William Brinsdon v. McAllen Independent Sch Dist , 863 F.3d 338 ( 2017 )


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  •      Case: 15-40160   Document: 00514057724     Page: 1   Date Filed: 07/03/2017
    REVISED July 3, 2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 15-40160
    Fif h Circuit
    FILED
    June 30, 2017
    BRENDA BRINSDON,                                                         Lyle W. Cayce
    Clerk
    Plaintiff - Appellant
    v.
    MCALLEN INDEPENDENT SCHOOL DISTRICT; YVETTE CAVAZOS,
    Individually and in her official capacity as a teacher in the McAllen
    Independent School District; REYNA SANTOS, Individually and in her
    official capacity as a teacher in the McAllen Independent School District,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Southern District of Texas
    ON PETITION FOR REHEARING EN BANC
    Before DAVIS, PRADO, and SOUTHWICK, Circuit Judges.
    LESLIE H. SOUTHWICK, Circuit Judge:
    No judge in active service on this court requested that the court be polled
    in response to the petition for rehearing en banc. The petition is denied. The
    panel’s prior opinion is withdrawn, and this opinion is substituted.
    When Brenda Brinsdon was a sophomore at a high school in McAllen,
    Texas, she was required to participate in what defendants claim was a mock
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    performance of the Mexican Pledge of Allegiance as an assignment for her
    Spanish class. She refused. Brinsdon later filed suit, alleging the defendants
    violated her constitutional rights.           The district court entered summary
    judgment for the defendants on some of Brinsdon’s claims. After a trial on the
    remaining claims, the district court entered judgment as a matter of law for
    the defendants. We AFFIRM.
    FACTUAL AND PROCEDURAL BACKGROUND
    McAllen is a municipality whose limits extend to Texas’s border with
    Mexico. 1 It has a population of 138,000. 2 McAllen is also part of the McAllen-
    Edinburg-Mission Statistical Area, which has the country’s second highest
    percentage of Hispanic people — almost 91% of its population of 775,000. 3
    Monday, September 12, 2011, began the first week of classes at McAllen
    Achieve Early College High School, a public school in the McAllen Independent
    School District (the “District”). At the time, Brenda Brinsdon was a sophomore
    at the high school. One of the classes Brinsdon took was Spanish III, which
    was taught by Reyna Santos. Santos also taught four other Spanish classes.
    On that Monday, Santos distributed an assignment to all her classes. It
    required students to memorize and recite in Spanish the Mexican Pledge of
    Allegiance 4 and sing the Mexican National Anthem by that Friday, September
    1 MAPTECHNICA, https://www.maptechnica.com/us-city-boundary-map/city/McAllen/
    state/TX/cityid/4845384 (last visited June 30, 2017).
    2   TEXAS ALMANAC 2016–2017, at 436 (2016).
    STEVEN G. WILSON, ET AL., U.S. CENSUS BUREAU, PATTERNS OF METROPOLITAN
    3
    AND MICROPOLITAN POPULATION CHANGE: 2000 TO 2010, at 50 (2012),
    www.census.gov/prod/cen2010/reports/c2010sr-01.pdf.
    4 An English translation of the pledge is this: “Mexican Flag, legacy from our heroes,
    symbol of the unity of our ancestors and our brothers, we promise you to always be loyal to
    the principles of freedom and justice that make this an independent, human and generous
    nation to which we dedicate our existence.”
    2
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    16.    The assignment was a part of a week-long celebration of Mexican
    Independence Day, which is on September 16. According to the class syllabus,
    the assignment was meant to make students aware of “the culture and heritage
    of a neighboring country . . . .” Santos testified that the exercise was meant for
    cultural awareness and language fluency. Students were to mimic the pledge
    ceremony that Mexican citizens follow: saying the words while standing with
    their right arms raised at a 90-degree angle.
    Brinsdon’s brief states she is proud to be of mixed American and Mexican
    heritage, as her mother was born in Mexico and her father in the United States.
    Brinsdon still objected to the assignment, believing “pledging her allegiance to
    a different country was wrong . . . .” She did not complain about having to sing
    the Mexican National Anthem. She informed Santos she would not recite the
    pledge. Additionally, Brinsdon wanted the entire class to be exempt from the
    assignment. Santos replied that the assignment was graded and mandatory.
