Arceneaux v. Klein Oak ISD et al

Filing 58

MEMORANDUM AND ORDER entered: Richard's motion to dismiss, (Docket Entry No. 46), is granted in part and denied in part. The Establishment Clause claim is dismissed, with prejudice and without leave to amend; the free-speech and equal-protection claims may go forward. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

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United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LASHAN ARCENEAUX,
INDIVIDUALLY, AND AS NEXT
FRIEND OF M.O., A MINOR,
Plaintiffs,
VS.
KLEIN INDEPENDENT SCHOOL
DISTRICT, et al.,
Defendants.

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July 20, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-3234

MEMORANDUM AND ORDER
LaShan Arcenaux, the mother of M.O., a minor, sued Angie Richard, a teacher and debate
coach at Klein Oak High School, along with several other teachers, administrators, and the Klein
Independent School District. Arceneaux alleged that the defendants discriminated against M.O.
based on her choice to sit during the recitation of the Pledge of Allegiance. Klein ISD, Benjie
Arnold, and Stephen Naetzker moved to dismiss. The court addressed those motions in a May 29,
2018 Memorandum and Opinion. (Docket Entry No. 49). Richard separately moved to dismiss the
claims asserted against her in her individual capacity, M.O. responded, and Richard replied.
(Docket Entry Nos. 46, 54, 57).
In the second amended complaint, Arceneaux alleged that Richard retaliated against M.O.
for filing this lawsuit, bullied M.O., and fostered an educational environment that encouraged other
students to do so as well, in violation of the school’s anti-bullying policies. The complaint
allegations against Richard include: (1) incidents of Richard prohibiting M.O. from discussing this

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lawsuit with other students; (2) admonishing M.O. for refusing to discuss the lawsuit with Richard;
(3) failing to enforce Klein ISD’s anti-bullying policy; (4) excluding M.O. from debate team events;
and (5) refusing to speak to M.O.
Based on careful review of the pleadings; the motion, response, and reply; the record; and
the applicable law, Richard’s motion to dismiss, (Docket Entry No. 46), is granted in part and denied
in part. The Establishment Clause claim against Richard is dismissed, with prejudice and without
leave to amend, for the reasons stated in the May 29, 2018 Memorandum and Opinion. The freespeech claim, M.O.’s equal-protection claim, and the retaliation claim are adequately pleaded and
may go forward.
The reasons for these rulings are explained below.
I.

Background
The May 29 Memorandum and Opinion set out a detailed summary of the facts alleged in

the second amended complaint. (Docket Entry No. 49 at 3–8). This Memorandum and Opinion
addresses only the allegations against Angie Richard.
The Klein ISD Pledge Policy, which tracks a Texas statute, provides:
A board shall require students, once during each school day, to recite the pledges of
allegiance to the United States and Texas flags.
On written request from a student’s parent or guardian, a district shall excuse the
student from reciting a pledge of allegiance.
(Docket Entry No. 37 ¶ 21).
At Klein Oak High School, the Pledge is recited every morning. M.O. is a 17-year-old
student at Klein Oak who sits during, and does not recite, the Pledge.
On October 25, 2017, the day after this lawsuit was filed, Richard intervened to prevent

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students from talking with M.O. about this lawsuit in her classroom outside class time. (Id. ¶ 89).
On November 4, 2017, at a weekend debate-team event at Klein Oak, another student, J., told M.O.
to “go fuck off” and to “go fuck yourself.” (Id. ¶ 90). M.O. reported the incident to Richard.
Although J. admitted making the statements, Richard told M.O. not to report the incident to the
school until the following Monday, to avoid giving the school a bad reputation at the debate event.
J. was not disciplined for these actions.
In December 2017, another student stole food from M.O.’s bookbag during Richard’s class.
The student admitted the theft to Richard but received no discipline. (Id. ¶ 94). The same month,
Richard repeatedly asked M.O. for details about her lawsuit and about how students were treating
her. When M.O. refused to discuss the case, Richard threatened to send M.O. to the principal’s
office. At one point, during class time, Richard shouted “[f]ine, just ignore me.” (Id. ¶ 95).
Arceneaux also alleges that Richard withheld information about debate-team events from M.O.,
including when the team’s yearbook photo would be taken; demoted M.O. on the debate team; and
told other students that M.O. was “a liar” and that her participation on the debate team was
meaningless. Richard stopped speaking with M.O. and communicated with her only through student
intermediaries or another faculty member. (Id. ¶ 98).
II.

The Legal Standard
A.

