Supplemental en Banc Brief of Appellants Swanson Bomchill (00387658)

Case: 09-40373 Document: 00511405662 Page: 1 Date Filed: 03/09/2011
Case No. 09-40373
In the United States Court of Appeals

for the Fifth Circuit
DOUG MORGAN; ROBIN MORGAN; JIM SHELL; SUNNY SHELL;

SHERRIE VERSHER; CHRISTINE WADE
Plaintiffs-Appellees
v.
LYNN SWANSON, IN HER INDIVIDUAL CAPACITY AND AS PRINCIPAL OF THOMAS

ELEMENTARY SCHOOL; JACKIE BOMCHILL, IN HER INDIVIDUAL CAPACITY AND
AS PRINCIPAL OF RASOR ELEMENTARY SCHOOL
Defendants-Appellants
On Appeal from the United States District Court

for the Eastern District of Texas, Sherman Division
SUPPLEMENTAL EN BANC BRIEF OF APPELLANTS

LYNN SWANSON AND JACKIE BOMCHILL
Thomas P. Brandt
Joshua A. Skinner
David R. Upham
FANNING HARPER MARTINSON
BRANDT & KUTCHIN, P.C.
Two Energy Square
4849 Greenville Ave., Suite 1300
Dallas, Texas 75206
(214) 369-1300 (office)
(214) 987-9649 (telecopier)
ATTORNEYS FOR DEFENDANTS-APPELLANTS

CERTIFICATE OF INTERESTED PERSONS

Case No. 09-40373
DOUG MORGAN; ROBIN MORGAN; JIM SHELL; SUNNY SHELL;

SHERRIE VERSHER; CHRISTINE WADE
Plaintiffs-Appellees
v.
LYNN SWANSON, IN HER INDIVIDUAL CAPACITY AND AS PRINCIPAL OF THOMAS

ELEMENTARY SCHOOL; JACKIE BOMCHILL, IN HER INDIVIDUAL CAPACITY AND AS
PRINCIPAL OF RASOR ELEMENTARY SCHOOL
Defendants-Appellants
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the judges
of this court may evaluate possible disqualification or recusal.
1. Defendants-Appellants Lynn Swanson and Jackie Bomchill are
represented by:
Thomas P. Brandt
Joshua A. Skinner
David R. Upham
Two Energy Square
Dallas, Texas 75206
ii
2. Plaintiffs-Appellees Jonathan Morgan, Doug Morgan, Robin Morgan,
Michael Shell, Kevin Shell, Jim Shell, Sunny Shell, Michaela Wade, Malcolm
Wade, Bailey Wade, Christine Wade, Stephanie Versher, and Sherrie Versher are
represented by:
Kelly Shackelford Paul D. Clement

Jeffrey C. Mateer Ashley C. Parrish
Hiram S. Sasser, III KING & SPALDING LLP
LIBERTY INSTITUTE 1700 Pennsylvania Avenue, N.W.
903 East 18th, Suite 230 Washington, D.C. 20006
Plano, Texas 75204
Wm. Charles Bundren Clyde M. Siebman

WM. CHARLES BUNDREN & SIEBMAN, REYNOLDS, BURG, PHILLIPS
ASSOCIATES, P.C. & SMITH, LLP
2591 Dallas Parkway, Suite 300 300 North Travis
Dallas, Texas 75034 Sherman, Texas 75090
In the appeal styled Morgan v. Plano Independent School District, No. 08-
40707, Plaintiffs-Appellees were also represented by
Allyson N. Ho
Craig A. Stanfield
MORGAN, LEWIS & BOCKIUS, LLP
1000 Louisiana Street, Suite 4200
Houston, Texas 77002
3. Nonappealing Defendants Plano Independent School District, Doug
Otto, John Beasley, and Carole Griesdorf are represented by:
Richard M. Abernathy Roger Sanders

Charles J. Crawford SANDERS, O‘HANLON
ABERNATHY, ROEDER, BOYD & & MOTLEY, P.L.L.C.
JOPLIN, P.C. 111 South Travis Street
iii
1700 Redbud Blvd., Suite 300 Sherman, Texas 75090

McKinney, Texas 75069
4. Nonappealing Defendants Lisa Long and Suzie Snyder are, as of
September 7, 2010, represented by:
Thomas P. Brandt
Joshua A. Skinner
Two Energy Square
Dallas, Texas 75206
5. Texas Association of School Boards Risk Management Fund is the
risk pool for Defendants.
/s/ Thomas P. Brandt

Thomas P. Brandt
Attorney of Record for Defendants-
Appellants Lynn Swanson and Jackie
Bomchill
iv
TABLE OF CONTENTS
Certificate of Interested Persons ............................................................................... ii
Table of Contents .......................................................................................................v
Table of Authorities ............................................................................................... viii
Jurisdictional Statement .............................................................................................1
Issues Presented .........................................................................................................2
Statement of the Case.................................................................................................3
Statement of the Facts ................................................................................................7
I. Swanson and Bomchill were following policy, not acting based on
any hostility toward religion. ...........................................................................7
A. Swanson‘s and Bomchill‘s acted not out of any personal
hostility toward religion, but in conformity with school policy,
supervisors‘ directions and lawyers‘ advice. ........................................7
B. The policy to which Swanson and Bomchill conformed sought
to restrict the distribution of religious materials in order to
avoid offending other students and parents and to avoid any
possible Establishment Clause claims. ..................................................9
II. Plaintiffs allege restrictions on religious messages at Thomas
Elementary. ....................................................................................................10
A. Swanson allegedly directed teachers to restrict the distribution
of religious gifts during classroom winter-break parties. ...................10
B. Swanson was concerned about the alleged banning of ―Merry
Christmas‖ messages on greeting cards and the alleged banning
of the colors red and green. .................................................................14
III. Plaintiffs allege restrictions on religious messages at Rasor
Elementary. ....................................................................................................15
A. Bomchill allegedly restricted the distribution of religious drama
tickets in order to avoid offending other students. ..............................15
B. Bomchill allegedly restricted the distribution to students of
pencils containing a religious imprint. ................................................16
Summary of the Argument.......................................................................................20
Standard of Review ..................................................................................................28
v
Argument..................................................................................................................29
I. The alleged conduct of Swanson and Bomchill is similar to conduct
that courts have permitted and even required. ...............................................29
A. Federal courts have permitted and even required greater
restrictions on speech in elementary schools, particularly when
that speech is religious or is directed at elementary school
students. ...............................................................................................30
1. Numerous courts, including five federal courts of
appeals, have upheld content-based restrictions on speech
in elementary schools without a showing that the speech
was disruptive. ..........................................................................30
2. Three federal courts of appeals have upheld content-
based restrictions on speech even in high schools without
a showing that the speech was disruptive. ................................34
B. It is unclear whether or to what extent the Free Speech Clause
protects affirmative student speech in elementary schools—
especially if the speech is religious. ....................................................35
1. Elementary school events are pervasively ―school-
sponsored.‖ ................................................................................37
2. Elementary school students are less likely to perceive the
difference between distribution by school officials and
distribution by third-parties during school events. ...................40
3. Avoiding conflict and avoiding the possibility of an
Establishment Clause violation are legitimate,
pedagogical purposes in elementary schools. ...........................41
II. Neither the Supreme Court nor this Court has clearly established that
Swanson‘s and Bomchill‘s alleged conduct would violate Plaintiffs‘
rights. .............................................................................................................42
A. The alleged conduct must be examined in light of the specific
context of the case, not as a broad general proposition. .....................43
B. The cases relied upon by Plaintiffs and the district court do not
clearly establish a First Amendment right in the specific context
of this case. ..........................................................................................46
1. Prohibiting public schools from compelling students to
swear the pledge of allegiance does not clearly establish
vi
the law in the specific context of this case................................47

2. Prohibiting public schools from preventing high school
students from wearing arm bands absent an anticipated
disturbance does not clearly establish the law in the
specific context of this case. .....................................................50
3. Case law relating to restrictions on religious speech in
limited public forums does not clearly establish the law
in the specific context of this case. ...........................................53
III. The Court should tread lightly lest it unnecessarily interfere with the
trust imparted by parents to elementary schools. ..........................................55
Conclusion ...............................................................................................................58
Certificate of Service ...............................................................................................60
Certificate of Complaince ........................................................................................61
vii
TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937 (2009) ...................................... 28, 45
Baxter v. Vigo County Sch. Corp., 26 F.3d 728 (7th Cir. 1994)................. 31, 36, 51
Bd. of Educ. v. Mergens, 496 U.S. 225 (1990) ........................................................48
Bd. of Educ. v. Pico, 457 U.S. 853 (1982) .................................................. 47, 55, 56
Bell v. Little Axe Indep. Sch. Dist., 766 F.2d 1391 (10th Cir. 1985) ................ 30, 41
Brandt v. Bd. of Educ. of City of Chicago, 480 F.3d 460 (7th Cir.),
cert. denied, 128 S. Ct. 441 (2007)................................................................36
Brosseau v. Haugen, 543 U.S. 194 (2004) ............................................. 2, 24, 26, 43
Brown v. Miller, 519 F.3d 231 (5th Cir. 2008) ........................................................28
Burnside v. Byars, 363 F.2d 744 (5th Cir. 1996) .....................................................57
Busch v. Marple-Newtown Sch. Dist., 567 F.3d 89 (3d Cir. 2009),
cert. denied, 130 S. Ct. 1137 (2010)................................................. 32, 33, 55
C.H. v. Oliva, 990 F. Supp. 341 (D.N.J. 1997), aff’d in part by an
equally divided court, aff’d in part on other grounds, 226 F.3d
198 (3d Cir. 2000) (en banc) .........................................................................31
Caudillo v. Lubbock Indep. Sch. Dist., 311 F. Supp. 2d 550 (N.D. Tex.
2004) ..............................................................................................................34
Chiras v. Miller, No. 3:03-CV-2651, 2004 U.S. Dist. LEXIS 14177
(N.D. Tex. 2004), aff’d on other grounds, 432 F.3d 606 (5th
Cir. 2005) .......................................................................................................34
Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330 (5th Cir. 2001) ...............................53
Choose Life Ill., Inc. v. White, 547 F.3d 853 (7th Cir. 2008) ..................................45
Culbertson v. Oakridge Sch. Dist. No. 76, 258 F.3d 1061 (9th Cir.
2001) ..............................................................................................................53
Curry v. Hensinger, 513 F.3d 570 (6th Cir.), cert. denied, 129 S. Ct.
725 (2008) ......................................................................................... 32, 42, 49
DeNooyer v. Livonia Pub. Schs., 799 F. Supp. 744 (E.D. Mich. 1992) ..................31
Duran v. Nitsche, 780 F. Supp. 1048 (E.D. Pa. 1991), vacated by, 972
F.2d 1331 (3d Cir. 1992) ...............................................................................30
Edwards v. Aguillard, 482 U.S. 578 (1987) ..................................................... 27, 57
Evans-Marshall v. Bd. of Educ., 428 F.3d 223 (6th Cir. 2005) ...............................58
Fleming v. Jefferson County Sch. Dist. R-1, 298 F.3d 918 (10th Cir.
viii
2002) ....................................................................................................... 34, 35

Gentilello v. Rege, 627 F.3d 540 (5th Cir. 2010).............................................. 28, 45
Good News Club v. Milford Central School, 533 U.S. 98 (2001) ........ 25, 47, 53, 54
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) ......................................35
Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective & Reg.
Servs., 380 F.3d 872 (5th Cir. 2004) .............................................................21
Hill v. Colorado, 530 U.S. 703 (2000) ....................................................................45
Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004) ...........................................47
Hope v. Pelzer, 536 U.S. 730 (2002) .......................................................................44
Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005).........................................................52
Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203 (1948) ..............................57
Madrid v. Anthony, 510 F. Supp. 2d 425 (S.D. Tex. 2007) .....................................34
Malley v. Briggs, 475 U.S. 335 (1986) ....................................................................22
Mitchell v. Forsyth, 472 U.S. 511 (1985) ..................................................................1
Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740 (5th Cir. 2009) ......................4, 37
Morgan v. Swanson, 610 F.3d 877 (5th Cir. 2010) ...................................................6
Morgan v. Swanson, 627 F.3d 170 (5th Cir. 2010) ......................................... passim
Morgan v. Swanson, 628 F.3d 705 (5th Cir. 2010) (en banc) ...............................1, 6
Morse v. Frederick, 551 U.S. 393 (2007) ........................................................ passim
Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530 (7th Cir. 1996) ........... 36, 52, 57
Nurre v. Whitehead, 130 S. Ct. 1937 (2010) .................................................... 24, 35
Nurre v. Whitehead, 580 F.3d 1087 (9th Cir. 2009), cert. denied, 130
S. Ct. 1937 (2010) ....................................................................... 22, 23, 34, 46
Nuxoll v. India Prairie Sch. Dist. #204, 523 F.3d 668 (7th Cir. 2008) ...................36
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009) ............................ passim
Peck v. Upshur County Bd. of Educ., 155 F.3d 274 (4th Cir. 1998) .......................31
Phillips v. Oxford Separate Mun. Sch. Dist., 314 F. Supp. 2d 643
(N.D. Miss. 2003) ..........................................................................................34
Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975).........................................................48
Poling v. Murphy, 872 F.2d 757 (6th Cir. 1989) .....................................................34
Pounds v. Katy Indep. Sch. Dist., 730 F. Supp. 2d 636 (S.D. Tex.
2010) ..............................................................................................................20
Roark v. South Iron R-1 Sch. Dist., 573 F.3d 556 (8th Cir. 2009). .........................40
Roe v. Tangipahoa Parish Sch. Bd., No. 07-2908, 2008 U.S. Dist.
ix
LEXIS 32793 (E.D. La. 2008) ................................................................ 31, 32

