Dawg Bones

Is the right of a student not to recite the Pledge “clearly established”?

Yesterday I told you about the suit pending in Klein ISD in which the plaintiff alleges that the district has an “unwritten policy or custom” to discipline and harass students who choose not to recite the Pledge. Today, another aspect of that case. One teacher who was sued in her individual capacity sought dismissal of the case on the basis of “qualified immunity.”

Educators are protected from personal liability due to “qualified immunity” as long as they do not violate legal principles that are “clearly established". There are numerous court cases in which the court concludes that a school administrator violated a student’s constitutional rights, but will not be held personally responsible for it because the law was too murky. It was not “clearly established.”

In the Klein ISD case, the plaintiff alleges that a 17-year old girl who had written permission from her mother to be excused from reciting the Pledge was hassled and harassed by teachers and other students.  One teacher was sued for allegedly retaliating against the girl after her mother filed the suit.  The teacher filed a Motion to Dismiss based, in part, on qualified immunity. She argued that the laws about this were not clearly established.

The court held that the teacher was not entitled to immunity:

The law establishing that student speech can only be limited when it interferes with “the work of the school or impinges upon the rights of other students” is clearly established.  The Supreme Court also clearly established, over 70 years ago, that it is unconstitutional to require a child to stand for the Pledge of Allegiance.

So here is a classroom teacher facing potential personal liability over allegations that she retaliated against a student for the exercise of free speech.  The case is Arceneaux v. Klein ISD. This particular ruling was issued by the district court for the Southern District of Texas on July 20, 2018. We found it at 2018 WL 3496737.

DAWG BONE: WHEN SCOTUS DECIDES AN ISSUE, IT’S “CLEARLY ESTABLISHED.”  

Tomorrow: The Dawg considers a religious conversion.