Motion to Dismiss

Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be
granted.” FED. R. CIV. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007),
the Supreme Court confirmed that Rule 12(b)(6) must be read in conjunction with Rule 8(a), which
requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” FED.

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R. CIV. P. 8(a)(2). To withstand a Rule 12(b)(6) motion, a complaint must contain “enough facts
to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also Elsensohn
v. St. Tammany Par. Sheriff’s Office, 530 F.3d 368, 372 (5th Cir. 2008). In Ashcroft v. Iqbal, 556
U.S. 662 (2009), the Supreme Court elaborated on the pleading standards discussed in Twombly.
The Court explained that “the pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. at 678 (quoting Twombly, 550 U.S. at 555). Iqbal explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,
550 U.S. at 556).
“[I]n deciding a motion to dismiss for failure to state a claim, courts must limit their inquiry
to the facts stated in the complaint and the documents either attached to or incorporated in the
complaint.” Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996). A court may
“consider documents integral to and explicitly relied on in the complaint, that the defendant appends
to his motion to dismiss, as well as the full text of documents that are partially quoted or referred
to in the complaint.” In re Sec. Litig. BMC Software, Inc., 183 F. Supp. 2d 860, 882 (S.D. Tex.
2001) (internal quotation marks omitted). Consideration of documents attached to a defendant’s
motion to dismiss is limited to “documents that are referred to in the plaintiff’s complaint and are
central to the plaintiff’s claim.” Scanlan v. Tex. A & M. Univ., 343 F.3d 533, 536 (5th Cir. 2003)
(citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)). The court
can also consider government documents and similar matters of public record without converting
the motion into one seeking summary judgment. See Funk v. Stryker Corp., 631 F.3d 777, 780 (5th

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Cir. 2011); Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 193 n.3 (5th Cir. 1988) (quoting 5 WRIGHT
& MILLER, FEDERAL PRACTICE AND PROCEDURE § 1366); Jathanna v. Spring Branch Indep. Sch.
Dist., 2012 WL 6096675, at *3 (S.D. Tex. Dec. 7, 2012)).
B.

Qualified Immunity

“Qualified immunity balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 233(2009). To determine whether qualified immunity applies, courts use
the two-part analysis set from Saucier v. Katz, 533 U.S. 194, 210 (2001), overruled in part by
Pearson, 555 U.S. at 129. Courts must decide “(1) whether facts alleged or shown by plaintiff make
out the violation of a constitutional right, and (2) if so, whether that right was clearly established at
the time of the defendant’s alleged misconduct.” Pasco v. Knoblauch, 566 F.3d 572, 579 (5th Cir.
2009). Government officials are shielded from liability when “their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The “of which a reasonable person would have
known” language does not add to the “clearly established law” requirement because “a reasonably
competent public official should know the law governing his conduct.” Kinney v. Weaver, 367 F.3d
337, 349 (5th Cir. 2004) (citing Harlow, 457 U.S. at 818–19).
“To be clearly established for purposes of qualified immunity, the contours of the right must
be sufficiently clear that a reasonable official would understand that what he is doing violates that
right.” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 256 (5th Cir. 2005). “There need not be
‘commanding precedent’ that holds that the ‘very action in question’ is unlawful; the unlawfulness

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need only be ‘readily apparent from relevant precedent in sufficiently similar situations.’” Brown
v. Miller, 519 F.3d 231, 236–37 (5th Cir. 2008) (citing Atteberry, 430 F.3d at 257).
While a plaintiff bears the burden to defeat a qualified immunity defense, that need not be
accomplished at the motion to dismiss. Brown v. City of Houston, 297 F. Supp. 3d 748, 773 (S.D.
Tex. 2017), reconsideration denied sub nom. Brown v. City of Houston, Texas, No. CV H-17-1749,
2018 WL 1333883 (S.D. Tex. Mar. 15, 2018); see Martone v. Livingston, No. 4:13-CV-3369, 2014
WL 3534696, at *4, 2014 U.S. Dist. LEXIS 96375, at *12 (S.D. Tex. July 16, 2014) (“In the context
of a motion to dismiss, the plaintiff’s burden is discharged if ‘the plaintiff’s pleadings assert facts
which, if true, would overcome the defense of qualified immunity.’”). “When an official’s intent
or the reasons for his or her actions are an essential element of the underlying violation . . . factual
disputes over intent [are] just like any other factual dispute that can justify a denial of qualified
immunity.” Kinney, 367 F.3d at 373.
III.

Analysis
A.

The Free-Speech Claim

Richard makes two arguments for dismissing M.O.’s First Amendment free-speech
claim. First, she argues that M.O. has failed to sufficiently plead facts that support that claim.
Second, she argues that she is entitled to qualified immunity. (Docket Entry No. 46 at 7).
1.