    Brinsdon left class to see Principal Yvette Cavazos. What happened during
    and immediately after Brinsdon’s meeting with Cavazos is in dispute.
    Brinsdon testified that Cavazos failed to address her concerns, instead
    justifying the assignment simply as “a cultural thing.” Brinsdon then claims
    she returned to the classroom and saw that her class was practicing the pledge.
    She stated that she felt peer pressure, knew the eventual assignment was
    graded, and decided to practice reciting the pledge. After class, Brinsdon again
    met with Cavazos, this time with Santos present. The three agreed that
    Brinsdon would submit a writing assignment to Santos in lieu of reciting the
    pledge. Cavazos, on the other hand, testified she accompanied Brinsdon from
    her office to Santos’s class and met with Santos at that time to discuss an
    alternative assignment.
    It is undisputed, however, that Brinsdon was given an alternative
    assignment on which she received a “C.” Most of the other students received
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    an “A.” It is unclear whether the grade Brinsdon received was due to her lack
    of effort, as Santos asserted, retaliation for having complained about reciting
    the pledge, as Brinsdon suspected, or another reason.
    After the end of school on Monday, Brenda Brinsdon informed her father,
    William Brinsdon, of these events. At her father’s insistence, later that week
    Brenda took to class her father’s “spy pen,” i.e., a small camera and audio
    recorder disguised to look like a regular pen. Their goal was to acquire a secret
    recording of her classmates reciting the Mexican pledge. Brenda did not have
    permission to record the class. Neither Santos nor Brenda’s classmates knew
    they were being recorded. Also that week, on Thursday, September 15, 2011,
    William Brinsdon met with Principal Cavazos. The meeting did not alleviate
    his concerns. Other school authorities allegedly were unresponsive.
    Though the dates are unclear, William Brinsdon e-mailed the spy-pen
    video to a media source, The Blaze. It then placed the video on YouTube. On
    October 17, 2011, Mr. Brinsdon told the principal he had contacted some media
    outlets, and he would be interviewed by national radio host Glenn Beck that
    day. During their meeting, Principal Cavazos informed him of the “numerous
    calls and threatening emails” the school had received regarding the video. On
    the same day as the interview, the spy-pen recording was published on Beck’s
    news website, The Blaze.      The next day, Fox News interviewed Brenda
    Brinsdon. These interviews apparently intensified the national publicity that
    was given to the Brinsdons’ complaints about the pledge assignment.
    After this media attention, officials at the high school say they were
    inundated with calls, letters, and emails.      A substantial number of these
    communications were derogatory toward Hispanics. Some threatened harm to
    individuals at the school. In addition, there was testimony about Brinsdon’s
    disrespectful behavior towards her teacher Santos, increased tension among
    her classmates, and other effects of the video’s release.
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    On October 19, 2011, the day after Fox News interviewed Brenda
    Brinsdon, two days after William Brinsdon’s interview with Glenn Beck and
    The Blaze’s publication of the recording, and over a month after Brenda says
    she was compelled to recite the Mexican pledge, Brenda was removed from
    class. Brenda completed Spanish III by self-studying in Cavazos’s office. She
    graduated from this high school in 2014.
    Brenda Brinsdon, through her father, filed suit on February 27, 2013.
    She sought an injunction, a declaratory judgment, and nominal damages
    against Santos, Cavazos, and the District. Brinsdon asserted her claims under
    42 U.S.C. § 1983. Brinsdon’s first claim was that her First Amendment rights
    were violated when she was compelled to recite the pledge and that she was
    retaliated against when she was removed from class. Brinsdon’s second claim
    was based on the Equal Protection Clause, arguing that she suffered disparate
    treatment when she was removed from class. Cavazos and Santos, the two
    individual defendants, asserted qualified immunity as a defense.
    All parties filed motions for summary judgment.        The district court
    denied Brinsdon’s motion in full. It entered summary judgment in part for the
    individual defendants, upholding their qualified-immunity defense. The court
    also granted summary judgment for the District for removing Brinsdon from
    class. The compelled-speech and equal-protection claims against the District
    proceeded to trial. The district court entered judgment as a matter of law in
    favor of the District, concluding Brinsdon had not established a municipal
    policy. Brinsdon timely appealed.