Rosenberger v. Univ. of Va., 515 U.S. 819 (1995) ..................................... 21, 44, 45
Rusk v. Crestview Local Sch. Dist., 379 F.3d 418 (6th Cir. 2004) ..........................54
S.G. v. Sayreville Bd. of Educ., 333 F.3d 417, 423 (2003) ................... 32, 37, 38, 51
Safford Unified Sch. Dist. v. Redding, __ U.S. __, 129 S. Ct. 2633
(2009) ............................................................................................ 2, 26, 47, 53
Sapp v. Renfroe, 511 F.2d 172 (5th Cir. 1975) ........................................................48
Saucier v. Katz, 553 U.S. 194 (2001) ..................................................................4, 47
Scott v. Harris, 550 U.S. 372 (2007) .......................................................................28
Spence v. Bailey, 465 F.2d 797 (6th Cir. 1972) .......................................................49
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) ... 25, 34, 47, 50
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ...................... 25, 46, 47
Walker-Serrano v. Leonard, 325 F.3d 412 (3d Cir. 2003) .............................. passim
Walz v. Egg Harbor Township Bd. of Educ., 342 F.3d 271 (3d Cir.
2003) ...................................................................................................... passim
Weise v. Casper, 593 F.3d 1163 (10th Cir. 2010) ...................................................45
Wilson v. Layne, 526 U.S. 618 (1999) .....................................................................24
Statutes
28 U.S.C. § 1291 ........................................................................................................1
28 U.S.C. § 1331 ........................................................................................................1
28 U.S.C. § 1367 ........................................................................................................1
TEX. EDUC. CODE §§ 25.151 et seq. .........................................................................33
Other Authorities
John E. Taylor, Tinker and Viewpoint Discrimination, 77 UMKC L.
REV. 569 (2009) .............................................................................................45
JOHN GIBSON, THE WAR ON CHRISTMAS: HOW THE LIBERAL PLOT TO
BAN THE SACRED CHRISTIAN HOLIDAY IS WORSE THAN YOU
THOUGHT (Sentinel 2005) ................................................................................7
Kristi L. Bowman, The Civil Rights Roots of Tinker’s Disruption
Tests, 58 AM. U.L. REV. 1129 (2009) ............................................................35
Melissa Rogers, The Texas Religious Viewpoints Antidiscrimination
Act and the Establishment Clause, 42 U.C. Davis L. Rev. 939
(2009) .............................................................................................................33
Op. Tex. Atty. Gen. GA-0609 (2008) ......................................................................33
x
Speech ―Gov. Perry‘s Remarks at the Signing of the School

Children‘s Religious Liberties Act - Sugar Land,‖ August 14,
2007 ...............................................................................................................33
Rules
5TH CIR. R. 28.2.1 ..................................................................................................... ii
FED. R. APP. P. 32.....................................................................................................61
xi
JURISDICTIONAL STATEMENT
The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and the ―collateral order
doctrine.‖ Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Appellants appealed
from the denial of their motion to dismiss based on qualified immunity. R.E.560,
687, 689.1 After the panel decision, this Court granted rehearing en banc. 628 F.3d
705 (December 17, 2010).
1
The record on appeal is cited as ―R.__‖. The supplemental record is cited as ―S.R.__‖. The
―USCA5‖ designation is omitted. The record excerpts are cited as ―R.E.__‖. The supplemental
record docket sheet is cited as ―R.E.S.__‖.
1
ISSUES PRESENTED
Two elementary school principals, Lynn Swanson and
Jackie Bomchill, are accused of having restricted,
pursuant to policy, the distribution of non-curricular
materials to elementary school students at school, based
on the religious content of the materials. The central
issue in this appeal is whether Swanson and Bomchill are
entitled to qualified immunity because their alleged
conduct did not violate clearly established law. The three
main sub-issues are:
1. Whether the district court erred by failing to

consider decisions from other circuits when
conducting the clearly established inquiry.
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct.
808, 822-23 (2009).
2. Whether the district court erred by failing to

consider the clearly established inquiry in light
of the specific context of the case, rather than as
a broad general proposition. Brosseau v.
Haugen, 543 U.S. 194, 198 (2004); Safford
Unified Sch. Dist. v. Redding, __ U.S. __, 129
S. Ct. 2633, 2644 (2009).
3. Whether the First Amendment is violated by

restrictions on the distribution of non-curricular
materials to elementary school students, based
on the religious content of those materials.
2
STATEMENT OF THE CASE

Plaintiffs2 brought suit against Plano Independent School District (―Plano
ISD‖) and various school employees, including Lynn Swanson (―Swanson‖) and
Jackie Bomchill (―Bomchill‖), on December 15, 2004. R.36.3 That first day of
litigation witnessed nearly 400 pages of pleadings filed.4 The original complaint
was brought on behalf of ten plaintiffs against seven defendants and contained
seven causes of action, requests for declaratory and injunctive relief, actual and
punitive damages and attorneys fees. R.36. Plaintiffs also brought an
Establishment Clause claim in which they claimed that the school‘s policies
―create an excessive entanglement with religion.‖ R.178 [¶10.6].
After more than six years of litigation, the issues have narrowed
considerably. There are fewer parties, fewer relevant factual allegations, and fewer
issues to resolve. Although Plaintiffs originally brought claims on behalf of both
parents and students (R.1600 [2d Amend. Compl. ¶¶6.313 and 6.315]), they have
since waived all parental claims. R.3541-42. The last six years of litigation have
witnessed the dismissal of three of the individual defendants – Superintendent Dr.
2
The plaintiffs in the case at bar are Jonathan, Doug and Robin Morgan (―the Morgans‖),
Michael, Kevin, Jim and Sunny Shell (―the Shells‖), Michaela, Christine, Bailey and Malcolm
Wade (―the Wades‖), and Stephanie M. and Sherrie Versher (―the Vershers‖) (jointly,
―Plaintiffs‖).
3
The current live pleading is Plaintiffs‘ Second Amended Complaint. R.1530.
4
188 pages comprised the complaint and 198 pages comprised the application for a temporary
restraining order.
3
Doug Otto, Assistant Superintendent Carole Greisdorf and Security Police
Specialist John Beasley – all on the basis of qualified immunity. R.2882 and 3238.
In this appeal, there are fewer factual allegations for this Court to consider because
this appeal only involves events that occurred at Thomas Elementary (where
Swanson was principal) and Rasor Elementary (where Bomchill was principal).
R.687 and 1540 [2d Amend. Compl. ¶¶2.15 and 2.19]. Finally, this Court and the
lower court have already upheld the facial constitutionality of Plano ISD policies
restricting student-to-student distribution of non-curricular materials that were at
issue in this litigation. Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740 (5th Cir.
2009); Mag. J. Rpt. & Rec. (September 3, 2010), Civil Action No. 4:04-CV-447
(E.D. Tex.).
Relying on Morse v. Frederick, 551 U.S. 393 (2007), as well as a host of
other cases, Swanson and Bomchill filed their motion to dismiss based on qualified
immunity. R.3549; R.3790 (response) and 3835 (reply). At that time, the ―rigid
order of battle‖ rule established in Saucier v. Katz, 553 U.S. 194 (2001), governed.
This rule, not modified until Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808
(2009), required Swanson and Bomchill to address the underlying constitutional
question first, even though that issue is much more difficult than the issue
involving ―clearly established law.‖ Obedient to the requirements of Saucier,
Swanson and Bomchill argued first that the First Amendment does not apply to
4
restrictions on the distribution of non-curricular materials by elementary school
students to their classmates during the school day and, second, that the law was not
clearly established.
The magistrate judge recommended denial of Swanson‘s and Bomchill‘s
motion (S.R.103), and Swanson and Bomchill filed timely objections. S.R.122 and
232; S.R.347 (response) and 430 (reply).
Before the district court had ruled on Swanson‘s and Bomchill‘s objections,
the Supreme Court issued Pearson, emphasizing: (1) that public officials ―are
entitled to rely on existing lower court cases without facing personal liability for
their actions‖ even if those cases come from other circuits or states, and (2) that the
law is not clearly established when a split develops after the events that gave rise
to the lawsuit. Id. at 822-23. Swanson and Bomchill filed a supplement to their
objections, bringing Pearson to the attention of the court. S.R.497; S.R.545
(response).
The magistrate withdrew his earlier report (S.R.559) and issued a revised
report, still recommending that the motion be denied. See R.E.560. Swanson and
Bomchill filed objections to the revised report. S.R.579; S.R.642 (response). The
district court adopted the magistrate‘s revised report (R.E.687 (March 30, 2009))
and Appellants filed their notice of appeal. R.E.689 (March 31, 2009).
5
A panel of this Court affirmed the decision of the district court. Morgan v.
Swanson, 610 F.3d 877 (June 30, 2010), revising its opinion on July 1st. Swanson
and Bomchill filed a timely petition for rehearing en banc. The panel issued an
amended opinion. 627 F.3d 170 (November 29). This Court granted rehearing en
banc. 628 F.3d 705 (December 17).
6
STATEMENT OF THE FACTS
I. SWANSON AND BOMCHILL WERE FOLLOWING POLICY, NOT ACTING BASED

ON ANY HOSTILITY TOWARD RELIGION.
The allegations in this case are lengthy, repetitive and vague. The basic
storyline, however, is fairly straightforward. Plaintiffs allege that Swanson and
Bomchill, elementary school principals in Plano ISD, restricted the distribution at
school of non-curricular, religious materials to their elementary-age students
(second through fifth grade) based on the religious content of the materials.
Plaintiffs, all elementary school students in approximately second through fifth
grade5, allege that they had a First Amendment right to distribute the non-
curricular, religious materials to their classmates during school regardless of
whether other students or their parents had consented to the distribution.
A. Swanson’s and Bomchill’s acted not out of any personal hostility

toward religion, but in conformity with school policy, supervisors’
directions and lawyers’ advice.
This case has been mischaracterized as part of a ―War on Christmas.‖ 6 The
factual allegations in Plaintiffs‘ Complaint, however, do not evince any hostility on
the part of Swanson or Bomchill toward religion, toward Christians, nor toward
Christmas. Plaintiffs‘ complaint does not allege that Swanson or Bomchill acted
5
Plaintiffs clarified that they are not alleging any claims based on parent-to-parent distribution of
religious materials. R.3541-42.
6
See, e.g., JOHN GIBSON, THE WAR ON CHRISTMAS: HOW THE LIBERAL PLOT TO BAN THE
SACRED CHRISTIAN HOLIDAY IS WORSE THAN YOU THOUGHT 55-75 (Sentinel 2005), which
devotes an entire chapter to this litigation.
7
out of a personal animosity toward religion. Plaintiffs do not allege that Swanson
or Bomchill acted from any personal hostility toward religion7; only that they were
acting pursuant to Plano ISD policy and supervisors‘ instructions. R.1543 [¶3.10].8
The school district‘s lawyers were advising the supervisors. R.1592 [¶6.266].
Plaintiffs allege that Swanson and Bomchill were poorly trained. R.1536 [¶1.13];
1546 [¶5.16].9 Plaintiffs allege that the motivation behind the direction and
training given to Swanson and Bomchill was that students in elementary schools
7
Plaintiffs‘ complaint generally alleges ―viewpoint discrimination,‖ a conclusory statement open
to varying interpretations. Swanson and Bomchill have consistently interpreted Plaintiffs‘
vague allegation of ―viewpoint discrimination‖ in accordance with the factual allegations in
Plaintiffs‘ complaint that Swanson and Bomchill, in accordance with Plano ISD policy and their
supervisors‘ instructions, restricted the distribution of religious materials and were motivated by
concern that the religious materials might offend other students and their parents or might cause
a violation of the Establishment Clause. See, e.g., R.258 [C. Wade Aff. ¶60] and 288 and 291 [D.
Morgan Aff. ¶¶54 and 63]. In response to Swanson‘s and Bomchill‘s petition for rehearing,
Plaintiffs allege that Swanson and Bomchill restricted religious speech because they disagreed
with Plaintiffs‘ viewpoint. Resp. to Pet., at 13. The factual allegations, however, do not support
this new claim that Swanson or Bomchill acted out of ill will or animus toward or disagreement
with religion or Christianity. Plaintiffs appear to be attempting to inflame the Court by
introducing new allegations of religious hostility, which are not part of Plaintiffs‘ complaint and
are not part of this case.
8
This allegation is repeated in at least thirty-three (33) separate paragraphs of Plaintiffs‘
complaint. Id. [¶3.11]; 1545 [¶5.9-.10]; 1554 [¶6.75]; 1558-60 [¶¶6.100-.102, 6.107, 6.112];
1579 [¶6.208]; 1582-83 [¶6.217-.220]; 1585-86 [¶¶6.229, 6.231, 6.234]; 1598-99 [¶¶6.300-.305,
6.309]; 1601-03 [¶¶6.325, 6.330, 6.337]; 1615 [¶6.403]; 1620-23 [¶¶6.438, 6.446, 6.452-.453].
Nowhere in Plaintiffs‘ complaint is there a single, fact-specific allegation which indicates any
anti-religious animus on the part of Swanson and Bomchill.
9
Plaintiffs‘ complaint is that Swanson and Bomchill were poorly trained principals who were
being directed by uninformed supervisors who were advised by incompetent lawyers.
8
constitute a ―captive audience.‖ See, e.g., R.1569 and 1571-72 [¶¶6.162, 6.171 and
6.175].10
B. The policy to which Swanson and Bomchill conformed sought to

