Public official entitled to qualified immunity since First Amendment claims are so complex says 5th Circuit

Morgan v. Swanson No. 13-40433 (5th Cir. April 2, 2014)

This is the continuation of a First Amendment/Qualified Immunity case where the U.S. Court of Appeals for the Fifth Circuit dismissed a public official (high school principal) on qualified immunity grounds noting that First Amendment jurisprudence is so complex, it is difficult for an official to determine when a right is clearly established.

During an in-class winter party Morgan intended to distribute candy during a gift exchange bearing a religious message.  Principal Swanson did not permit the distribution, but did allow the candy to be placed on an information table where other families could pick up the material. Morgan noted that other children could exchange gifts and objected to being excluded due to the religious message and sued. The 5th  Circuit, sitting en banc, previously held that Principal Swanson unconstitutionally discriminated on the basis of viewpoint when she did not allow distribute of his gifts. See v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc). Nevertheless, it granted Swanson qualified immunity, finding relevant law too “abstruse” and “complicated” for Swanson to have known how to handle the situation.

Morgan now asserts he too experience viewpoint discrimination when he was prohibited from distributing religious materials to other adults in the classroom. The district court dismissed Swanson based on qualified immunity and Morgan appealed. Without determining the constitutionality of Swanson’s conduct regarding adult distribution, the court noted its analysis “of existing law reveals that educators are nearly always immune from liability arising out of First-Amendment disputes. The rare exceptions involve scenarios in which there exists a precedent precisely on point.”  The nearly universal prohibition against viewpoint discrimination does not inform an official as to what, precisely, constitutes viewpoint discrimination. Nor does it enlighten a teacher as to the permissible extent of content restriction in a classroom setting. For these reasons, the 5th Circuit has already rejected the viewpoint discrimination principle as “far too general” to establish the law in this context.  The concurring opinions emphasized exactly how complex First Amendment law is, especially when balancing the restrictions of the Establishment Clause (requiring the government to remain religiously neutral) and that most officials will have a difficult time knowing exactly how to handle such situations. So, the court held Swanson is entitled to qualified immunity.  This case, especially the concurring opinion of Justice Benavides, can be helpful when analyzing First Amendment qualified immunity arguments for any official, not just teachers or principals.

If you would like to read this opinion click here. Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges (PER CURIAM) with Justices Benavides and Clement writing separate concurrences. Attorney for Appellant – Allyson Newton Ho, Dallas, TX, Attorney for Appellee – Thomas Phillip Brandt, Dallas, TX.

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