    DISCUSSION
    Among Brinsdon’s claims of error is that the district court should have
    granted her motion for summary judgment on the equal-protection and
    compelled-speech claim. Denials of summary judgment, with few exceptions
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    not relevant here, are not final decisions that can be reviewed. Kinney v.
    Weaver, 
    367 F.3d 337
    , 346 (5th Cir. 2004) (en banc). Hence, Brinsdon cannot
    appeal this aspect of the district court’s order.
    Accordingly, we review only these issues and rulings:
    I. Possible mootness of the case due to Brinsdon’s graduation;
    II. The entry of judgment as a matter of law on the issue of the District’s
    municipal liability, after Brinsdon had presented her case at trial;
    III. The entry of summary judgment in favor of Cavazos and Santos on
    qualified immunity;
    IV. The entry of summary judgment for all defendants on the claim that
    she was improperly removed from class. We consider the validity of this ruling
    as to the District when discussing municipal liability and as to the individual
    defendants under the last issue.
    I.    Mootness
    A claim is moot when a case or controversy no longer exists between the
    parties. Bd. of Sch. Comm’rs v. Jacobs, 
    420 U.S. 128
    , 129 (1975). “Mootness
    is a jurisdictional matter which can be raised for the first time on appeal.”
    Texas Midstream Gas Servs., LLC v. City of Grand Prairie, 
    608 F.3d 200
    , 204
    (5th Cir. 2010). The mootness doctrine applies to equitable relief but will not
    bar any claim for damages, including nominal damages. See Morgan v. Plano
    Indep. Sch. Dist., 
    589 F.3d 740
    , 748 n.32 (5th Cir. 2009) (collecting cases).
    Because Brinsdon has graduated from high school, her equitable claims
    are moot.    See, e.g., Sapp v. Renfroe, 
    511 F.2d 172
    , 175 (5th Cir. 1975).
    Additionally, Brinsdon does not qualify for the “capable of repetition, yet
    evading review” exception because there is no “reasonable expectation that
    [she] . . . would be subject[] to the same action again.” Lopez v. City of Houston,
    
    617 F.3d 336
    , 340 (5th Cir. 2010).
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    Brinsdon relies on two cases to save her equitable claims. In one, the
    Seventh Circuit held that a permanent injunction in favor of all students in a
    high school meant that graduated students’ claims against the school were not
    moot. Zamecnik v. Indian Prairie Sch. Dist. No. 204, 
    636 F.3d 874
    , 879 (7th
    Cir. 2011). The case is readily distinguishable. The district court there entered
    the permanent injunction before one of the named students had graduated. 
    Id. at 878.
    The injunction also expanded the class of plaintiffs to every student at
    the school. 
    Id. at 878–79.
    These facts kept the case and controversy alive
    between the plaintiffs-students and the defendant-school district. 
    Id. at 879.
    No such injunction exists as to the high school.
    In the other case, the Supreme Court resolved student-speech claims
    long after the student, Frederick, had graduated. Morse v. Frederick, 
    551 U.S. 393
    , 397, 409–10 (2007). Frederick sought equitable relief and damages. 
    Id. at 399.
    The Court, though, “granted certiorari on two questions: whether
    Frederick had a First Amendment right to wield his banner, and, if so, whether
    that right was so clearly established that the principal may be held liable for
    damages.” 
    Id. at 400.
    The Court had narrowed the relief sought only to
    damages, which, as we just explained, is not barred by the mootness doctrine.
    Because Brinsdon has graduated from high school, her only surviving
    claim is for nominal damages arising from the alleged violation of her rights.
    II.    Municipal Liability
    Brinsdon appeals the district court’s entry of judgment as a matter of
    law in favor of the District on the ground that there was no municipal liability.
    The motion was made and granted after Brinsdon had presented her case at
    trial. A judgment as a matter of law is reviewed de novo. Resolution Tr. Corp.
    v. Cramer, 
    6 F.3d 1102
    , 1109 (5th Cir. 1993). We must view the evidence “in
    the light and with all reasonable inferences most favorable to the party
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    opposed to the motion.” Barnett v. I.R.S., 
    988 F.2d 1449
    , 1453 (5th Cir. 1993).
