledge of Allegiance, particularly when made part of a customary courtroom recitation, constitutes an impermissible State endorsement of monotheistic religion ..., and he further fails to articulate how an appellate reversal of his conviction would be the proper remedy for such an alleged constitutional violation.

Responding to Daniels' due process argument, the court quoted from a 2004 federal 10th Circuit Court of Appeals opinion:

 "We recognize that trial judges, among their many other responsibilities, should take care not to create the impression that it is appropriate for the judge or the jury to favor the prosecution simply because the court and the prosecution are both institutions of the United States. However, we do not think it reasonable to suppose that the jurors inferred from the Pledge of Allegiance a patriotic obligation to serve as a rubber stamp for the prosecution...."

Challenge To "Under God" In Pledge Rejected

In American Humanist Association v. Matawan-Aberdeen Regional School District, (NJ Super. Ct., Feb. 4, 2015), a New Jersey state trial court dismissed a lawsuit that claimed the daily recitation of the pledge of allegiance in public schools violates the equal protection guaranties of the New Jersey constitution to atheist and humanist students, even when they are not required to participate in the pledge.  The court said in part:

the court is not insensitive to the Does and Doechild's claim that they feel marginalized by the inclusion of the words "under God" in the text of the Pledge.  Subjective feelings, however, do not and cannot serve as a constitutional litmus test for equal protection in the absence of some invidious classification because potentially anything offensive to one's subjective sensibilities could be struck down as unconstitutional.

The Becket Fund issued a press release announcing the court's decision.

UPDATE: Here is a link to the full opinion and court's order.

"God" In Pledge and in Military Oath Challenged Anew By Humanist Group

Stars and Stripes reported earlier this week that the U.S. Air Force is seeking an opinion from the Defense Department's chief lawyer on whether an enlisted man who is an atheist can refuse to include the phrase "so help me God" in his re-enlistment oath. Among the armed services, only the Air Force has a policy that does not make inclusion of the phrase optional.  The American Humanist Association has threatened to sue on behalf of the airman, who is stationed at Creech Air Force Base in Nevada-- if the issue is not resolved next week.

Meanwhile last week the American Humanist Association launched a national campaign urging everyone to sit out the pledge of allegiance until the phrase "under God" is removed from it. The organization has created a website devoted to the campaign. The campaign yesterday released a letter it sent to New Town, North Dakota school officials complaining about a teacher's refusal to allow a first-grader to sit out the pledge.

Massachusetts Supreme Court Upholds Daily Voluntary Recitation of Pledge of Allegiance In Schools

In Doe v. Acton-Boxborough Regional School District, (MA Sup. Jud. Ct., May 9, 2014), the Massachusetts Supreme Judicial Court rejected claims by school children and their parents who are atheists and humanists that the voluntary daily recitation of the Pledge of Allegiance-- including the phrase "under God"-- violates the equality provisions (Art. 106) of the Massachusetts state Constitution and 76 MGL Sec. 5 that prohibits discrimination in public education. The Court said in part:

The plaintiffs do not appear to be claiming that their children have been punished, bullied, criticized, ostracized, or otherwise mistreated by anyone as a result of their decision to decline to recite some (or all) of the pledge.... [T]here is nothing empirical or even anecdotal in the summary judgment record to support a claim that the children actually have been treated or perceived by others as "outsiders," "second-class citizens," or "unpatriotic."

The plaintiffs' claim of stigma is more esoteric. They contend that the mere recitation of the pledge in the schools is itself a public repudiation of their religious values, and, in essence, a public announcement that they do not belong. It is this alleged repudiation that they say causes them to feel marginalized, sending a message to them and to others that, because they do not share all of the values that are being recited, they are "unpatriotic" "outsiders." We hold that this very limited type of consequence alleged by the plaintiffs -- feeling stigmatized and excluded -- is not cognizable under art. 106.

Justice Lenk filed a brief concurring opinion, stating in part:

[O]ur holding today should not be construed to bar other claims that might rely on sufficient indicia of harm. Should future plaintiffs demonstrate that the distinction created by the pledge as currently written has engendered bullying or differential treatment, I would leave open the possibility that the equal rights amendment might provide a remedy.

Boston Globe reports on the decision. [Thanks to How Appealing for the lead.]