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Brinsdon v. McAllen Independent School District

United States Court of Appeals, Fifth Circuit

July 3, 2017

BRENDA BRINSDON, Plaintiff-Appellant
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

          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 The panel's prior opinion is withdrawn, and this opinion is substituted.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 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.


         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 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 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.

          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.


         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 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 ...

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