    “[M]unicipal liability under section 1983 requires proof of three
    elements: a policymaker; an official policy; and a violation of constitutional
    rights whose ‘moving force’ is the policy or custom.” Piotrowski v. City of
    Houston, 
    237 F.3d 567
    , 578 (5th Cir. 2001). Additionally, “[t]he policymaker
    must have either actual or constructive knowledge of the alleged policy” to be
    held liable. Cox v. City of Dallas, 
    430 F.3d 734
    , 748−49 (5th Cir. 2005).
    Regarding knowledge, the Texas Essential Knowledge and Skills
    (“TEKS”) guidelines give schools parameters and objectives for their lesson
    plans, but teachers have the flexibility to elect the form or the activities that
    they use to address those objectives. See 19 TEX. ADMIN. CODE ANN. §§ 128.10–
    .32. Brinsdon argues that Cavazos’s authority under the TEKS guidelines to
    “oversee the curriculum and approve lesson plans” was a delegation of
    policymaking authority from the District. Therefore, because Cavazos had
    actual knowledge of the assignment, Cavazos’s knowledge can be imputed to
    the District. Even so, an instructor’s “discretion” to review and approve lesson
    plans is not a delegation. See Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 
    153 F.3d 211
    , 216–17 (5th Cir. 1998).       Because there was no delegation of
    policymaking authority to Cavazos, her knowledge of the pledge assignment
    cannot be imputed to the District.
    Brinsdon also makes a constructive-knowledge argument, noting the
    assignment has been in existence at least since Cavazos’s own children
    performed the assignment when they attended high schools in the District
    approximately 15 years ago.      This evidence, though, at most shows that
    Cavazos knew the assignment had been given over a decade earlier. The
    evidence does not establish the assignment’s continuity even by the teacher(s)
    who gave it to Cavazos’s children, much less that it was a District policy of any
    kind that would have affected some or all teachers and schools.             While
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    “prolonged public discussion or . . . a high degree of publicity” would support a
    finding of constructive knowledge, such facts do not exist here. See Pineda v.
    City of Houston, 
    291 F.3d 325
    , 330 (5th Cir. 2002).
    Even if we were to accept that the possible longevity of the assignment
    meant some policymakers in the District were aware of the assignment, this
    does not prove there was a policy forcing the recitation of the Mexican pledge.
    The District’s alleged knowledge of, and failure to object to, the giving of the
    assignment is not the same as the District’s requiring recitation of the pledge.
    Again, municipal liability requires “a policymaker; an official policy; and a
    violation of constitutional rights whose ‘moving force’ is the policy or custom.”
    
    Piotrowski, 237 F.3d at 578
    . Because there is no official policy, there can be no
    liability. Though policy may be shown by custom, custom requires “persistent,
    often repeated, [and] constant violations . . . .”    
    Id. at 581.
      No constant
    violations have been shown.       Partly, that is the result of there being no
    evidence of anyone previously complaining about the assignment. Such prior
    complaints potentially would have created evidence of the knowledge of
    policymakers and whether they insisted upon the recitation of the pledge.
    Brinsdon has failed to demonstrate the existence of an official policy or
    that the District had knowledge of the assignment. Judgment as a matter of
    law was proper for the District on municipal liability for any constitutional
    violation that may have arisen from the assignment or subsequent actions.
    Thus, our ruling also applies to the claims against the District for retaliation
    and violation of equal protection.
    III.    Qualified Immunity
    “The doctrine of qualified immunity protects government officials from
    civil damages liability when their actions could reasonably have been believed
    to be legal.” Morgan v. Swanson, 
    659 F.3d 359
    , 370 (5th Cir. 2011) (en banc).
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    A “plaintiff has the burden to negate the assertion of qualified immunity once
    properly raised.” Collier v. Montgomery, 
    569 F.3d 214
    , 217 (5th Cir. 2009). To
    establish that qualified immunity does not apply, Brinsdon must prove that
    Santos or Cavazos (1) “violated a statutory or constitutional right, and (2) that
    the right was ‘clearly established’ at the time of the challenged conduct.” See
    
    Swanson, 659 F.3d at 371
    . “A right is clearly established only if its contours
    are ‘sufficiently clear that a reasonable official would understand that what he
    is doing violates that right.’” Wyatt v. Fletcher, 
    718 F.3d 496
    , 502 (5th Cir.