restrict the distribution of religious materials in order to avoid
offending other students and parents and to avoid any possible
Establishment Clause claims.
The allegations indicate that the Plano ISD officials, especially the upper
administration (Swanson‘s and Bomchill‘s supervisors11), directed Swanson and
Bomchill out of a concern that the other students constituted a ―captive audience‖
and that permitting the distributions might constitute a Constitutional violation.
R.1569 and 1571-72 [¶¶6.162, 6.171 and 6.175] (―captive audience‖); R.1658
[Exh. 6]. Counsel for Plaintiffs, Mr. Shackelford, conceded this when he
characterized the school officials‘ conduct as based on a mistaken belief that
exclusion of religious materials is required to comply with the Establishment
Clause. R.1658 [Exh. 6]. As Judge Brown noted during the temporary restraining
order hearing at the commencement of this litigation, ―I‘ve had several 1st
Amendment cases involving the Plano School District in the past. And I know
10
Even when alleging their entitlement to punitive damages, Plaintiffs never allege any
intentional misconduct, hostility, malice, ill will or animosity toward religion in general or
Christianity in particular. R.1636-37 [¶¶17.4-17.5]. Plaintiffs instead merely allege in a
conclusory manner that the individual defendants acted with reckless and callous indifference to
the lawful and constitutionally protected rights of Plaintiffs. Id.
11
Swanson‘s and Bomchill‘s supervisors, Superintendent Doug Otto and Assistant
Superintendent Carole Griesdorf, were granted qualified immunity. R.2882 and 3238.
9
they try to follow the law, but that‘s not always easy.‖ R. [TRO Hearing
Transcript, pp. 22 and 41].
As alleged, this case is about confusion regarding the interplay between the
courts‘ Establishment Clause jurisprudence and the special role that public schools
play in the education of elementary school children. Swanson and Bomchill were
obedient employees, not protagonists in an anti-Christian campaign. If the ―War
on Christmas‖ exists, Lynn Swanson and Jackie Bomchill are civilians caught in
the cross-fire.
II. PLAINTIFFS ALLEGE RESTRICTIONS ON RELIGIOUS MESSAGES AT THOMAS

ELEMENTARY.
A. Swanson allegedly directed teachers to restrict the distribution of
religious gifts during classroom winter-break parties.
The Morgans and the Wades allege that from 2001 to 2003, Swanson,
principal of Thomas Elementary, prevented Plaintiffs from distributing religious
items in gift bags at the school‘s December winter-break parties, but permitted
students to distribute non-religious items.12
Plaintiffs allege that, before 2001, students at Thomas Elementary were
permitted to give gift bags to their classmates at the December winter-break party.
R.1553 and 1561 [¶¶6.65-6.67 and 6.115]. The Wades allege that in December
12
Swanson is alleged to have taken action only regarding activities in the school during the
school day. With regard to Bomchill, all but one of her actions is alleged to have taken place in
the school during the school day. The only exception with respect to Bomchill involved the
supervision of children as they were leaving school at the end of the school day.
10
2001, Swanson instructed classroom teachers to inspect gift bags brought by
students to determine whether or not they contained religious materials. R.1554
[¶6.73]. Swanson allegedly instructed the teacher‘s, pursuant to Plano ISD policy
and custom, to prevent the distribution of religious material. R.1554 and 1559
[¶¶6.75 and 6.106-6.107]. The Wades allege that Michaela Wade‘s gift bag was
searched by her teacher and, when it was discovered that Michaela‘s gift bag
contained religious pencils, Michaela was prevented from distributing the pencils
to her classmates. R.1555 [¶¶6.77-6.80]. Michaela‘s pencils contained the
religious message: ―Jesus is the Reason for the Season.‖ R.1555 and 1559 [¶¶6.80
and 6.104]. Plaintiffs allege that students with secular gifts were permitted to
distribute their gifts. R.1559 [¶¶6.103 and 6.105].
The Morgans allege that in December 2003, Swanson prevented Jonathan
Morgan, a third-grade student, from distributing, to his classmates, candy cane
shaped pens with an attached religious message regarding the alleged religious
origin of the candy cane. See R.1549 [¶6.22] and 1573-1603 [¶¶6.179-6.337].
In anticipation of the party, Doug and Robin Morgan, Jonathan‘s parents,
communicated with Plano ISD officials to learn the policies of Plano ISD
regarding student-to-student distribution of religious materials. R.1576 [¶6.198].
The Morgans contacted Carole Griesdorf, Assistant Superintendent, who directed
them to Swanson. R.1578 [¶6.202].
11
The Morgans met with Swanson on December 4, 2003, and expressed their
objections to Plano ISD‘s policies relating to the distribution of religious materials
during the winter-break parties and the exclusion of references to the party as a
―Christmas‖ party. R.1580 [¶6.211]. Swanson replied that parents and volunteers
are prohibited by Plano ISD policy from using symbols that would represent
Christmas or the Christian religion during the winter-break party. Id. Plaintiffs
allege that the exclusion applied generally to religious celebrations, not just
Christian celebrations. R.1583-84 [¶6.224]. The Morgans discussed with Swanson
the alleged events from December 2001, when school officials prevented Michaela
Wade from distributing religious gifts to her classmates during the winter-break
party. R.1582 [¶¶.6.216-6.218]. Swanson allegedly stated that she was aware of
the incident, that school personnel had acted properly, that the restriction was in
accordance with the policy of Plano ISD, and that this restriction had been
approved by the ―highest levels‖ of Plano ISD. R.1582 [¶6.218]. Swanson
allegedly stated that Plano ISD policy prohibits one student from distributing to
another student, while on school property, any material that is of a religious nature
or that contains a religious viewpoint. R.1582-83 [¶6.220]. Swanson allegedly told
the Morgans that Jonathan would not be permitted to distribute candy canes with
the attached Christian message during the winter-break parties. R.1583 [¶6.222].
The Morgans asked Swanson to verify her understanding of Plano ISD policy.
12
R.1584 [¶6.227]. Swanson allegedly called them on December 8, 2003, and
verified that her understanding of the policy had been confirmed by the
administration. R.1585-86 [¶¶6.230-6.234].
After their meeting with Swanson, the Morgans sent another email to
Griesdorf. R.1586-87 [¶6.235]. Griesdorf confirmed Swanson‘s understanding of
the policy, and stated that students could not distribute anything of a religious
nature to their classmates during the winter-break parties or at any time while on
school property. R.1587 [¶6.237].
After receipt of Griesdorf‘s email, Plaintiffs, through their attorney, Mr.
Shackelford, sent a demand letter to Swanson. R.1591-92 [¶6.264]. In the letter,
Shackelford sought to inform her that, in his opinion, the Constitution precluded
the restrictions on Jonathan Morgan‘s distribution of religious materials during the
winter-break parties. R.1656-57 [Exh. 6]. Shackelford admitted that actions ―to
suppress Christmas celebrations demonstrate that many school officials mistakenly
believe that allowing seasonal religious expression‖ would violate the
Establishment Clause. R.1658 [Exh. 6].
Although Shackelford‘s letter was addressed to Swanson, the response to the
letter came from the school district‘s attorney, Mr. Richard Abernathy, who
explained why Plano ISD did not believe that the restrictions at Thomas
Elementary violated the Constitution. Abernathy explained that the ―holiday party
13
at issue is a classroom activity that has a clearly defined curricular purpose to teach
social skills and respect for others in a festive setting. This activity is highly
structured, supervised and regulated.‖ R.215 [Orig. Compl., Exh. 7].13 He
explained that the Third Circuit had recently re-affirmed,
under almost identical facts to those present here, that a

school‘s restrictions on an elementary school student‘s
distribution of candy canes and pencils containing a
religious message during a classroom holiday party did
not violate the First Amendment. Walz v. Egg Harbor
Township Board of Edu., 342 F.3d 271 (3d Cir. 2003).
Id. Shackelford did not respond to Abernathy‘s letter.
On the day of the December 2003 winter-break party, Jonathan Morgan
attempted to bring and distribute the candy canes with the attached religious
message. R.1594-95 [¶¶6.282-6.286]. Jonathan, and his father, were told that
Jonathan could distribute his gift bags on the information table in the school library
or he could distribute them on a public sidewalk or off school property, but not in
the classroom. R.1596 [¶6.289].
B. Swanson was concerned about the alleged banning of “Merry

Christmas” messages on greeting cards and the alleged banning of
the colors red and green.
Swanson‘s actions indicate that she was attempting to adhere to Plano ISD
policy and that she was concerned about allegations that religious messages or
13
Exhibit 7 to Plaintiffs‘ Second Amended Complaint appears to have been misplaced. The
citation is to the copy attached to Plaintiffs‘ Original Complaint.
14
themes were being unnecessarily discouraged. When Swanson was informed that
certain teachers were instructing their students not to write ―Merry Christmas‖ on
greeting cards, Swanson said that she would investigate the matter. R.1580-81
[¶6.212].14 Swanson also stated that she would investigate allegations that the
colors red, green and red/green plaid were prohibited in the decorations, plates,
cups, napkins, etc. for winter-break parties. R.1563 and 1580 [¶¶6.124 and
6.211].15
III. PLAINTIFFS ALLEGE RESTRICTIONS ON RELIGIOUS MESSAGES AT RASOR

ELEMENTARY.
A. Bomchill allegedly restricted the distribution of religious drama

tickets in order to avoid offending other students.
The Vershers allege that, in January 2004, Bomchill, then-principal of Rasor
Elementary, prohibited Stephanie Versher, a fifth-grade student, from distributing,
to her classmates, tickets to a religious drama. See R.1609-1610 [¶¶6.369-6.374];
see also R.E.560 [Mag. J. Rpt. & Rec.]. Neither Stephanie nor her mother, Sherrie
Versher, nor their lawyers made any attempt to present the religious drama tickets
14
The panel mentions this incident involving greeting cards, but fails to note that Swanson
neither encouraged nor condoned the actions of the alleged teachers. To the contrary, Swanson
indicated that she would investigate the allegations. R.1580-81 [¶6.212].
15
Plaintiffs allege that the guidelines are attached to their complaint as Exhibit 3. R.1580
[¶6.211]. Exhibit 3, which contains guidelines for parents assisting classroom teachers, does not
contain any such instructions. R.1651 [Exh. 3]. Plaintiffs presumably mean Exhibit 12, which
contains guidelines relating to school parties. R.1669 [Exh. 12]. Exhibit 12, however, also does
not contain any prohibitions on ―Christmas‖ colors. Id. Exhibit 12 makes no reference to items
that are green, red or plaid. It simply says to bring white plates and napkins.
15
to Bomchill for prior review, as required by Plano ISD policy. R.1610 [¶6.372];
R.412 [Plano ISD Policy FNAA (Local)].16
While at school, Stephanie spoke with various classmates about the religious
drama and passed out tickets to those students who expressed an interest in the
drama. R.1609 [2d Amend. Compl. ¶6.371]. The Vershers allege that, when
Bomchill spoke with Sherrie Versher about the drama tickets, Bomchill indicated
that the tickets could not be distributed because other students might disagree with
the Christian viewpoint and complain. R.1614 [¶6.396]. Bomchill did not prohibit
Stephanie from speaking to her classmates about the drama while at school nor did
Bomchill prohibit Stephanie from distributing the tickets off campus.
B. Bomchill allegedly restricted the distribution to students of pencils

