Judge Calls Fifth Circuit Law on Student Speech ‘Dumpster Fire’

A former Texas high school student can move forward with claims that her teacher violated her First Amendment rights by trying to force her to write the Pledge of Allegiance and retaliating against her when she refused.

The U.S. Court of Appeals for the Fifth Circuit on Wednesday denied the teacher’s motion for rehearing en banc, drawing several dissents, including one from Judge Stuart Kyle Duncan, who called the circuit’s law “a dumpster fire.”

“We should have taken this case en banc to put it out,” Duncan said. “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.”

Mari Leigh Oliver refused to transcribe the pledge as part of a sociology lesson because the “under God” language doesn’t match her religious beliefs and because she believes there isn’t “freedom and justice for all” in the U.S., as Black people like her continue to experience racial persecution.

Oliver alleges her sociology teacher, Benjie Arnold, informed her class that anyone who didn’t complete the assignment would receive a grade of zero and that he engaged in an extended diatribe aimed at her, lamenting what he viewed as the decline of American values.

A district court rejected Arnold’s bid for summary judgment based on qualified immunity. A split panel of the U.S. Court of Appeals for the Fifth Circuit in June rejected Arnold’s appeal.

The appeals court denied Arnold’s petition for rehearing en banc, in an order entered by Judge James L. Dennis.

Judge James C. Ho concurred, saying “no legitimate pedagogical interest is served by forcing students to agree with a particular political viewpoint, or by punishing those who refuse.”

Judge Jennifer Walker Elrod also dissented. Federal judges “should not be in the business of policing the lesson plans of public school teachers,” Elrod said. “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.”

Law Office of Randall L. Kallinen PLLC and the American Atheists Legal Center represent Oliver. Fanning Harper Martinson Brandt & Kutchin PC represent Arnold.

The case is Oliver v. Arnold, 5th Cir., No. 20-20215, 12/15/21.