    2013) (quoting Wooley v. City of Baton Rouge, 
    211 F.3d 913
    , 919 (5th Cir.
    2000)).    Another articulation particularly for the school setting is that
    educators are entitled to qualified immunity unless no “reasonable official”
    would have deemed the disputed conduct constitutional. 
    Swanson, 659 F.3d at 371
    . We may begin by analyzing either step of the qualified-immunity
    inquiry. Pearson v. Callahan, 
    555 U.S. 223
    , 236 (2009).
    Brinsdon makes these claims against Santos and Cavazos: (1) her First
    Amendment right to be free from compelled speech was violated; (2) she
    suffered retaliation based on her First Amendment protected speech when she
    was removed from her class; and (3) she was treated unequally in violation of
    the Equal Protection Clause. We will discuss the first two claims later. As to
    the third, we do not separately discuss it inasmuch as the equal-protection
    argument and the First Amendment retaliation argument mirror each other. 5
    That is “because the substantive guarantees of the [First] Amendment serve
    as the strongest protection against the limitation of these rights. . . . [If the
    defendants’ actions] survive substantive review under the specific guarantees
    5    We find no explicit ruling on the equal-protection claim against the individual
    defendants. The district court, though, in its combined rulings on summary judgment and
    granting judgment as a matter of law after Brinsdon presented her case at trial, denied all
    claims. Analytically, the court’s rejection of the First Amendment claims was effectively a
    rejection of the equal-protection claim. With that rejection we concur.
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    [of the First Amendment,] they are also likely to be upheld under an equal
    protection analysis . . . .” A.M. ex rel. McAllum v. Cash, 
    585 F.3d 214
    , 226 n.9
    (5th Cir. 2009). As we will discuss later, we uphold the grant of qualified
    immunity on Brinsdon’s two First Amendment arguments. Consequently, we
    extend that holding to the equal-protection claim.
    On the compelled-speech claim, the district court granted summary
    judgment to Santos and Cavazos under step two of the qualified-immunity
    inquiry, meaning that no clearly established right was violated.            As to
    retaliation, summary judgment was granted to those defendants because the
    only evidence was that Brinsdon was removed not due to her exercise of First
    Amendment rights but because her actions disrupted class.
    We review a grant of summary judgment de novo. LeMaire v. Louisiana
    Dep’t of Transp. & Dev., 
    480 F.3d 383
    , 386 (5th Cir. 2007). Summary judgment
    is appropriate when “there is no genuine dispute as to any material fact and
    the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
    We now examine the extant claims.
    A.    Compelled Speech
    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 . . . .” Riley v.
    Nat’l Fed’n of the Blind of North Carolina, Inc., 
    487 U.S. 781
    , 796–97 (1988).
    Brinsdon argues that Santos, an instrument of the state, unconstitutionally
    compelled Brinsdon to speak against her will.
    The most factually analogous precedent to this case is a 1943 Supreme
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    Court decision that struck down a state statute requiring every schoolchild to
    salute the American flag and recite the Pledge of Allegiance to the United
    States. West Virginia State Bd. of Educ. v. Barnette, 
    319 U.S. 624
    , 642 (1943).
    The Barnette requirement of a pledge began with a 1941 West Virginia statute
    that required each school to conduct courses in history, civics, and the
    Constitution “for the purpose of teaching, fostering and perpetuating the
    ideals, principles and spirit of Americanism . . . .” 
    Id. at 625.
    In early 1942,
    only a month after the attack on Pearl Harbor and the start of the American
    involvement in World War II, the West Virginia State Board of Education
    implemented the statute in part by requiring all teachers and pupils to recite
    daily the Pledge of Allegiance to the United States. 
    Id. at 626.
    Clearly, West
    Virginia sought to have students each day make an operative pledge of
    allegiance, that is, a statement of actual belief.
    The three-judge district court, through Fourth Circuit Judge John J.
    Parker, wrote dramatically of the reason the mandatory pledge had to fall:
    The salute to the flag is an expression of the homage of the soul.
    To force it upon one who has conscientious scruples against giving
    it, is petty tyranny unworthy of the spirit of this Republic and
    forbidden, we think, by the fundamental law.
    Barnette v. West Virginia State Bd. of Educ., 
    47 F. Supp. 251
    , 255 (S.D. W. Va.