containing a religious imprint.
The Vershers allege that on January 16, 2004, Bomchill prevented Stephanie
Versher from distributing religious items (pencils with a religious message) at her
half-birthday party in the school cafeteria and in front of the school, on school
property at the end of the school day. See R.1610-1623 [¶¶6.375-6.453]. The
Vershers allege that Bomchill permitted the distribution of non-religious items at
birthday parties. See, e.g., R.1611 [¶6.379]. Neither Stephanie nor her mother,
Sherrie Versher, nor their attorneys attempted to present the pencils to Bomchill
16
The requirement of prior submission has been declared constitutional by the magistrate. Mag.
J. Rpt. & Rec. (September 3, 2010), Civil Action No. 4:04-CV-447 (E.D. Tex.). The policy also
provides an appeal process which Plaintiffs did not use. R.412.
16
for review until just before the start of the party. R.1612 [¶¶6.388-6.389]. Plano
ISD policy required that materials be submitted for review at least three days prior
to the proposed date of distribution. See R.412 [Plano ISD Policy FNAA
(Local)].17
On the day of the party, Sherrie Versher took the brownies and two sets of
pencils (one set having a Christian imprint) to Bomchill‘s office. R.1612 [2d
Amend. Compl. ¶6.389]. Before arriving at Bomchill‘s office, Security Police
Specialist John Beasley handed Sherrie Versher a letter accusing her of distributing
material to students on school property and threatening her with legal action.
R.1613 [¶6.391]. After he gave her the letter, he escorted her to Bomchill‘s office.
Id. [¶6.394].
Bomchill allegedly accused Sherrie Versher and her daughter of distributing
the religious drama tickets on school property in violation of Plano ISD policy and
threatened them with legal action if they did not cease violating district policy.
R.1613-14 [¶¶6.395 and 6.397]. Bomchill also allegedly stated that Stephanie
could not distribute the religious pencils during the birthday party, but could
distribute the other pencils. R.1614-15 [¶¶6.402-6.403]. In the middle of the
17
The Vershers allege that Sherrie Versher attempted to meet with Bomchill the day before the
party to discuss the distribution of brownies. R.1612 [¶6.388]. Sherrie Versher did not attempt to
meet with Bomchill about the pencils until the day of the party, just before it was going to begin.
See R.1612-13 [¶¶6.389, 6.399 and 6.412-14]. The panel mistakenly asserts that Sherrie Versher
attempted to meet with Bomchill the day before to discuss the pencils. See Morgan, 627 F.3d at
174.
17
discussion, Sherrie Versher stepped into the hallway and called her attorney to
discuss legal restrictions that could be placed on the distribution of the religious
pencils. R.1615 [¶6.406]. After consulting with her attorney, Sherrie Versher
expressed no further complaint. See R.1615-16 [¶¶6.407-6.411]. As she left the
school office, Versher ―thought out loud to herself ‗Satan is in the building.‘‖
R.1616 [¶6.413].
Sherrie Versher then went to the birthday party in the cafeteria where
Stephanie passed out the other pencils. R.1616-17 [¶¶6.414-6.419]. After the party
was over, Sherrie Versher was escorted from the building by Beasley who
allegedly falsely accused her of creating a disturbance. R.1617 [¶6.421].18
Plaintiffs allege that two City of Plano police pulled Sherrie Versher over after she
drove away from the building and questioned her about her ―Satan is in the
building‖ comment. R.1617-18 [¶6.422]. Plaintiffs do not allege that Bomchill had
any involvement in calling the City police.
At the end of the school day, Sherrie Versher walked to Rasor Elementary to
meet her daughters as they left school. R.1620 [¶6.437]. Stephanie was outside the
18
The district court granted Beasley qualified immunity. R.2906-07 and 3238. The magistrate
stated, ―Mr. Beasley provides security for PISD, and it appears that after Ms. Versher had
audibly uttered ‗Satan is in the building‘ and continued to roam the halls of the elementary
school after her daughter‘s half birthday was completed, Mr. Beasley would be acting within his
authority to ask her to leave the building. For the safety of the students, adults should not be
allowed to roam through the halls of an elementary school without permission from the school
administration.‖ R.2905-06.
18
school building on the sidewalk and lawn amid a small group of her classmates. Id.
Stephanie was distributing the religious pencils to her classmates. Id. Bomchill
stopped Stephanie and scolded her for distributing the religious pencils on school
property. Id. [¶¶6.438-6.439]. Plaintiffs allege that Bomchill had previously
approved the distribution of the pencils ―outside the building,‖ but that after
school, Bomchill was claiming to have approved this distribution only off of Plano
ISD property. R.1620-21 [¶¶6.440-6.441]. An argument ensued as to Bomchill‘s
precise instructions. R.1621 [¶6.442]. Sherrie Versher then left. Id.
19
SUMMARY OF THE ARGUMENT

This case again requires analysis of the delicate balance
that public school administrators must strike between
protecting the First Amendment right to free speech and
avoiding endorsing religion in violation of the
Establishment Clause. The many cases and the large
body of literature on this set of issues demonstrate the
lack of adequate guidance to enable teachers and
principals to determine whether the decisions they make
comply with constitutional standards. … [D]ecisions in
such seemingly innocuous and benign activities as
elementary school parties … too often lead to protracted
litigation.
Pounds v. Katy Indep. Sch. Dist., 730 F. Supp. 2d 636, 638 (S.D. Tex. 2010)
(Rosenthal, J.).
Reasonable people continue to disagree, at times fiercely, about the
appropriate role of religion in American public life. Some believe that our public
institutions, including our public elementary schools, should leave ample room for
religious speech. Others believe that governmental institutions, and especially
public schools, should be predominantly or even exclusively secular. Still others
strive to find some middle ground between these positions.
These policy disputes frequently become constitutional disputes, as many
citizens reasonably believe that their policy prescriptions are commanded by the
Constitution. In countless threatened or filed lawsuits, advocates for a more robust
protection for religious speech and practice have argued that the First Amendment
requires that such speech or practice be permitted, while proponents of a more
20
secular public square have insisted that the Establishment Clause requires precisely
the opposite.
Federal judges have been similarly divided. For example, in Rosenberger v.
University of Virginia, 515 U.S. 819 (1995), five Justices of the Supreme Court
asserted that the Free Speech Clause required that the University of Virginia fund a
student religious publication, id. at 837, while four Justices concluded that the
Establishment Clause prohibited such funding. Id. at 864.
Caught in the middle of these policy and constitutional debates are public
officials—who are often left with little latitude for discretion, little margin for
error. When, as here, the disputes involve competing claims of permission and
prohibition, these disputes concern rival positions that leave little or no breathing
room.
Qualified immunity provides school officials with the room to make
reasonable mistakes without incurring personal, sometimes crushing, liability.
Qualified immunity, as this Court has held, gives public officials breathing space
in which to perform their duties. Hernandez ex rel. Hernandez v. Tex. Dep’t of
Protective & Regulatory Servs., 380 F.3d 872, 879 (5th Cir. 2004). This breathing
space is all the more vital where, as here, the public official must navigate not only
between the conflicting requirements of local policy and the First Amendment, but
also between the (sometimes) rival First Amendment values of free speech and
21
non-establishment. Few, if any ―bright lines exist in this complex field of First
Amendment law,‖ and thus qualified immunity protects ―school officials, who
often find themselves … subject to criticism and potential law suits regardless of
the position they take.‖ Nurre v. Whitehead, 580 F.3d 1087, 1102 (9th Cir. 2009)
(Smith, J., concurring), cert. denied, 130 S. Ct. 1937 (2010).
This breathing space provided by qualified immunity is ample: Qualified
immunity requires that the asserted constitutional right be so ―clearly established‖
that a public official‘s violation of it shows that he or she either is ―plainly
incompetent‖ or has ―knowingly violate[d] the law.‖ Malley v. Briggs, 475 U.S.
335, 341 (1986).
The issue before this Court is not, as the panel asserted, ―whether elementary
school students have any First Amendment rights,‖ Morgan v. Swanson, 627 F.3d
170, 178 (5th Cir. 2010) (emphasis added), for they most certainly do, including
the freedom from religious establishment. Rather the question is whether the scope
of their First Amendment rights were so clearly established in this specific context
that Swanson‘s and Bomchill‘s alleged conduct reflected plain incompetence or a
knowing violation of the law. More specifically, the issue before this Court is
whether it was clearly established that the First Amendment prohibits elementary
school administrators from regulating the distribution of non-curricular materials to
their students at school, based on the religious content of the non-curricular
22
materials, even where such restrictions are motivated not by any disagreement with
or animus toward the religious content, but by an effort to comply with local
school district policy and the Establishment Clause.
Swanson and Bomchill are entitled to qualified immunity because, in light of
the confusion among the federal courts regarding student speech rights, the law
was not clearly established. The panel and the district court failed to properly
analyze the precedents from other circuits because they neglected two key holdings
in Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009). First, public officials
are entitled to rely on lower court opinions from other circuits in determining what
they are permitted to do. Id. at 822-23. Second, the law is not clearly established
when the courts do not agree, even if it only became apparent that there is
confusion after the events in the case in question. Id. at 823. The district court and
the panel failed to properly consider precedents from other circuits and failed to
consider judicial opinions that were issued after the events of the case at bar.
The confusion among the courts is well illustrated by the conflict between
the panel‘s decision and the Ninth Circuit‘s recent decision in Nurre that a school‘s
restricting the performance of Ave Maria, based on its religious content, did not
violate the First Amendment. In dissenting from the denial of certiorari in Nurre,
Justice Alito noted that the Nurre decision provides a basis for discriminating
against religious speech in public schools and, moreover, ―authorizes school
23
administrators to ban any controversial student expression at any school event.‖
Nurre v. Whitehead, 130 S. Ct. 1937, 1940 (2010). Despite this strong
disagreement, the panel and the district court concluded that it ―has been clear for
over half a century‖ that discrimination against religious speech in elementary
schools is prohibited. Morgan v. Swanson, 627 F.3d 170, 171 (5th Cir. 2010). As
the Supreme Court held over a decade ago and reaffirmed in Pearson, ―If judges
thus disagree on a constitutional question, it is unfair to subject [public officials] to
money damages for picking the losing side of the controversy.‖ Wilson v. Layne,
526 U.S. 603, 618 (1999).
Moreover, Swanson and Bomchill are entitled to qualified immunity because
the decisions of the Supreme Court and this Court do not clearly establish that their
actions, in the specific context alleged, would violate Plaintiffs‘ First Amendment
rights. Neither the Supreme Court nor this Court has ever addressed this issue, and
the decisions from other federal courts have provided confused and conflicting
answers. See, e.g., Walker-Serrano v. Leonard, 325 F.3d 412, 417-18 (3d Cir.
2003) (―if third graders enjoy rights under Tinker, those rights will necessarily be
very limited.‖). The district court and the panel erred by failing to recognize that
the ―clearly established‖ inquiry ―‗must be undertaken in light of the specific
context of the case, not as a broad general proposition.‘‖ Brosseau v. Haugen, 543
U.S. 194, 198 (2004).
24
Relying on the Supreme Court‘s holdings in (1) Barnette, establishing a
right for public school students to refrain from reciting the pledge of allegiance,19
(2) Tinker, establishing a right for high school students to wear arm bands in
protest of the Vietnam War,20 and (3) Good News Club, holding that Establishment
Clause concerns arising from the presence of young children in a limited public
forum do not justify restrictions on content-based speech that is directed at their
parents,21 the district court and the panel mistakenly concluded that ―it has been
clear for over half a century that the First Amendment protects elementary school
students from religious-viewpoint discrimination.‖ Morgan, 627 F.3d at 171. The
district court and panel obfuscated the critical differences between those cases and
the facts alleged here: Barnette concerned a freedom from compulsory speech, not
the freedom to affirmatively speak; Tinker concerned limited affirmative free-
speech in high schools, not elementary schools; and Good News Club concerned
the use of a facility in proximity to elementary-age children, not the First
19
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Walker-Serrano, 325 F.3d at 417.
20
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); Morse v. Frederick, 551
U.S. 393, 403-04 (2007); id. at 429 (Breyer, J., concurring) (Tinker clearly established that
―school officials could not prohibit students from wearing an armband in protest of the Vietnam
War, where the conduct at issue did not ‗materially and substantially disrupt the work and
discipline of the school.‘‖).
21
The district court relied heavily on Good News Club v. Milford Central School, 533 U.S. 98
(2001), which held that speech may not be excluded from a limited public forum solely on the
basis of the religious nature of the speech. Id. at 105-06. As the Court‘s opinion makes clear,
that the events occurred in a school building was incidental to the issue presented to the Supreme
Court.
25
Amendment rights of such students to speak at school to other such students. The
cases relied upon by the district court and panel do not clearly establish the law in
the specific context of this case. See Brosseau, 543 U.S. at 198.
In addition, the district court and panel failed to consider the way those
supposedly clearly established precedents have been interpreted by lower courts.
In the intervening time between the district court‘s decision and the panel‘s
decision, the Supreme Court held that confusion among the lower courts as to how
to interpret a decision of the Supreme Court is strong evidence that the law was not
clearly established. Safford Unified Sch. Dist. v. Redding, __ U.S. __, 129 S. Ct.
2633 (2009).
Alternatively, Swanson and Bomchill should be granted qualified immunity
because the First Amendment does not prohibit elementary school educators from
regulating the distribution of written materials to their students at school.22 Parents
expect elementary schools to teach their children the basics of reading, writing and
arithmetic; not to serve as a battleground in the debates over religion in the public
square. The district court‘s decision undermines the ability of elementary school
22
Plaintiffs and the panel mischaracterize Swanson‘s and Bomchill‘s argument as an attack on
First Amendment speech rights for elementary school students in all contexts. This
mischaracterization is unfair and inaccurate. Even if some of the preliminary briefing in the
district court contained inartfully crafted descriptions of the issues, Appellants have always
focused on the specific facts of the case at bar and that the law is not clearly established. See
R.3561. Appellants have never taken the position that elementary school students have no First
Amendment rights. In fact, Appellants‘ reliance on Establishment Clause precedents necessarily
implies a belief that the students have some First Amendment rights.
26
educators to fulfill their duty to the families who entrust the public schools with the
education of their children, ―but condition that trust on the understanding that the
classroom will not be used to advance views that may conflict with the private
beliefs of the student and his or her family.‖ Edwards v. Aguillard, 482 U.S. 578,
584 (1987).
Defendants Swanson and Bomchill submit to this Court that they are
reasonable public officials and that their alleged conduct, even if mistaken, was not
so egregious as to reflect ―plain incompetence‖ or ―knowing violation of the law.‖
They ask this Court to provide them ample breathing space, and ample room to
make reasonable mistakes.
27
STANDARD OF REVIEW
This Court reviews de novo a district court‘s denial of a motion to dismiss
based on qualified immunity. Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008).
In analyzing qualified immunity, courts consider whether (1) the facts
alleged show that the public official‘s conduct violated a constitutional right, and
(2) the right was clearly established in light of the specific context of the case.
Scott v. Harris, 550 U.S. 372, 377 (2007). Courts may consider the second prong
(clearly established) without considering the first prong (violation of a right) if the
court grants qualified immunity. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct.
808, 818 (2009). 23
To survive a motion to dismiss asserting qualified immunity, a plaintiff must
plead sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009).
The Court should begin its analysis by identifying the allegations in the complaint
that are not entitled to the assumption of truth. Id. at 1951. The Court should not
accept as true conclusory allegations, unwarranted factual inferences, or legal
conclusions. Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010).
23
When Swanson and Bomchill filed their motion to dismiss, the Supreme Court still required
courts to determine the first prong (violation of a right) before addressing the second prong
(clearly established). Id. at 815-16.
28
ARGUMENT
I. THE ALLEGED CONDUCT OF SWANSON AND BOMCHILL IS SIMILAR TO

