HOUSTON (CN) — A Texas mother who withdrew her daughter from high school because teachers harassed her for not standing for the Pledge of Allegiance has a viable free-speech claim, a federal judge ruled this week.
LaShan Arceneaux’s 17-year-old daughter M.O. is a senior at Klein Oak High School in Spring, a northern Houston suburb.
Arceneaux sued Klein Oak Independent School District, its Superintendent Bret Champion, four teachers and three principals in October 2017 in federal court.
The mother and daughter claimed the district’s policy of requiring students to get permission from their parents to opt out of the Pledge of Allegiance is unconstitutional.
Arceneaux withdrew M.O. from the high school before the 2017 spring semester after a principal removed her from a sociology class on the assumption that the teacher, defendant Benjie Arnold, would clash with M.O. over her practice of sitting during the pledge, according to the second amended complaint, filed March 12.
Arceneaux says that in a speech to the class on Sept. 21, 2017, Arnold “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.”
Arceneaux’s attorney Randall Kallinen did not immediately respond Wednesday when asked why M.O. sits for the pledge.
The amended complaint says Arceneaux’s removing her daughter from school was the culmination of a harassment campaign that started in September 2014, when M.O.’s teacher, defendant Stephen Naetzker, wrote her up, i.e., disciplined her, and sent her to the office for sitting during the pledge.
The principal, defendant Lance Walters, reportedly backed up Naetzker.
“Walters informed her that Mr. Naetzker had the right to write her up for not standing because of his military service,” the complaint states.
Also, Arceneaux says, the school district did not discipline M.O.’s female classmate H.R. for standing on a desk on Veteran’s Day 2016 and calling M.O. a bitch for not standing for the pledge.
Arceneaux and her daughter seek compensatory and punitive damages for violations of due process, free speech and equal protection, under the First, Fourth, and 14th Amendments.
Arceneaux claims she spent $10,000 homeschooling M.O. from January to August 2017.
M.O. returned to the school for the fall 2017 semester after the American Atheists Legal Center sent a letter to another school administrator, defendant Principal Brian Greeney, informing Greeney that M.O. was coming back, and asking him to ensure her constitutional rights were respected during her senior year.
In response, the district’s counsel tried to sooth M.O.’s fears of further harassment with a letter stating: “‘KISD policy allows a student to be excused from participation in the Pledge of Allegiance’ and that Klein Oak administrators were ‘aware [M.O. would be] returning to Klein Oak High School, and they are pleased that she is.’” (Brackets in complaint.)
Arceneaux says that after she filed her original complaint in October 2017, M.O.’s debate team coach, defendant Angie Richard, kept asking for details about the litigation and when M.O. refused to discuss it, Richard demoted her. .
U.S. District Judge Lee Rosenthal refused to dismiss the lawsuit Tuesday, saying this stage of the case requires her to take plaintiffs’ claims as credible.
Rosenthal found that Arceneaux and M.O. defeated the school district’s motion to dismiss by making a legitimate municipal liability claim, which requires proof of an explicit or unwritten custom or policy that is the moving force behind a constitutional violation.
Rosenthal also let stand the First Amendment free-speech and free-exercise claims, but dismissed their First Amendment establishment clause claim. The clause states: “Congress shall make no law respecting an establishment of religion.”
Rosenthal cited Fifth Circuit precedent in Croft v. Perry, in which the New Orleans-based appellate court rejected a lawsuit that claimed the Texas Pledge of Allegiance was unconstitutional due to its inclusion of the phrase “under God,” language it shares with the Pledge of Allegiance.
“The pledge is a patriotic exercise, and it is made no less so by the acknowledgment of Texas’s religious heritage via the inclusion of the phrase ‘under God.’ A pledge can constitutionally acknowledge the existence of, and even value, a religious belief without impermissibly favoring that value or belief,” the Fifth Circuit wrote for Croft in 2009, cited in Rosenthal’s order.
Rosenthal also upheld M.O.’s equal-protection claim, but dismissed Arceneaux’s equal-protection claim, in which the mother argued that the school district treated her differently than other parents who exempted their children from the district’s pledge policy.
She dismissed a due-process claim over a teacher’s confiscation of M.O.’s cellphone, because it was returned to M.O.
Though Rosenthal dismissed half of the lawsuit’s six claims, the order bodes well for M.O and Arceneaux.
“The plaintiffs here have pleaded a plausible First Amendment free-speech claim based on Klein Oak’s discipline and harassment of M.O. in retaliation for her expressive conduct. Those allegations also support an equal-protection claim that M.O. was treated more harshly than other students based on her beliefs,” wrote Rosenthal, chief judge of the Southern District of Texas.
Attorneys representing the school district did not respond Wednesday to a request for comment.
The dispute calls to mind the controversy surrounding NFL players kneeling for the national anthem. NFL owners drew immediate backlash from players Wednesday with the announcement of a new policy wherein players on the field during the anthem must stand, but giving them the option of staying in the locker room, or off the playing field, during the song.