    1942). The Supreme Court affirmed. 6 
    Barnette, 319 U.S. at 642
    . It held that
    the state unacceptably sought to compel “a belief and an attitude of mind.” 
    Id. at 633.
    The pledge in Barnette was not just a tool to shape learning. It also
    was a tool to compel patriotism, and this latter goal was unacceptable. The
    statutory penalties for noncompliance were expulsion from school, fines, and
    6Judge Parker had almost made it to the Supreme Court before Barnette did, as he
    was nominated in 1930 for the Court but failed confirmation by a 39-41 Senate vote. J.
    MYRON JACOBSTEIN & ROY M. MERSKY, THE REJECTED 111–22 (1993).
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    even jail. 
    Id. at 629.
    Further, the Court noted that objections to being required
    orally and in writing to accept an idea were “well known to the framers of the
    Bill of Rights,” and it attempted to assuage fears that “patriotism will not
    flourish if patriotic ceremonies are voluntary and spontaneous instead of a
    compulsory routine . . . .” 
    Id. at 633,
    641.
    In a later case, the Court struck down a New Hampshire law that
    required all vehicle license plates to display the motto “Live Free or Die.” See
    
    Wooley, 430 U.S. at 707
    , 717. The Court stated that “as in Barnette, we are
    faced with a state measure which forces an individual . . . to be an instrument
    for fostering public adherence to an ideological point of view he finds
    unacceptable.” 
    Id. at 715.
    Thus, what the Court found objectionable in both
    Barnette and Wooley was the state’s purpose of “fostering public adherence to
    an ideological point of view . . . .” 
    Id. The difference
    with this pledge assignment, the defendants insist, is that
    Santos was not seeking to inculcate beliefs by requiring the recital of the
    Mexican pledge. If there were such evidence in this case, we would reach the
    same result the Supreme Court did in Barnette and Wooley. There is, though,
    no direct evidence here of a purpose to foster Mexican nationalism. Instead,
    the only evidence is that students were, as part of a cultural and educational
    exercise, to recite a pledge of loyalty to a foreign flag and country. Santos
    testified and the class syllabus stated that the pledge was educational, and the
    punishment for noncompliance was a failing grade. It is true that direct
    evidence of motive or intent can be hard to come by. Here, though, only
    speculation might support that either defendant was trying to motivate the
    students to become loyal to Mexico.              While the party opposing summary
    judgment is “entitled to have reasonable inferences drawn in [its] favor, the
    inferences to be drawn must be rational and reasonable, not idle, speculative,
    or conjectural.” Unida v. Levi Strauss & Co., 
    986 F.2d 970
    , 980 (5th Cir. 1993).
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    We also note that the assignment was a singular event; it was not repeated on
    a daily basis. In summary, the compelled speech at issue is a pledge for which
    there is no evidence that its purpose was to compel the speaker’s affirmative
    belief.
    Our specific question is whether a student who objects to a pledge of
    simulated beliefs has a constitutional right to refuse to so pledge. The fact that
    the pledge did not compel a belief does not strip this assignment from
    heightened concerns. Requiring a student not just to voice but to simulate the
    rituals of a pledge of allegiance is serious business. A pledge, whether of
    allegiance to a country or to tell the truth in a court of law, can express an
    intention to carry forth a course of action that may impact matters of public
    concern.    Yet, whatever the proper analysis of compelled recitation of
    simulated pledges may be, no caselaw holds that such analysis is the same as
    Barnette. Indeed, no caselaw has directly addressed this situation.
    First, Barnette referenced but did not analyze the idea of making a
    pledge without actually believing in the words uttered. The Court interpreted
    the Board of Education regulation as being premised on an
    affirmation of a belief and an attitude of mind. It is not clear
    whether the regulation contemplates that pupils forego any
    contrary convictions of their own and become unwilling converts
    . . . or whether it will be acceptable if they simulate assent by
    words without belief and by a gesture barren of meaning.
    
    Barnette, 319 U.S. at 633
    . Despite that language, the Court was clear that it
    was invalidating the requirement because the State cannot “force citizens to
    confess by word or act their faith” in the same orthodoxy of “politics,
    nationalism, religion, or other matters of opinion . . . .” 
    Id. at 642.