CONDUCT THAT COURTS HAVE PERMITTED AND EVEN REQUIRED.
In deciding whether the law was ―clearly established,‖ courts must consider
(1) cases decided in other federal circuits and by state supreme courts and (2) cases
decided both before and after the alleged violation of that law. See Pearson v.
Callahan, 555 U.S. 223, 129 S. Ct. 808, 822-23 (2009).
The district court mistakenly held that, in analyzing whether the law is
clearly established, it ―is guided solely by precedent from this Circuit as well as the
Supreme Court.‖ R.E.567. The panel mistakenly held that Swanson and Bomchill
were not entitled to rely on judicial decisions that were issued after the events of
the case at bar. Morgan v. Swanson, 627 F.3d 170, 180 n.13 (5th Cir. 2010). Both
of these holdings conflict with Pearson. 129 S. Ct. at 823.
The district court‘s and the panel‘s failure to adhere to Pearson prevented
them from recognizing the confusion among the lower courts regarding student
religious speech.
29
A. Federal courts have permitted and even required greater

restrictions on speech in elementary schools, particularly when
that speech is religious or is directed at elementary school
students.
1. Numerous courts, including five federal courts of appeals,

have upheld content-based restrictions on speech in
elementary schools without a showing that the speech was
disruptive.
Numerous federal courts have upheld—and even imposed—restrictions on
speech in elementary school based on the content of the speech without requiring
the school to show that the speech was disruptive. The Third, Fourth, Sixth,
Seventh, and Tenth Circuits, and various district courts have upheld viewpoint and
other content-based restrictions in elementary schools.
From 1970 to at least 2008, a federal court in Houston prohibited all

Houston ISD employees from allowing the distribution of religious
materials in the schools. Order (December 28, 1970) at 3-4, Guild v.
Houston Indep. Sch. Dist., No. 70-H-1102 (S.D. Tex.).
The Tenth Circuit upheld an injunction prohibiting the school district

from allowing elementary school students to have religious meetings
during school hours. The court cited the Establishment Clause and
questioned whether, in light of the circumscribed nature of elementary
education, an elementary school could have a limited public forum at
all. Bell v. Little Axe Indep. Sch. Dist., 766 F.2d 1391, 1401-02, 1404-
05 and 1407 (10th Cir. 1985).
A federal district court in Pennsylvania held that the school officials

did not violate a fifth-grade student‘s free speech rights when her
teacher refused to permit her to give an oral presentation to her class
about her belief in God. Duran v. Nitsche, 780 F. Supp. 1048 (E.D.
Pa. 1991), vacated by, 972 F.2d 1331 (3d Cir. 1992).
30
A federal district court in Michigan upheld a campus principal‘s

decision to prohibit a second-grade student from playing, during a
show-and-tell activity, a video of herself singing a religious song. The
court concluded that concern about the impact of religious messages
on a second-grade audience was a legitimate, pedagogical concern.
DeNooyer v. Livonia Pub. Schs., 799 F. Supp. 744 (E.D. Mich. 1992).
The Seventh Circuit granted qualified immunity to a campus principal

accused of disciplining an elementary school student based on the
non-disruptive messages on her t-shirts because it was not clearly
established whether, or to what extent, the speech of elementary
school students is protected by the First Amendment. Baxter v. Vigo
County Sch. Corp., 26 F.3d 728, 738 (7th Cir. 1994).
The Fourth Circuit concluded that the Supreme Court would likely
hold that a school district had violated the Establishment Clause if it
permitted a distribution table that contains Bibles and other religious
material in elementary schools. Judge Luttig, writing for the panel
majority, explained that, because of the age of the children, a neutral
policy permitting the religious materials could be (mis)perceived as
endorsement rather than as neutrality. Peck v. Upshur County Bd. of
Educ., 155 F.3d 274, 288 n.* (4th Cir. 1998).24
The Third Circuit, by the vote of an equally divided en banc court,

upheld a school official‘s decision to prohibit an elementary school
student from reading the Bible out loud to his classmates because of
the religious nature of the Bible, despite the fact that the reading
would have occurred during a time designated for reading out loud.
C.H. v. Oliva, 990 F. Supp. 341, 353 (D.N.J. 1997), aff’d in part by an
equally divided court, aff’d in part on other grounds, 226 F.3d 198
(3d Cir. 2000) (en banc).
The Third Circuit granted qualified immunity to a superintendent and

a principal who disciplined three elementary school students based on
24
While Peck permitted distribution of Bibles on a distribution table in a high school, the panel
concluded that similar distribution in an elementary school would likely be held unconstitutional.
155 F.3d at 288 n.*; see also Roe v. Tangipahoa Parish Sch. Bd., No. 07-2908, 2008 U.S. Dist.
LEXIS 32793, *10 (E.D. La. 2008) (concluding that elementary school distribution tables are
unconstitutional under Peck).
31
the content of non-disruptive statements that they made during recess.

S.G. v. Sayreville Bd. of Educ., 333 F.3d 417, 423 (2003).
The Third Circuit upheld the decision of an elementary school

principal to prohibit a student from distributing religious pencils and
candy canes with attached religious stories, during a winter-break
party. The court concluded that the religious nature of the speech
justified the exclusion. Walz v. Egg Harbor Township Schs., 342 F.3d
271, 278-79 (3d Cir. 2003).25
Even after the events alleged here, federal courts have upheld restrictions on
speech in elementary schools.
The Sixth Circuit upheld a campus principal‘s decision to prohibit a

fifth-grade elementary school student from distributing candy canes
with an attached religious message in order to avoid offending other
students and their parents. The restrictions were permissible even if
there was no danger that the religious message might be perceived as
school-sponsored. Curry v. Hensinger, 513 F.3d 570, 576-77 and 579
(6th Cir.), cert. denied, 129 S. Ct. 725 (2008).
A federal district court in Louisiana held that an elementary school

violated the Establishment Clause by permitting the Gideon‘s to
distribute Bibles to fifth-grade students outside the principal‘s office
on a voluntary basis. Roe v. Tangipahoa Parish Sch. Bd., No. 07-
2908, 2008 U.S. Dist. LEXIS 32793, *10 (E.D. La. 2008).
A federal district court in Florida prohibited virtually any religious

speech or activities that were subject to oversight or review by school
officials. See Consent Decree and Order (May 6, 2009), Doe v. Sch.
Bd. of Santa Rosa County, No. 3:08-CV-361 (N.D. Fla.).
25
The panel attempted to distinguish Walz because ―the speech restriction in Walz was not
limited to a religious viewpoint.‖ Morgan, 627 F.3d at 182 n.14. The holding in Walz, however,
did not depend on the absence of viewpoint or other content discrimination. As a later panel of
the Third Circuit explained, Walz held that ―classroom speech promoting religion or specific
religious messages presents special problems,‖ and that Walz is thus sound precedent for the
constitutionality of an elementary school restricting the ―promotion of a religious message‖
precisely because of its religious character. Busch v. Marple-Newtown Sch. Dist., 567 F.3d 89,
96 and 98 (3d Cir. 2009), cert. denied, 130 S. Ct. 1137 (2010).
32
The Third Circuit affirmed the decision of an elementary school

principal to prohibit a parent from reading the Bible during a show-
and-tell-type activity, despite the fact that the student selected the
reading and students were generally permitted to select any work they
wanted for the activity. Busch v. Marple-Newtown Sch. Dist., 567
F.3d 89, 98 (3d Cir. 2009), cert. denied, 130 S. Ct. 1137 (2010).
Judicial decisions have caused school officials to believe they were required
to prohibit all religious speech. To clarify the law, and in direct response to the
allegations here26, the Texas Legislature enacted the Schoolchildren‘s Religious
Liberties Act27 (SRLA). Governor Perry, speaking in favor of the bill at a signing
ceremony, explained that ―administrators have labored under the same misguided
rules, limiting speech for fear of ending up in the courtroom or out of a job.‖ 28
In light of the confusion among the federal courts as to how to apply the
First Amendment in the special circumstances of an elementary school, Swanson
and Bomchill are entitled to qualified immunity.
26
Plaintiffs Doug and Jonathan Morgan testified in favor of the SLRA and their lawyers helped
draft it. Audio of the witness testimony and statements by legislators is available on the
Legislature‘s website. Melissa Rogers, The Texas Religious Viewpoints Antidiscrimination Act
and the Establishment Clause, 42 U.C. Davis L. Rev. 939, 954 n.78 (2009), mentions the
involvement of Plaintiffs‘ counsel.
27
TEX. EDUC. CODE §§ 25.151 et seq.
28
Speech ―Gov. Perry‘s Remarks at the Signing of the School Children‘s Religious Liberties Act
- Sugar Land,‖ August 14, 2007, available at http://governor.state.tx.us/news/speech/5420/ (last
visited December 13, 2010). Similarly, the author, Representative Howard, stated ―There is
confusion in schools about student expression of religious viewpoints… there are uncertain,
muddied constitutional waters.‖ The Texas Commissioner of Education has raised the question
of whether the SRLA conflicts with the federal injunction against Houston ISD in Guild. See Op.
Tex. Atty. Gen. GA-0609 (2008) (declining to issue opinion on possible conflict because of on-
going federal court oversight in Guild).
33
2. Three federal courts of appeals have upheld content-based