Sufficient Pleading

The First Amendment provides that “Congress shall make now law . . . abridging the
freedom of speech.” U.S. CONST. amend. I. While a student’s right to free speech is “applied in
light of the special characteristics of the school environment,” Tinker v. Des Moines Indep. Sch.
Dist., 393 U.S. 503, 506 (1969), “certainly where there is no finding and no showing that engaging

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in the forbidden conduct would ‘materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.” Id. at
509 (citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
M.O. alleges that, on October 25, 2017, Richard stopped M.O. from talking to other students
about her lawsuit against the school. (Docket Entry No. 37 ¶ 89). School officials may restrict
private, personal expression to the extent that it would “materially and substantially interfere with
the requirements of appropriate discipline in the operation of the school,” or “impinge upon the
rights of other students.” Morgan v. Swanson, 659 F.3d. 359, 375 (5th Cir. 2011) (citing Tinker, 393
U.S. at 509). M.O. has alleged enough facts to show that Richard abridged her speech. M.O.’s
speech—sitting during the Pledge, filing a lawsuit, or talking to students before or after class does
not substantially interfere with the work of the school or impinge on the rights of other students.
The plaintiffs also allege that Richard violated M.O.’s First Amendment rights by
discriminating against her for refusing to discuss this lawsuit with Richard. The “right of freedom
of thought protected by the First Amendment against state action includes both the right to speak
freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977).
“Indeed, the right to speak and the right not to speak are complementary components of the broader
concept of ‘individual freedom of mind’; any difference [between them] is without constitutional
significance.” Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d 338, 348 (5th Cir. 2017) (citing Riley
v. Nat’l Fed’n of the Blind of North Carolina, Inc., 487 U.S. 781, 796–97(1988)). The second
amended complaint alleges that Richard repeatedly tried to compel M.O. to talk to her about this
lawsuit and threatened to send M.O. to the principal’s office on multiple occasions when she
refused. At one point, Richard allegedly yelled, “[f]ine, just ignore me” at M.O., in front of the other

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students during class. The complaint allegations show that M.O.’s speech, and refusal to discuss
the case with Richard, did not substantially interfere with the work of the school or impinge on the
rights of the other students, and that there was no educational rationale for requiring M.O. to discuss
pending litigation with Richard.
At this stage, M.O. has sufficiently pleaded a plausible free-speech claim.
2.

Qualified Immunity

Richard argues that even if a free-speech claim is sufficiently pleaded, she is nonetheless
entitled to qualified immunity. Richard is not entitled to qualified immunity on this record.
The law establishing that student speech can only be limited when it interferes with “the
work of the school or impinges upon the rights of other students” is clearly established. See Tinker,
393 U.S. 503 (1969); Brinsdon, 863 F.3d at 338; Burnside, 363 F.2d at 744. The Supreme Court
also clearly established, over 70 years ago, that it is unconstitutional to require a child to stand for
the Pledge of Allegiance. West Virginia State Bd. Of Educ. v. Barnette, 319 U.S. 624 (1943).
Limitations on student speech are narrow. They cannot reasonably be interpreted to include
M.O.’s discussion of her lawsuit based on her decision to sit for the Pledge. See Bell v. Itwamba
Cnty. Sch. Bd., 799 F.3d 379, 390 (5th Cir. 2015) (a student’s right to free speech is not violated by
restricting off-campus speech that intentionally threatens, harasses, or intimidates a teacher); Morse
v. Fredrick, 551 U.S. 393, 425 (2007) (a student’s right to free speech is not violated by a principal
who confiscated a banner promoting illegal drug use); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.
260 (1988) (a student’s right to free speech is not violated when educators exercise editorial control
over school-sponsored speech, “so long as their actions are reasonably related to legitimate
pedagogical concerns”); Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986) (a student’s right to free

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speech is not violated by disciplining a student for offensively lewd and indecent speech). It is
undisputed that a school may not require a student to stand during the Pledge, discussing a lawsuit
does not impinge upon other students’ rights or interfere with the work of the school, and “a
reasonably competent public official should know the law governing [her] conduct.” See Harlow,
457 U.S. at 818–19.
Richard is not entitled to qualified immunity on the present record, because the record
provides no basis to infer that a reasonable school official would find M.O.’s speech to be a threat
to the school’s work or to other students’ rights.
B.