    There is no
    evidence that the pledge in Spanish class was seeking to force orthodoxy.
    Second, other circuits have confronted situations dealing with compelled
    student speech, though none are directly applicable to this case. The Seventh
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    No. 15-40160
    Circuit noted it is proper to “deny students the ability to express themselves
    by adopting the words of others,” i.e., commit plagiarism. Hedges v. Wauconda
    Cmty. Unit Sch. Dist. No. 118, 
    9 F.3d 1295
    , 1302 (7th Cir. 1993). The Ninth
    Circuit discussed that a teacher may, without fear of personal liability, “assign
    students to write ‘opinions’ showing how Justices Ginsburg and Scalia would
    analyze a particular Fourth Amendment question.” Brown v. Li, 
    308 F.3d 939
    ,
    953 (9th Cir. 2002). Finally, the Tenth Circuit held that a university does not
    offend the First Amendment when it compels, for legitimate pedagogical
    reasons, a student to recite lines of a play even if the student believes the
    recitation would be contrary to her religious convictions.         Axson-Flynn v.
    Johnson, 
    356 F.3d 1277
    , 1291–92 (10th Cir. 2004).            In sum, it is clearly
    established that a school may compel some speech. Otherwise, a student who
    refuses to respond in class or do homework would not suffer any consequences.
    Students, moreover, generally do not have a right to reject curricular choices
    as these decisions are left to the sound discretion of instructors.
    Third, it is well understood that “[s]peech by citizens on matters of public
    concern lies at the heart of the First Amendment, which ‘was fashioned to
    assure unfettered interchange of ideas for the bringing about of political and
    social changes desired by the people.’” Lane v. Franks, 
    134 S. Ct. 2369
    , 2377
    (2014) (quoting Roth v. United States, 
    354 U.S. 476
    , 484 (1957)). Thus, even a
    non-operative pledge may affect the public and political discourse.
    Nonetheless, First Amendment protections have traditionally been for
    “matters of adult public discourse,” and it is not true that “the same latitude
    must be permitted to children in a public school.” Bethel Sch. Dist. No. 403 v.
    Fraser, 
    478 U.S. 675
    , 682 (1986). The First Amendment rights of students “are
    not automatically coextensive with the rights of adults in other settings.” 
    Id. Students must
    be afforded freedom of speech in school, but the right is “applied
    in light of the special characteristics of the school environment . . . .” Tinker v.
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    No. 15-40160
    Des Moines Indep. Cmty. Sch. Dist., 
    393 U.S. 503
    , 506 (1969).
    As true of us all, teachers and administrators can exercise their
    discretion poorly. This case involved a student’s disagreement with a teacher’s
    curricular choices and First Amendment issues arising from how the
    disagreement was addressed.         We conclude that Santos as teacher, and
    Cavazos as principal, were not ignoring clearly established law when
    compelling a non-operative recitation of the Mexican pledge.            Qualified
    immunity on compelled speech was properly granted.
    B.    Removing Brinsdon from Class
    Brinsdon claims that Santos and Cavazos violated her First Amendment
    rights when they retaliated against her by removing her from class. The
    district court resolved this issue on two bases. Quoting Tinker, the court first
    determined that her removal complied with existing law because her objection
    to the other students’ reciting the pledge and video recording of her classmates
    constituted “interference . . . with the schools’ work or . . . collision with the
    rights of other students[.]” See 
    Tinker, 393 U.S. at 508
    . Second, the district
    court held that Santos and Cavazos were entitled to qualified immunity
    because how existing law applied to the facts was not clearly established.
    We first identify what must be shown on a First Amendment retaliation
    claim. The plaintiffs must prove:
    (1) they were engaged in constitutionally protected activity, (2) the
    defendants’ actions caused them to suffer an injury that would
    chill a person of ordinary firmness from continuing to engage in
    that activity, and (3) the defendants’ adverse actions were
    substantially motivated against the plaintiffs’ exercise of
    constitutionally protected conduct.
    Keenan v. Tejeda, 
    290 F.3d 252
    , 258 (5th Cir. 2002).
    Some of Brinsdon’s briefing indicates she was removed twice from class,
    once at the time of the original assignment of the pledge, and then again for
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    the rest of the semester in mid-October. The latter is clearly supported by the
    record, the first much less clearly.