restrictions on speech even in high schools without a
showing that the speech was disruptive.
Despite holdings that public schools have less authority to restrict speech in
high schools than in elementary schools, the Sixth29, Ninth30 and Tenth31 Circuits,
and various district courts32 have upheld content-based restrictions on speech,
particularly religious speech, in high schools without any showing that the speech
will cause a material and substantial disruption.33
In Nurre v. Whitehead, 580 F.3d 1087 (9th Cir. 2009), cert. denied, 130 S.
Ct. 1937 (2010), the court upheld a school imposed ban on religious music during
a school-sponsored limited-public forum. As Justice Alito explained in his dissent
from the denial of certiorari, Nurre arguably provides a basis for discriminating
against religious speech and, moreover, ―authorizes school administrators to ban
29
Poling v. Murphy, 872 F.2d 757, 759 and 764 (6th Cir. 1989).
30
Nurre, 580 F.3d at 1090 and 1094.
31
Fleming v. Jefferson County Sch. Dist. R-1, 298 F.3d 918, 933-34 (10th Cir. 2002).
32
Phillips v. Oxford Separate Mun. Sch. Dist., 314 F. Supp. 2d 643, 648 (N.D. Miss. 2003);
Madrid v. Anthony, 510 F. Supp. 2d 425, 434 (S.D. Tex. 2007); Caudillo v. Lubbock Indep. Sch.
Dist., 311 F. Supp. 2d 550 (N.D. Tex. 2004); Chiras v. Miller, No. 3:03-CV-2651, 2004 U.S.
Dist. LEXIS 14177, at *35 (N.D. Tex. 2004), aff’d on other grounds, 432 F.3d 606 (5th Cir.
2005).
33
Viewpoint discrimination is permitted if there is a reasonable likelihood that the speech will
cause a material and substantial disruption. Tinker, 393 U.S. at 514.
34
any controversial student expression at any school event.‖ Nurre v. Whitehead, 130
S. Ct. 1937, 1940 (2010).
In Fleming v. Jefferson County Sch. Dist. R-1, 298 F.3d 918, 933 (10th Cir.
2002), the court upheld a policy that generally permitted students to choose the
content of the message placed on a tile, but specifically prohibited religious
messages. The court concluded that school districts have a ―legitimate interest in
avoiding religious controversy and disruption resulting from the posting of
religious speech.‖ Id.
Fleming and Nurre both demonstrate the enduring concern that religious
speech can undermine a school‘s basic educational mission—even in high schools.
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988).
B. It is unclear whether or to what extent the Free Speech Clause

protects affirmative student speech in elementary schools—
especially if the speech is religious.
Tinker established certain free speech rights in the high school context.34 At
least two circuit courts of appeal have expressed doubt as to whether, or to what
extent, Tinker should be applied in the elementary school context.
The Third Circuit concluded that, at a certain point, a school child may be so
young as to not have affirmative speech rights, ―[w]here that point falls is subject
34
Before Tinker, it was not clear ―that students had any affirmative free speech rights in public
schools.‖ Kristi L. Bowman, The Civil Rights Roots of Tinker’s Disruption Tests, 58 AM. U.L.
REV. 1129, 1130 (2009) (emphasis added).
35
to reasonable debate.‖ Walker-Serrano, 325 F.3d at 417. In any case,
―[e]lementary school officials will undoubtedly be able to regulate much – perhaps
most – of the speech that is protected in higher grades.‖ Id. at 417-18; see also
S.G., 333 F.3d at 423.
The Seventh Circuit has expressed doubt as to whether the First Amendment
right to engage in protest demonstrations at school extends to eighth graders.
Brandt v. Bd. of Educ. of City of Chicago, 480 F.3d 460, 466 (7th Cir.), cert.
denied, 128 S. Ct. 441 (2007); see also Nuxoll v. India Prairie Sch. Dist. #204, 523
F.3d 668, 673 (7th Cir. 2008) (―If the schoolchildren are very young … the school
has a pretty free hand.‖); Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1538
(7th Cir. 1996) (Manion, J.) (―The Supreme Court has not expressly considered
whether the free expression rights first announced in Tinker extend to grade school
children.‖); Baxter, 26 F.3d at 738 (rejecting a free-speech claim by an elementary
school student and noting that ―[s]he was at least several years younger than the
youngest student in Tinker‖).
Even outside these two circuits, courts have refused to require strict content-
neutrality in elementary schools, but instead have permitted or even required
content-based restrictions on speech—especially religious speech. The elementary
school situation is different—and it merits different treatment for at least three
reasons.
36
1. Elementary school events are pervasively “school-

sponsored.”
Public schools are permitted to regulate student speech during ―school-
sponsored‖ or ―curricular‖ events. Some courts have concluded or implied that
events at elementary schools are pervasively ―school-sponsored‖ or ―curricular.‖
See, e.g., Walker-Serrano, 325 F.3d at 417-18 (on the playground during recess);
S.G., 333 F.3d at 420 (during recess). Indeed, this Court has already implicitly
held in the case at bar that the term ―curricular‖ should be given a broad meaning
in the elementary school context. See Morgan v. Plano Indep. Sch. Dist., 589 F.3d
740, 747 (5th Cir. 2009) (restrictions on student speech in elementary school
hallways and cafeterias serve a legitimate educational purpose).
The events in the case at bar all occurred during what were arguably
―school-sponsored‖ times.35 Plaintiffs allege that their rights were violated by
restrictions on the distribution of religious materials during in-class winter-break
parties, in-school birthday parties, at school during the school day, and as the
students left school at the close of the school day. Walz held that in-class, winter-
35
The panel mistakenly concluded that Swanson and Bomchill did not raise this argument in
their appellate brief. Morgan, 627 F.3d at 175 n.7. Swanson and Bomchill, however, have
consistently pointed out that it is not clearly established that the facts of Walz, where a virtually
identical winter-break party was held ―school-sponsored‖ or ―curricular,‖ should be
distinguished from the facts alleged in the case at bar. See, e.g., Appellants‘ Brief, p. 43 (―Even if
it is possible to distinguish Walz from the case at bar, … it was not clearly established that Walz
should be distinguished.‖). In the context of qualified immunity, it is not Swanson and
Bomchill‘s burden to prove that Walz is controlling; rather, it is Plaintiffs‘ burden to demonstrate
that it was clearly established that Walz does not apply.
37
break parties were ―school-sponsored‖ for purposes of the student speech
jurisprudence. 342 F.3d at 279-80. S.G. and Walker-Serrano permitted restrictions
on student speech during recess. Walker-Serrano, 325 F.3d at 417-18; S.G., 333
F.3d at 420. Moreover, the ―school-sponsored‖ requirement has been further
expanded by the Supreme Court‘s decision in Morse v. Frederick, 551 U.S. 393,
401 (2007) (concluding that a school ―field trip‖ to the street adjacent to the school
was school-sponsored).
The in-class winter-break parties were at least arguably ―school-sponsored‖
as that term is used in the student speech jurisprudence. The in-class winter-break
parties occurred in the classroom during the normal school day (R.1553 [2d
Amend. Compl. ¶6.69]), were supervised by the individual teachers (see, e.g.,
R.1554 [¶6.73]), organized and conducted by designated volunteer parents (R.1651
[Exh. 3]), and subject to various restrictions regarding the amount and types of
food and other materials that were distributed (R.1651 [Exh. 3] and 1669-70 [Exh.
12]). Plano ISD‘s attorneys wrote that the ―holiday party … is a classroom activity
that has a clearly defined curricular purpose,‖ and specifically noted the factual
similarity between the winter-break parties at Thomas Elementary and the winter-
break parties in Walz. R.214 [Orig. Compl., Exh. 7].
The in-class birthday parties were at least arguably ―school-sponsored‖ as
that term is used in the student speech jurisprudence. The in-school birthday
38
parties occurred in the classroom or cafeteria during the normal school day
(R.1611 [¶6.377]), were supervised by the individual teachers (cf. R.1611
[¶6.380]), and were subject to certain customs and practices regarding what could
be distributed during the birthday party (R.1610-11 [¶6.376]; see also 1612
[¶6.388]).
The distribution of drama tickets during the school day and the distribution
of religious pencils at the close of the school day are also arguably ―school-
sponsored‖ as that term is used the student speech jurisprudence. As the Supreme
Court explained in Morse, a student cannot ―stand in the midst of his fellow
students, during school hours, at a school-sanctioned activity and claim he is not at
school.‖ 551 U.S. at 401. The Supreme Court went on to explain that there
remains some question as to whether a school district can even regulate student
speech even ―off-campus.‖ Id. That issue was not before the Supreme Court in
Morse, id., and is not before this Court in the case at bar.
Stephanie Versher distributed religious drama tickets to her classmates while
at school, either in class, in the hallway, in the cafeteria or at recess. R.1609-10 [2d
Amend. Compl. ¶6.371, 6.374-6.375]. In each context, Stephanie was undoubtedly
standing in the midst of her fellow students, during school hours, and at a school-
sanctioned activity. Morse, 551 U.S. at 401.
39
In regard to the after-school distribution of religious pencils, Defendants
acknowledge that the issue is closer. Based on the factual allegations in Plaintiffs‘
complaint, Stephanie‘s speech was arguably within the ambit of the school‘s
control. Stephanie was on school property, in front of the school building, just
after the close of the school day. R.1620-21 [¶¶6.437-6.442]. The Eighth Circuit
recently upheld a permanent injunction, premised on the Establishment Clause,
prohibiting a school district from permitting the distribution of Bibles on school
property, including at the close of the school day. Roark v. South Iron R-1 Sch.
Dist., 573 F.3d 556, 560-61 (8th Cir. 2009). In light of Walz, Morse and cases like
Roark, it was not clearly established that the after-school distribution of religious
pencils in the case at bar could not be understood to be occurring during a ―school-
sponsored‖ time.
2. Elementary school students are less likely to perceive the

difference between distribution by school officials and
distribution by third-parties during school events.
The courts have emphasized that elementary school students are less likely
to perceive the difference between distribution by school officials and distribution
by third-parties during school events. The Third Circuit explained that, in an
elementary school classroom, the ―line between school-endorsed speech and
merely allowable speech is blurred.‖ Walz, 342 F.3d at 277. This blurring of the
source of the speech occurs both in the ―young, impressionable students‖ as well as
40
with ―their parents who trust the school to confine organized activities to legitimate
and pedagogically-based goals.‖ Id. The Tenth Circuit was more emphatic:
―Elementary schoolchildren are vastly more impressionable than high school or
university students‖ and are ―unlikely to distinguish any difference between school
sponsorship and mere faculty supervision.‖ As a result, the mere ―presence of
even one teacher would produce the same aura of school authorization and
approval.‖ Bell, 766 F.2d at 1404-05 and 1407.
Swanson and Bomchill could have reasonably believed that their elementary
school students would perceive religious materials passed out to them during
school-sponsored events as bearing the imprimatur of school officials, particularly
since all such materials were subject to prior review by the campus principal and
were to be distributed during times that the students are under the supervision of
school officials.
3. Avoiding conflict and avoiding the possibility of an

Establishment Clause violation are legitimate, pedagogical
purposes in elementary schools.
As other courts have noted, elementary schools have a ―legitimate,
pedagogical purpose‖ in seeking to limit religious speech that might offend other
students (or parents) or violate the Establishment Clause:
The school‘s desire to avoid having its curricular event

offend other children or their parents, and to avoid
subjecting young children to an unsolicited religious
41
promotional message that might conflict with what they

are taught at home qualifies as a valid educational
purpose.
Curry, 513 F.3d at 579; Walz, 342 F.3d at 277 (―parents … trust the school to
confine organized activities to legitimate and pedagogically-based goals‖).
Plaintiffs allege that Swanson and Bomchill acted pursuant to Plano ISD policy
and instructions from their supervisors. R.1543 [2d Amend. Compl. ¶3.10]. This
policy and these instructions, in turn, were motivated by a concern that elementary
school students constitute a ―captive audience‖ and that the religious messages
might offend other students. R.1569 and 1572 [¶¶6.162 and 6.175]; see also
R.1658 [Exh. 6] (letter from Plaintiffs‘ counsel).
II. NEITHER THE SUPREME COURT NOR THIS COURT HAS CLEARLY
ESTABLISHED THAT SWANSON’S AND BOMCHILL’S ALLEGED CONDUCT
WOULD VIOLATE PLAINTIFFS’ RIGHTS.
Neither the Supreme Court nor this Court has ever held that the First
Amendment prohibits elementary school administrators from regulating the
distribution of non-curricular materials to their students at school, based on the
religious content of the non-curricular materials. Neither Plaintiffs, nor the district
court, nor the panel has identified any decision from the Supreme Court or this
Court that clearly establishes Plaintiffs‘ alleged First Amendment right in the
specific context of this case. Instead, Plaintiffs attempt to circumvent their lack of
clearly established precedents (1) by claiming that they can rely on a broad,
42
―general proposition‖ to clearly establish the law and (2) by claiming that various
unrelated or marginally related precedents clearly established the ―general
proposition‖ that elementary school students have First Amendment rights. Since
Plaintiffs‘ arguments are without merit, Swanson and Bomchill are entitled to
qualified immunity.
A. The alleged conduct must be examined in light of the specific