M.O.’s Equal-Protection Claim

Richard makes three arguments for dismissing the equal-protection claim. First, she argues
that M.O.’s equal-protection claim fails because M.O.’s Establishment Clause claim and free-speech
claim fail. Because, as discussed above, M.O.’s free-speech claim may proceed, Richard’s first
argument is unpersuasive. See Brinsdon, 863 F.3d at 358 (“If the defendants’ actions survive
substantive review under the specific guarantees of the First Amendment, they are also likely to be
upheld under an equal protection analysis.” (citing A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 226
n.9 (5th Cir. 2009))). Second, Richard argues that M.O. has failed to sufficiently plead facts that
support a free-speech claim. Finally, Richard argues that she is not liable because she is entitled to
qualified immunity. (Docket Entry No. 46 at 14).
1.

Sufficient Pleading

Richard’s second argument is that M.O. has failed to plead sufficient facts to support her
contention that she was treated differently from other students based on her membership in a
protected class. Although the Fifth Circuit held in Croft v. Perry that reciting the Pledge of

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Allegiance is a patriotic rather than a religious activity, 624 F.3d 157 (5th Cir. 2010), that holding
does not limit M.O.’s ability to assert an equal-protection claim based on her sincerely held
opposition to reciting the Pledge.
Richard correctly argues that M.O.’s equal-protection claim cannot be based on M.O.’s
demotion within the debate team. See Gil Ramirez Grp., L.L.C., 786 F.3d at 419 (“the class-of-one
rationale does not apply to forms of state action . . . which by their nature involve discretionary
decision-making based on a vast array of subjective, individualized assessments.”) (internal
quotations and citations omitted). But the second amended complaint states other factual grounds
sufficient to infer that M.O. was treated differently from other similarly situated students based on
her sincerely held beliefs. M.O. alleges that “Angie Richard . . . singled M.O. out, subjected her to
derision and opprobrium, and otherwise discriminated against M.O. for her sincerely held beliefs,
exhibited by her choice to refrain from participating in the daily recitation of the Pledge.” (Docket
Entry No. 37 ¶ 111). Richard failed to enforce the anti-bullying policy against a student who told
M.O. to “fuck off” and against a student who stole M.O.’s belongings from her backpack, and
Richard threatened to punish M.O. for refusing to discuss this lawsuit. (Docket Entry No. 37 ¶ 90
to 95). M.O. also alleges that Richard tried to exclude her from debate-team activities and the
yearbook photo. Finally, M.O. alleges that Richard speaks to M.O. only through other students and
faculty. These facts indicate that Richard treated M.O. more harshly than other students.
Interpreting the sufficiently pleaded facts in a light most favorable to the plaintiff, M.O. has
sufficiently pleaded an equal-protection claim based on unequal treatment between her and other
students at Oak Klein High School based on her sincerely held beliefs.
2.

Qualified Immunity

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Finally, Richard claims that M.O.’s equal-protection claim should be dismissed because she
is entitled to qualified immunity. As discussed above, M.O. has alleged enough facts to overcome
that defense at this stage. Additionally, Richard’s intent is an element of the equal-protection claim.
The facts alleged, at this stage, are sufficient to raise a factual dispute about Richard’s intent. See
Kinney, 376 F.3d at 373. Once the parties have conducted discovery and the record is better
developed, Richard may raise this defense again.
C.

The Retaliation Claim

Arceneaux asserts a retaliation claim, alleging a violation of M.O.’s right to petition the
government for a redress of grievances. (Docket Entry No. 54 at 15). Richard’s motion did not
address whether this claim fails as a matter of law. Richard argues only that the claim should be
dismissed because it was not raised in the second amended complaint. To survive a motion to
dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. The title of the facts regarding Richard in the second amended
complaint is “Angie Richard’s retaliatory conduct toward M.O. after the filing of the initial
complaint.” (Docket Entry No. 37 at 15). The first incident alleged is that Richard prohibited M.O.
from speaking to other students about this lawsuit. This incident allegedly happened the day after
the lawsuit was filed. (Docket Entry No. 37 ¶ 89). The complaint also alleged that Richard
threatened to send M.O. to the principal’s office for refusing to discuss the case with Richard.
(Docket Entry No. 37 ¶ 95). These facts are enough to support a retaliation claim. At this stage,
M.O. has alleged enough facts to support a plausible claim for retaliation in violation of M.O.’s right
to petition the government.

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III.

Conclusion
Richard’s motion to dismiss, (Docket Entry No. 46), is granted in part and denied in part.

The Establishment Clause claim is dismissed, with prejudice and without leave to amend; the freespeech and equal-protection claims may go forward.
SIGNED on July 20, 2018, at Houston, Texas.

______________________________________
Lee H. Rosenthal
Chief United States District Judge

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