from the United States District Court for the Southern
District of Texas
DAVIS, PRADO, and SOUTHWICK, Circuit Judges.
ON PETITION FOR REHEARING EN BANC
H. SOUTHWICK, Circuit Judge
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is withdrawn, and this opinion is substituted.
Brenda Brinsdon was a sophomore at a high school in McAllen,
Texas, she was required to participate in what defendants
claim was a mock 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.
AND PROCEDURAL BACKGROUND
is a municipality whose limits extend to Texas's border
with Mexico. It has a population of 138,
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.
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.
Monday, Santos distributed an assignment to all her classes.
It required students to memorize and recite in Spanish the
Mexican Pledge of Allegiance and sing the Mexican National
Anthem by that Friday, September 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
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.
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
undisputed, however, that Brinsdon was given an alternative
assignment on which she received a "C." Most of the
other students received 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
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
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
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
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.
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.
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.
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 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
we review only these issues and rulings:
I. Possible mootness of the case due to Brinsdon's
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 ...