context of the case, not as a broad general proposition.
―It is important to emphasize that [the clearly established] inquiry ‗must be
undertaken in light of the specific context of the case, not as a broad general
proposition.‘‖ Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The specific
context of the case is as follows: (1) the events occurred in elementary schools; (2)
during the school day; (3) and involved the distribution of religious materials to
elementary school students; (4) without their parents‘ consent. Swanson and
Bomchill are alleged to have acted (5) pursuant to the policy and custom of the
school district; and to have acted (6) pursuant to instructions from their supervisors
who were (7) being advised by the school district‘s lawyers. Moreover, Swanson
and Bomchill are alleged to have been (8) poorly trained by the district. Finally,
the school officials are alleged to have acted (9) in order to avoid offending other
students, and (10) in order to avoid the possibility of a violation of the
Establishment Clause.
43
Plaintiffs and the panel, relying on a misinterpretation of Hope v. Pelzer, 536
U.S. 730 (2002), contend that the holding that elementary school students have
some First Amendment free speech rights compels the finding that Swanson‘s and
Bomchill‘s alleged actions clearly violate the First Amendment. See Morgan, 627
F.3d at 179 n.12. To the extent Hope conflicts with Brosseau, the later decision,
Brosseau, controls. However, there is no conflict. Hope stands for the proposition
that a defendant cannot avoid liability for a constitutional deprivation under
qualified immunity by making irrational distinctions from prior case law. 536 U.S.
at 742-48. In Hope, prison officials argued that they were entitled to qualified
immunity from a cruel and unusual punishment claim because, they claimed, prior
case law prohibiting shackling a prisoner to a fence did not clearly establish that
they could not shackle a prisoner to a post. Id. at 742.
Relying on their misinterpretation of Hope, the panel takes it as clearly
established that the government can never restrict speech based on its substantive
content or the message it conveys (i.e., viewpoint discrimination). See Morgan,
627 F.3d at 180 (quoting Rosenberger v. Univ. of Va., 515 U.S. 819, 828 (1995)).
Just last year, the Tenth Circuit explained why the panel‘s approach to the question
of ―viewpoint discrimination‖ is mistaken.
At the most general level, Plaintiffs are correct that the

government usually cannot discriminate against a speaker
based upon that speaker‘s viewpoint. But in qualified
44
immunity cases, except in the most obvious cases, broad,

general propositions of law are insufficient to suggest
clearly established law. … Of course, when it comes to
qualified immunity, merely stating that the government
cannot engage in viewpoint discrimination is just about
as general as stating that the government cannot engage
in unreasonable searches and seizures.
Weise v. Casper, 593 F.3d 1163, 1167 and 1168 n.1 (10th Cir. 2010).36
The case law is unclear at this time as to the exact nature of prohibited
―viewpoint discrimination.‖ Rosenberger, 515 U.S. at 831; See, e.g., Choose Life
Ill., Inc. v. White, 547 F.3d 853, 865 (7th Cir. 2008). In some cases, ―viewpoint
discrimination‖ occurs only when the government ―adopted a regulation of speech
because of disagreement with the message it conveys.‖ Hill v. Colorado, 530 U.S.
703, 707-10 (2000) (emphasis added). However, in other cases, ―viewpoint
discrimination‖ has been analyzed without reference to whether the government
officials disagreed or had any animosity toward the message conveyed. See, e.g.,
Rosenberger, 515 U.S. at 828. From these conflicting opinions, it is clear that
―viewpoint discrimination‖ is a legal conclusion, not a factual allegation, and that
it should be interpreted in light of the factual allegations in the plaintiff‘s
complaint, not in reference to some predetermined understanding of the meaning
of the phrase. Iqbal, 129 S. Ct. at 1951; Gentilello, 627 F.3d at 544.
36
John E. Taylor, Tinker and Viewpoint Discrimination, 77 UMKC L. REV. 569, 569 (2009)
(―Courts are increasingly becoming concerned with the question of whether Tinker allows
viewpoint-based restrictions of student speech, but so far jurists have not reached agreement on
this question or even on the simpler question of what counts as viewpoint discrimination.‖).
45
Plaintiffs‘ factual allegations establish that Swanson‘s and Bomchill‘s
alleged acts of ―viewpoint discrimination‖ were motivated by concern that the
religious materials might offend other students and their parents, fear that the
religious materials might result in an Establishment Clause violation and a desire
to adhere to school district policy and the instructions of their supervisors. There
are no allegations in Plaintiffs‘ complaint that Swanson or Bomchill acted out of
any hostility or ill will toward religion or Christianity. Numerous courts have
concluded that the alleged motivations of Swanson and Bomchill represent
legitimate, pedagogical reasons for restricting religious speech in elementary
schools.
As Judge Smith on the Ninth Circuit explained in Nurre, there are no bright
lines in the complex field of student religious speech. 580 F.3d at 1102 (concurring
in grant of qualified immunity). School officials often find themselves subject to
criticism and potential law suits regardless of the position they take. Id. In such
situations, public officials are entitled to qualified immunity. Id.
B. The cases relied upon by Plaintiffs and the district court do not
clearly establish a First Amendment right in the specific context
of this case.
Plaintiffs contend that the law was clearly established in light of the
Supreme Court‘s decisions in West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1943), Tinker v. Des Moines Independent Community School
46
District, 393 U.S. 503 (1969), and Good News Club v. Milford Central School, 533
U.S. 98 (2001). Barnette, Tinker, and Good News Club do not clearly establish the
law in the specific context of this case for two reasons: (1) they are
―distinguishable in a fair way from the facts presented in the case at hand,‖
Saucier, 533 U.S. at 202; and (2) there has been continuing confusion and
uncertainty in the lower courts as to how to apply these three cases to student
speech in the elementary school context. Safford, 129 S. Ct. at 2644.
Barnette, Tinker and Good News Club do not stand for the proposition that
the First Amendment prohibits elementary school administrators from regulating
the distribution of non-curricular materials to their students at school, based on the
religious content of the non-curricular materials.
1. Prohibiting public schools from compelling students to

swear the pledge of allegiance does not clearly establish the
law in the specific context of this case.
Barnette held that public school students have a First Amendment free
speech right to refrain from reciting the pledge of allegiance. Barnette, 319 U.S. at
642; Bd. of Educ. v. Pico, 457 U.S. 853, 864 (1982) (In Barnette, ―we held that
under the First Amendment a student in a public school could not be compelled to
salute the flag.‖); Holloman v. Harland, 370 F.3d 1252, 1269 (11th Cir. 2004)
47
(Barnette ―clearly and specifically established that schoolchildren have the right to
refuse to say the Pledge of Allegiance.‖).37
This Court, like most federal courts, has recognized that the broad language
about the rights of minors contained in certain Supreme Court precedents does not
mean that the rights of minors are coextensive with those of adults. Poe v.
Gerstein, 517 F.2d 787, 789-90 (5th Cir. 1975) (―In spite of these rather broad
proclamations, the Court has specifically extended only certain first amendment,
due process and equal protection rights to minors. … [T]he state‘s authority over
children‘s activities is broader than over like actions of adults.‖ (citing Barnette
and Tinker)). In discussing whether Barnette clearly established a right of a
student to refuse to attend compulsory military training, this Court granted
qualified immunity, and explained that, in Barnette, ―the Court held that a state
could not mandate that school children pledge allegiance to the flag, since the
pledge was a forced affirmation of belief.‖ Sapp v. Renfroe, 511 F.2d 172, 178 (5th
Cir. 1975). While noting the only reported case concerning compulsory military
37
There has been prior briefing about whether it was clear that Barnette applied to elementary
school students. In light of the sparse case law, and for the reasons previously explained,
Swanson and Bomchill contend that it was not clearly established. In reference to that argument,
Swanson and Bomchill would also direct the Court‘s attention to the Supreme Court‘s discussion
of Barnette in Board of Education v. Mergens, 496 U.S. 225 (1990). In support of the Supreme
Court‘s holding that high school students are sufficiently mature that free speech standards
applicable to college-age students can also be applied to them in certain contexts, the Supreme
Court cited to Barnette as holding that there was ―no danger that high school students‘ symbolic
speech implied school endorsement.‖ Id. at 250. Aside from the right to refuse to swear the
pledge of allegiance, neither the Supreme Court nor lower courts have consistently interpreted
Barnette as clearly establishing rights in the elementary school context.
48
training affirmed that a school board could not require a student objecting on
religious grounds to complete such a course as a condition of graduation, this
Court recognized that the individual defendants were entitled to qualified
immunity. Id. (discussing Spence v. Bailey, 465 F.2d 797 (6th Cir. 1972)).
The most telling proof that Barnette does not clearly establish a right for
Plaintiffs‘ to distribute religious materials at school is that courts considering
closely analogous situations have not recognized the importance of Barnette.
Many of the cases in this area do not even cite Barnette. See, e.g., Curry, 513 F.3d
at 576-79.38 Many other cases ascribe a relatively limited significance to Barnette.
See, e.g., Walz, 342 F.3d at 280 (―elementary school students retain certain First
Amendment rights of expression‖ (citing Barnette)); Walker-Serrano, 325 F.3d at
417 (―For over fifty years, the law has protected elementary students‘ rights to
refrain from reciting the pledge of allegiance to our flag.‖). It is difficult to
understand how so many federal courts could be so confused about the application
of the First Amendment to elementary student speech if, as the panel appears 39 to
have held, Barnette clearly established those rights. Many federal judges seem to
38
Plaintiffs‘ counsel did not cite to Barnette in his letter to the school district alleging that the
district‘s policy and actions violated the First Amendment. R.1556-59 [Exh. 6]. Nor was it cited
in Plaintiffs‘ application for a temporary restraining order. R.226-43.
39
The panel mischaracterizes Swanson‘s and Bomchill‘s qualified immunity argument as
claiming that elementary school students have no First Amendment rights. Morgan, 627 F.3d at
178. Since much of the case law relied upon by Swanson and Bomchill applied the
Establishment Clause in elementary schools, the panel‘s mischaracterization of their argument is
baffling.
49
be under the impression that school children‘s First Amendment rights do not
extend to the distribution of religious materials to other such students in
elementary schools.
2. Prohibiting public schools from preventing high school

students from wearing arm bands absent an anticipated
disturbance does not clearly establish the law in the specific
context of this case.
Tinker held that high school students have a First Amendment free speech
right to wear arm bands in protest of the Vietnam War. Tinker, 393 U.S. at 513-14;
Morse, 551 U.S. at 403-04; id. at 429 (Breyer, J., concurring) (Tinker clearly
established that ―school officials could not prohibit students from wearing an
armband in protest of the Vietnam War, where the conduct at issue did not
‗materially and substantially disrupt the work and discipline of the school.‘‖).
Numerous courts have expressed caution as to whether (or to what extent)
elementary-school students enjoy ―Tinker rights.‖ Counsel for Swanson and
Bomchill have not located any decision of a federal appellate court (other than the
panel) that has held that Tinker clearly established any specific freedom-to-speak
rights for elementary school students. Instead, the courts have noted that Tinker
does not clearly establish such rights for elementary school students. As early as
1994, the Seventh Circuit noted that because the case law was both sparse and
indicated that ―age is a relevant factor in assessing the extent of a student‘s free
50
speech rights in school‖ the court could not conclude that the plaintiff‘s First
Amendment free speech right was clearly established. Baxter, 26 F.3d at 738.
In 2003, the Third Circuit held that age is a significant factor in assessing the
applicability of the First Amendment so as to call into question the appropriateness
of employing the Tinker framework to assess the constitutionality of restrictions on
the expression of elementary school students. Walker-Serrano, 325 F.3d at 416.
―No other Court of Appeals has ruled on the applicability of Tinker in this
context.‖ Id.
In the same year, the Third Circuit granted qualified immunity to a
superintendent and a principal from an elementary school student‘s free speech
claim, distinguishing Tinker and various other cases because none of the cases
―involved a school‘s restriction on a kindergartner‘s speech. Indeed, one Court of
Appeals has stated that it is unlikely that Tinker and its progeny apply to
elementary school students.‖ S.G., 333 F.3d at 423.
We need not decide in this case whether or if, under what

circumstances, a school may violate an elementary
school student‘s right to freedom of speech. For our
purposes, it is enough to recognize that a school‘s
authority to control student speech in an elementary
school setting is undoubtedly greater than in a high
school setting.
Id.
51
The Seventh Circuit‘s 1996 decision in Muller provides additional insight
into the difficulties involved in interpreting and applying Tinker. All three judges
on the Muller panel upheld the school‘s restrictions on student speech. 98 F.3d at
1542. The judges unanimously noted that the general prohibition on viewpoint-
based restrictions on speech ―is not hard and fast with public schools, especially
elementary schools.‖ Id. The judges disagreed, however, on why the school‘s
restrictions should be upheld. Judge Manion believed that Tinker flatly does not
apply to elementary school students. Id. at 1538 (Manion, J.). In contrast, Judge
Rovner would have held that Tinker does apply to elementary school students, but
in a significantly attenuated fashion. According to Judge Rovner, ―grammar
school children are highly impressionable, and school is a powerful setting where
speech is likely to make a stronger psychological impact on young minds than it
would in most other settings.‖ Id. at 1547. ―[I]t is often difficult for children to
distinguish the source of a message conveyed to them in school, or to decide what
weight to give to that message.‖ Id. Consequently, Judge Rovner upheld the
speech restrictions by interpreting Tinker as applying to elementary school students
in a vastly different fashion than to high school students.
Many aspects of the law with respect to students‘ speech, including the role
of age, are difficult to understand and apply. Hosty v. Carter, 412 F.3d 731, 739
(7th Cir. 2005) (granting qualified immunity, despite finding a constitutional
52
violation). The continuing confusion and uncertainty in the lower courts as to how
to apply Tinker to student speech in elementary schools demonstrates that the law
was not clearly established and that Swanson and Bomchill are entitled to qualified
immunity. Safford, 129 S. Ct. at 2644.
3. Case law relating to restrictions on religious speech in

