American Atheists has won yet another legal victory on behalf of a teenager who said she was perpetually harassed by one of her high school teachers for refusing to say the Pledge of Allegiance.
Some backstory is important here: At the time the original lawsuit was filed, in 2017, then-17-year-old Mari Leigh Oliver was a student at Klein Oak High School in Texas, and she chose not to stand during the Pledge. Her teachers and her principal, completely ignoring the law that gave her that right, constantly punished her for that decision. In some cases, when another student bullied her, they did nothing to put a stop to it.
The allegations in the lawsuit made by Oliver were just astonishing.
As a freshman, Oliver was written up (a form of punishment) by her World Geography teacher for remaining seated. When she told the principal what happened, the principal defended the teacher by saying he was allowed to write her up “because of his military service.” That teacher was never disciplined. In fact, on another occasion, he temporarily took away Oliver’s phone because of her “lack of respect” for the Pledge. (The lawsuit also noted that he read Bible passages to the students on multiple occasions.)
The following year, in a journalism class, Oliver’s teacher repeatedly told her to stand for the Pledge. That teacher even reported Oliver to her guidance counselor… who also told her to stand. Neither adult was ever disciplined for “singling [Oliver] out in class for peacefully and non-disruptively engaging in free speech.”
When Oliver was a junior, her protest resulted in a classmate standing up and calling her a “bitch.” That same student later posted images on Snapchat, including one with the caption, “Like if you don’t respect [our] country then get the fuck out of it[.]”
Despite a forced apology in front of the principal, that same student later told another classmate (within earshot of Oliver), “There’s the bitch that sits for the Pledge.”
It didn’t get any better later that school year when Oliver was placed in the same sociology class as the bully. Trying to prevent another conflict, the principal removed Oliver from the class… essentially, punishing her for what the bully was doing.
That led Oliver’s mother LaShan Arceneaux to withdraw her from Klein Oak for a few months and pursue homeschooling instead, despite expenses eventually totaling more than $10,000.
Things didn’t improve during her senior year. Oliver came back to Klein Oak and was back in that sociology teacher’s classroom. The bully (presumably passing the class the year before) wasn’t there, but the teacher, Benjie Arnold, was apparently eager to take on that same role.
According to the original lawsuit, Arnold told students “that sitting for the Pledge was a privilege, not a right, and that people who sit for the Pledge are unappreciative and disrespectful, stating that all they do is take from society.” He also, on another occasion, “compared people who refuse to say the Pledge to Soviet communists, members of the Islamic faith seeking to impose Sharia law, and those who condone pedophilia.” He told students to transcribe the words of the Pledge as an assignment and gave Oliver a failing grade when she refused to play along.
At one point, Arnold played Christian music in the classroom and “stared at Oliver continuously as the song played.” In other words, the story arc went from badgering, to bullying, to batshit crazy.
That’s when Oliver and her mother filed their lawsuit with the help of American Atheists. Over the course of the next few years, many of the claims against most of the defendants were dismissed… but the one against the sociology teacher, Benjie Arnold, remained.
The question involved whether Arnold could be sued for damages or whether qualified immunity shielded him from those potential consequences. Was the constitutional right he violated so clearly established that he could be held financially liable for his actions?
Arnold’s defense was that he was immune. He said that, under Texas law, Oliver was required to say the Pledge (barring a written exemption from her mother, which is in dispute) and that forcing students to write the Pledge on paper was a general assignment and not a form of retaliation. He basically argued that he didn’t violate her constitutional rights at all, much less in such an egregious way so as to put himself in any kind of legal risk.
This past July, the Fifth Circuit Court of Appeals ruled that the case can indeed move forward — dismissing Arnold’s attempt to have the whole thing tossed out. It was a 2-1 decision and the lone dissenter was Kyle Duncan, a judge nominated by Donald Trump, who is widely seen as one of his more insane right-wing selections (which is saying something). Duncan had previously made headlines for opposing same-sex marriage and purposely misgendering a trans person in his courtroom.
Duncan’s dissent in this case read more like a diatribe appropriate for Breitbart, not a legal document worthy of an appellate court judge. It referenced Dr. Seuss being “controversial,” implied we live in a society where racism isn’t pervasive, and cited the work of anti-“Critical Race Theory” activist Christopher Rufo.
Arnold appealed that decision to the full Fifth Circuit bench, hoping to overturn the ruling.
Yesterday, we learned that gambit failed. A Fifth Circuit panel voted 10-7 to deny a rehearing, saying rather simply, “at the request of one of its members, the court was polled, and a majority did not vote in favor of rehearing.” (The seven who supported a rehearing included two judges appointed by Ronald Reagan, one by George W. Bush, and four by Donald Trump. The 10 against included a coalition of appointees by Bush 43, Bill Clinton, Barack Obama, and Trump.)
In explaining the decision against rehearing the case (meaning he sided with the student), Judge James C. Ho wrote this:
… [It’s] possible, to be sure, that Arnold can convince a jury that he was trying to further a legitimate pedagogical objective, not to punish Oliver for disagreeing with him. But that is precisely the point—the record evidence is sufficient to warrant further proceedings, and thus to preclude summary judgment on grounds of qualified immunity.
… [Today’s decision] affirms our Nation’s founding commitment to freedom of speech. [It] enforces the First Amendment where it is increasingly needed—in public school classrooms nationwide. A decision to deny qualified immunity and hold public officials accountable where the constitutional violation is not only obvious, but trending.
In short, this case should proceed, not get tossed out. Arnold shouldn’t get to avoid the potential consequences of his actions if they’re found to be unconstitutional. (That same judge, however, later lamented, “we increasingly live in a country that does not value freedom.” Which makes it sound like he hates what Oliver did but can’t find a legal justification to protect Arnold. Judge Ho isn’t the hero you’re looking for, though this decision was the right one.)
American Atheists celebrated the ruling:
“This is an important victory for nonreligious Americans’—and all Americans’—freedom of speech,” said Geoffrey T. Blackwell, American Atheists’ Litigation Counsel. “The classroom is not a pulpit. It is a place of education, not indoctrination. No student should be punished for exercising her First Amendment rights.”
“Mr. Arnold should have been teaching students about American freedom, not American intolerance,” said the student’s civil rights lawyer, Randall Kallinen, who is serving as local counsel in the case. “A student’s right to peaceful freedom of expression does not end at the schoolhouse steps.”
“This decision by the Fifth Circuit affirms what we’ve said all along: teachers who trample the constitutional rights of their students will be held accountable,” added Blackwell.
This case is far from over. There’s no guarantee Oliver will win, but the amount of evidence suggesting her teacher retaliated over her decision not to participate in the pointless Pledge ritual should be clear to anyone looking at the case. It’s long past time to judge this case on its merits.
It’s also long overdue for people to recognize that the Pledge of Allegiance doesn’t unite us. It’s always been divisive. And in this case, it was a weapon for the teacher.
(Large portions of this article were published earlier.)