    Brinsdon claims her September objection to the assignment to recite the
    pledge was one cause for her removal from class. In her deposition, Brinsdon
    stated she was removed from class soon after her October 18 appearance on a
    Fox News broadcast. Though she certainly is bound by her answer, there is
    evidence she may also have been removed at an earlier time. Brinsdon’s
    opening brief on appeal claims she was removed from her Spanish class for the
    entire semester shortly after she voiced her objections to performing the
    pledge, though her deposition does not seem to say that.
    If Brinsdon were removed in September, nothing indicates how long she
    was kept from class at that time. There is an October 19 letter from Santos to
    Cavazos asking for Brinsdon to be removed for the rest of the semester, at least
    implying that any earlier banishment had ended.              Perhaps Brinsdon’s
    interruptions of her classmates caused her to be kept from class only until the
    pledge assignment was completed.
    We have already discussed why Brinsdon’s refusal in September to
    perform the Mexican pledge in the context presented in this case was not the
    exercise of a clearly established constitutional right. Thus, however long a
    removal from class in September may have been, any removal at that time was
    not retaliation for the exercise of a clearly established constitutional right.
    Brinsdon’s only personal exercise of a constitutional right in October was
    her television appearance on Fox News.           That appearance is far from
    emphasized in her appellate briefing, which mentions she was interviewed but
    merges all the controversies as improper bases for her October removal from
    class. Neither the video nor a transcript of her interview is in the record. No
    brief even summarizes what Brinsdon said in her five-minute interview. We
    at least infer that she discussed her views that students at her school should
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    not be required to recite the Mexican pledge, as that controversy is what made
    her newsworthy in some quarters.
    Brinsdon’s appearance on Fox News was nearly contemporaneous with
    her father’s interview by Glenn Beck, and Beck’s website, The Blaze, posting
    the spy-pen video that Brinsdon secretly made. It is unclear whether the spy-
    pen video appeared elsewhere online much earlier than mid-October. The
    defendants have not argued that they may punish Brinsdon for her father’s
    activities.
    Finally, as to the facts, Santos sent a letter to Principal Cavazos on
    October 19, asking for Brinsdon’s removal. Santos claimed that Brinsdon’s
    behavior in class had been disruptive and interfered with teaching the other
    students. Santos called Brinsdon “disrespectful and defiant,” and said she
    demonstrated an “unwillingness to complete assigned coursework” in a proper
    manner.        Brinsdon was removed.           The letter, the evidence most
    contemporaneous to the removal, did not mention national publicity or specific
    disruptions.
    In summary, the controversial October events were the national
    interviews of both Brinsdons and the posting of the spy-pen video.            The
    evidence, though, is that Brenda Brinsdon was removed from class due to the
    posting of the spy-pen video. The district court stated: “Defendants emphasize
    that [Brinsdon’s] removal largely centered on her video recording of a fellow
    student, a violation of school policy.”
    We find no evidence that Brinsdon’s appearance on Fox News or her
    father’s interview on The Blaze had any effect on campus. No deponent singles
    out either interview as causing disruptions. The district court stated that the
    video had “resulted in a disruption of the school and classroom environments.”
    Even if some deponents’ broader statements might be seen as including the
    student’s televised interview as one cause of disruption, the undisputed
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    No. 15-40160
    evidence is that publication of the video was the origin of most of the discord.
    Making unauthorized and secret video recordings of secondary-school classes
    does not represent a recognized First Amendment right, nor does the public
    dissemination of the video. To use Tinker’s formulation, it was an “invasion of
    the rights of others[.]” See 
    Tinker, 393 U.S. at 513
    . No clearly established law
    would have counseled these defendants not to respond to such behavior.
    To summarize, the evidence is that disruptions in mid-October were
    triggered primarily by dissemination of the secret video that showed students,
    with their faces blurred, performing the Mexican pledge. School officials did
    not violate clearly established law when the school reacted to the secretly taken
    video, and the evidence is that is what the officials did.
    We agree with the district court that Brinsdon’s First Amendment rights
    were not violated by school officials reacting to the disruptions that had
    occurred and might continue. Qualified immunity was properly granted to
    Santos and Cavazos on the claim they violated Brinsdon’s First Amendment
    rights by removing her from class.
    AFFIRMED.
    19