limited public forums does not clearly establish the law in
the specific context of this case.
Good News Club held that speech may not be excluded from a limited public
forum solely on the basis of the religious nature of the speech. 533 U.S. at 105-06;
Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 346 (5th Cir. 2001) (describing
Good News Club as involving viewpoint discrimination in a limited public forum).
A publicly-owned building that usually serves as an elementary school can be such
a forum. See, e.g., Culbertson v. Oakridge Sch. Dist. No. 76, 258 F.3d 1061, 1064
(9th Cir. 2001) (school buildings were public forums because they functioned as
―community centers‖).
Good News Club, however, is not a student speech case. This should be
clear from the fact that Justice Thomas, who wrote Good News Club, has
elsewhere written that students do not have First Amendment free speech rights in
public schools. Morse, 551 U.S. at 419 (concurring). In Good News Club, the
Milford Central Schools permitted outside groups to use space within the school
building during non-school hours and permitted them to distribute materials to
53
parents through a school mail system. 533 U.S. at 102. Milford would not permit
religious groups to use the space (or the school mail system) for fear that there
might still be elementary-age children in the building who would be aware that the
religious groups were meeting. Id. at 103-04. Milford stipulated that it had created
a limited public forum by permitting use of the building and use of the school mail
system. Id. at 106. The Supreme Court rejected Milford‘s Establishment Clause
concerns, explaining that the events occurred during non-school hours and that
children were only permitted to attend the events with their parents‘ permission.
See, e.g., Id. at 115, 117, 117 n.6 and 117 n.7 (non-school hours); Id. at 115 (no
danger of coercion because parental consent required).
The important role played by parental permission in Good News Club has
not been lost on the lower courts. In 2004, the Sixth Circuit struck down a
restriction on use of a school mail system, holding that elementary-age students
―should know the difference between school-sponsored events and events
requiring parental permission.‖ Rusk v. Crestview Local Sch. Dist., 379 F.3d 418,
422 (6th Cir. 2004) (citing Good News Club) (emphasis added). The Sixth Circuit
also explained that there was no risk of coercion ―because the religious activities
are not school-sponsored events.‖ Id. (citing Good News Club); see also id. at 421
(because students cannot participate in activities without their parents‘ permission,
―the relevant observers are the parents.‖).
54
At all times relevant to the allegations in the case at bar, the Plaintiffs were
present at school during or in connection with school-sponsored events. The
speech at issue was not incidentally heard by students, it was specifically directed
at students.
Counsel for Swanson and Bomchill have not located any federal appellate
court that has held that any part of an elementary school, when used as such,
whether a classroom, cafeteria, hallway, or playground automatically constitutes a
limited public forum. To the contrary, the Third Circuit explained only two years
ago that ―[u]nlike parks, streets, and other traditional public fora, elementary
school classrooms are not places for unlimited debate on issues of public
importance.‖ Busch, 567 F.3d at 95. Elementary schools are not created to provide
the opportunity for private speech; they are created so teachers can educate
children. Id. Good News Club did not clearly establish a free speech right in the
specific context of the case at bar.
III. THE COURT SHOULD TREAD LIGHTLY LEST IT UNNECESSARILY INTERFERE

WITH THE TRUST IMPARTED BY PARENTS TO ELEMENTARY SCHOOLS.
School boards are uniquely local and democratic institutions. Pico, 457 U.S.
at 894 (Powell, J.). Local control of education involves democracy in a
microcosm. Id. at 891 (Burger, C.J.). Through election of school board members,
involvement in parent-teacher associations, and numerous other formal and
55
informal arrangements, parents are informed and often may influence decisions of
the board. Id. at 891 and 894. Frequently, parents know the teachers and visit the
classes. Id. at 894. It is fair to say that no single agency of government at any level
is closer to the people whom it serves that the typical school board. Id. A school
board is not a giant bureaucracy far removed from accountability for its actions; it
is truly ―of the people and by the people.‖ Id. at 891.
Public schools traditionally had the authority to discipline students and place
restrictions on them that limit the students‘ ability to engage in certain forms of
speech. Morse, 551 U.S. at 306-08 (Thomas, J., concurring). As Justice Thomas
colorfully explained,
In short, in the earliest public schools, teachers taught

and students listened. Teachers commanded, and
students obeyed. Teachers did not rely solely on the
power of ideas to persuade; they relied on discipline to
maintain order.
Id. at 412. Teachers instilled in students a core of common values and taught them
self-control. Id. The overarching authority of public schools over student speech
was altered by the Supreme Court‘s decision in Tinker. Id. at 416. However,
―because Tinker utterly ignored the history of public education, courts … routinely
find it necessary to create ad hoc exceptions to its central premise.‖ Id. at 421.
Parents, in turn, have traditionally entrusted public schools with the
education of their children but condition their trust on the understanding that the
56
classroom will not purposely be used to advance views that may conflict with the
private beliefs of the student and his or her family. Edwards v. Aguillard, 482 U.S.
578, 584 (1987).40
Judicial interference in elementary schools seriously undermines the
functioning of our schools. Such interference undermines the close relationship
between local parents and local schools, undermines the traditional in loco parentis
authority of schools, and weakens the confidence that all parents, regardless of
creed, should have that they can send their children to the common school and not
be subject to proselytization.
Schools should be given a wide latitude of discretion in the regulation of
student speech. Burnside v. Byars, 363 F.2d 744, 748 (5th Cir. 1996).
Declaring the elementary school classroom, hallway, or

playground forums for unfettered student communication
would require either a severe incursion into the critical
educational mission of the elementary school or a
substantial contraction of the First Amendment
protections afforded speech in a public forum. Perhaps
both.
Muller, 98 F.3d at 1539-40.
This local autonomy and traditional authority is especially threatened if
teachers and administrators lose the strong shield of qualified immunity. Given
40
―[T]he public school is at once the symbol of our democracy and the most pervasive means for
promoting our common destiny. In no activity of the State is it more vital to keep out divisive
forces than in its schools.‖ Id. (citing Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 231
(1948) (opinion by Frankfurter, J.)).
57
that the application of Tinker in the elementary school context remains unclear—
especially as regards religious speech, Swanson and Bomchill contend that
decisions regarding what materials may be distributed to elementary school
students at school should properly rest with the schools rather than with the federal
courts. Evans-Marshall v. Bd. of Educ., 428 F.3d 223, 237 (6th Cir. 2005) (Sutton,
J., concurring). In the specific context currently before this Court, Plaintiffs‘ First
Amendment rights were not clearly violated by Swanson‘s and Bomchill‘s alleged
restrictions on the distribution of non-curricular, religious materials to other
students at school.
CONCLUSION
This Court should reverse the district court‘s decision which denied
Swanson‘s and Bomchill‘s motion to dismiss based on qualified immunity and
render judgment in their favor.
Respectfully submitted,

Thomas P. Brandt
Joshua A. Skinner
David R. Upham
Two Energy Square
Dallas, Texas 75206
(214) 369-1300 (office)
58
(214) 987-9649 (telecopier)
ATTORNEYS FOR DEFENDANTS-APPELLANTS

59
CERTIFICATE OF SERVICE
This is to certify that the foregoing instrument has been emailed via the
Court‘s ECF filing system in compliance with Rule 25(b) and (c) of the Federal
Rules of Appellate Procedure, on this 9th day of March, 2011, to this Court and to
all counsel of record as follows:
Paul D. Clement Via ECF Delivery

Ashley C. Parrish
KING & SPALDING LLP
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Counsel for Plaintiffs – Appellees

Thomas P. Brandt
60
CERTIFICATE OF COMPLAINCE
1. This brief complies with the type-volume limitation of FED. R. APP. P.
32(a)(7)(B) because:
this brief contains 13,866 words, excluding the parts of the brief
exempted by FED. R. APP. P. 32(a)(7)(B)(iii).
1. This brief complies with the typeface requirements of FED. R. APP. P.

32(a)(5) and the type requirements of FED. R. APP. P. 32(a)(6) because:
This brief has been prepared in a proportionally spaced typeface using

Microsoft Word 2007 with a 14 point font named Times New Roman.

Thomas P. Brandt
Attorney of Record for Appellants
Lynn Swanson and Jackie Bomchill
Dated: March 9, 2011
61

Supplemental en Banc Brief of Appellants Swanson Bomchill (00387658)

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Supplemental en Banc Brief of Appellants Swanson Bomchill (00387658)

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Case: 09-40373 Document: 00511405662 Page: 1 Date Filed: 03/09/2011

Case No. 09-40373

In the United States Court of Appeals

DOUG MORGAN; ROBIN MORGAN; JIM SHELL; SUNNY SHELL;

LYNN SWANSON, IN HER INDIVIDUAL CAPACITY AND AS PRINCIPAL OF THOMAS

On Appeal from the United States District Court

SUPPLEMENTAL EN BANC BRIEF OF APPELLANTS

ATTORNEYS FOR DEFENDANTS-APPELLANTS

CERTIFICATE OF INTERESTED PERSONS

DOUG MORGAN; ROBIN MORGAN; JIM SHELL; SUNNY SHELL;

LYNN SWANSON, IN HER INDIVIDUAL CAPACITY AND AS PRINCIPAL OF THOMAS

of this court may evaluate possible disqualification or recusal.

1. Defendants-Appellants Lynn Swanson and Jackie Bomchill are

2. Plaintiffs-Appellees Jonathan Morgan, Doug Morgan, Robin Morgan,

Kelly Shackelford Paul D. Clement

Wm. Charles Bundren Clyde M. Siebman

40707, Plaintiffs-Appellees were also represented by

3. Nonappealing Defendants Plano Independent School District, Doug

Otto, John Beasley, and Carole Griesdorf are represented by:

Richard M. Abernathy Roger Sanders

1700 Redbud Blvd., Suite 300 Sherman, Texas 75090

4. Nonappealing Defendants Lisa Long and Suzie Snyder are, as of

September 7, 2010, represented by:

5. Texas Association of School Boards Risk Management Fund is the

risk pool for Defendants.

/s/ Thomas P. Brandt

the law in the specific context of this case................................47

2002) ....................................................................................................... 34, 35

LEXIS 32793 (E.D. La. 2008) ................................................................ 31, 32

Speech ―Gov. Perry‘s Remarks at the Signing of the School

705 (December 17, 2010).

1. Whether the district court erred by failing to

2. Whether the district court erred by failing to

3. Whether the First Amendment is violated by

STATEMENT OF THE CASE

punitive damages and attorneys fees. R.36. Plaintiffs also brought an

―create an excessive entanglement with religion.‖ R.178 [¶10.6].

issues to resolve. Although Plaintiffs originally brought claims on behalf of both

witnessed the dismissal of three of the individual defendants – Superintendent Dr.

Doug Otto, Assistant Superintendent Carole Greisdorf and Security Police

restricting student-to-student distribution of non-curricular materials that were at

Relying on Morse v. Frederick, 551 U.S. 393 (2007), as well as a host of

(2009), required Swanson and Bomchill to address the underlying constitutional

involving ―clearly established law.‖ Obedient to the requirements of Saucier,

restrictions on the distribution of non-curricular materials by elementary school

The magistrate judge recommended denial of Swanson‘s and Bomchill‘s

232; S.R.347 (response) and 430 (reply).

objections, bringing Pearson to the attention of the court. S.R.497; S.R.545

banc. 628 F.3d 705 (December 17).

STATEMENT OF THE FACTS

I. SWANSON AND BOMCHILL WERE FOLLOWING POLICY, NOT ACTING BASED

storyline, however, is fairly straightforward. Plaintiffs allege that Swanson and

Bomchill, elementary school principals in Plano ISD, restricted the distribution at

school of non-curricular, religious materials to their elementary-age students

Plaintiffs, all elementary school students in approximately second through fifth

curricular, religious materials to their classmates during school regardless of

whether other students or their parents had consented to the distribution.

A. Swanson’s and Bomchill’s acted not out of any personal hostility

factual allegations in Plaintiffs‘ Complaint, however, do not evince any hostility on

B. The policy to which Swanson and Bomchill conformed sought to

administration (Swanson‘s and Bomchill‘s supervisors11), directed Swanson and

and that permitting the distributions might constitute a Constitutional violation.

characterized the school officials‘ conduct as based on a mistaken belief that