Morgan v. Swanson

659 F.3d 359, 2011 U.S. App. LEXIS 19656, 2011 WL 4470233

Opinions

BENAVIDES, Circuit Judge:

This is a qualified immunity appeal that asks us to decide whether defendant school principals violated clearly established law when they restricted elementary students from distributing written religious materials while at school. Answering this question requires recourse to a complicated body of law that seeks, often clumsily, to balance a number of competing First Amendment imperatives. This body of law failed to place the constitutionality of the defendants’ conduct beyond debate, so they are entitled to qualified immunity. Parts I through IV of this opinion, together with the separate concurrences of Chief Judge Jones, Judge King, Judge Garza, Judge Owen and Judge Dennis, reflect the views of the majority of the en banc Court granting qualified immunity to the principals and the judgment reversing the district court.¹

Although the law was not clearly established, a separate majority of the Court holds that the principals’ actions — as alleged in the complaint — were unconstitutional. Parts III A, C, and D of Judge Elrod’s opinion represent the opinion of the court on these issues, with special concurrences by both Judge Prado and Judge Owen.

I

The plaintiffs in this case are four former elementary-school students in the Plano Independent School District (PISD), along with their parents. The plaintiffs are evangelical Christians, which is to say, in their own words, that their faith “strongly emphasizes the personal nature of personal evangelism and dissemination of religious viewpoint material.” They explain that their religious training and beliefs require them to “communicate religious viewpoint ideas to their peers, classmates, and other students,” so as to “introduce ... classmates ... to the truth of the Christian Faith.” These students and their families have sued PISD because school officials have, at various times and in various ways, prevented them from evangelizing while at school. More specifically, the linchpin of the plaintiffs’ claims is that they have been prohibited from distributing written religious materials while at school.

Before us today are two individual defendants’ motions to dismiss for qualified immunity.² Jonathan Morgan and Stephanie Yersher (with their parents) bring damages claims against, respectively, Lynn Swanson, principal of Thomas Elementary School, and Jackie Bomchill, former principal of Rasor Elementary School.³ The district court denied Swanson and Bomchill’s joint motion to dismiss for qualified immunity. The principals appealed, and a panel of this Court affirmed.⁴ The principals petitioned for rehearing en banc, and we granted their motion.⁵

A

Plaintiff Jonathan Morgan alleges that Principal Swanson violated his First Amendment rights in connection with a so-called “winter-break” party at Thomas Elementary in December of 2003. The winter-break parties were conducted yearly at Thomas Elementary in individual classrooms for attendance by all students. The parties were conducted pursuant to written “guidelines and regulations”⁶ and were planned and supervised by volunteer room parents and individual classroom teachers. Although the parties were conducted in individual classrooms, they were governed across each grade level by strict, specific guidelines.

Third-grader Jonathan Morgan wished to distribute a gift to his classmates at the 2003 winter-break party, as he alleges was common practice at his school. Students typically brought gifts for their classmates to the winter-break parties in gift bags, or “goody bags.” Morgan’s proposed gift was a “candy cane ink pen,” attached to a laminated bookmark containing a written message, “The Legend of the Candy Cane”:

A candy maker wanted to invent a candy that was a witness to Christ.

First of all, he used a hard candy because Christ is the Rock of Ages. This hard candy was shaped so that it would resemble a “J” for Jesus, or, turned upside down, a shepherd’s staff. He made it white to represent the purity of Jesus.

Finally, a red stripe was added to represent the blood Christ shed for the sins of the world, and three thinner red stripes he received on our behalf when the Roman soldiers whipped him. Sometimes a green stripe is added as a reminder that Jesus is a gift from God.

The flavor of the cane is peppermint, which is similar to hyssop. Hyssop is in the mint family and was used in the Old Testament for purification and sacrifice. Jesus is the pure lamb of God, come to be a sacrifice for the sins of the world.

So, every time you see a candy cane, remember the message of the candy maker: Jesus is the Christ!

Morgan intended to distribute these “Legend of the Candy Cane” pens inside his gift bags, which would be inscribed, “TO: [Classmate’s name], FROM: Jonathan Morgan.”⁷

Morgan’s parents suspected, based on conversations with other parents, that school officials would not allow Jonathan to distribute the “Legend of the Candy Cane” in the classroom. Thus, they arranged a' meeting with Principal Swanson on December 4, 2003.⁸ Principal Swanson confirmed at the meeting that Jonathan would not be allowed to distribute “The Legend of the Candy Cane” at the winter-break party. She offered that he could distribute a goody bag at the party containing nonreligious items, and that he would be permitted to distribute “The Legend of the Candy Cane” at a table in the school library. This offer failed to mollify the Morgans, who never attempted to avail themselves of the “library information table” option. Instead, they consulted their attorney, who sent a demand to Swanson on December 17, 2003, informing her that it was unconstitutional to exclude religious gifts from the classroom parties. Counsel further opined that any Establishment Clause concerns arising from the distribution of religious materials in elementary schools were unfounded. The Morgans demanded that Jonathan “and other students” be allowed to distribute religious gifts at the classroom parties, lest they seek redress in federal court.

The next day, December 18, 2003, counsel for the school district responded.⁹ The district denied the Morgans’ allegations that only religious gifts would be forbidden at the winter-break parties, citing PISD’s policy FNAA (LOCAL), which prohibited distribution of “any written material, tapes, or other media over which the school does not exercise control and that is intended for distribution to students” without prior approval from the school. The day before, Carole Griesdorf, another PISD administrator, had given a similar explanation in an e-mail to the Morgans, noting that “[s]tudents may not hand out anything to their classmates in class in bags or separately.” The district also reiterated Swanson’s offer for Jonathan to distribute his materials in the school library.

Although the district’s official position was that no outside materials were to be circulated in the classrooms, it maintained that it would be within its rights to specifically restrict distribution of religious messages in the classroom.¹⁰ Counsel pointed the Morgans to the Third Circuit’s decision in Walz v. Egg Harbor Touwnship Board of Education,11 in which that court upheld a school’s restriction on a student seeking to distribute a written message — almost verbatim with “The Legend of the Candy Cane” — at a classroom winter holiday party.

Despite having been told that Jonathan would not be allowed to distribute “The Legend of the Candy Cane” at the party, the Morgans nevertheless brought the items to the classroom the day of the party. They confronted Principal Swanson, who again offered that the Morgans could leave the gifts in the library for his classmates to pick up. The Morgans complained that they had observed other students bringing their goody bags into the classroom. In response, Principal Swanson returned to her office and broadcast an announcement to the entire school: students were not permitted to bring outside materials into the classroom for distribution.

The Morgans were unsatisfied with Swanson’s “no materials” loudspeaker announcement because Swanson failed to return to Jonathan’s classroom and personally require the other students to remove their goody bags. After the announcement, they confronted Swanson again, this time complaining that Jonathan’s teacher, Mrs. Helmke, had given a different explanation for why he would not be allowed to distribute “The Legend of the Candy Cane” — its religious viewpoint. The Morgans complain that Swanson failed to “correct” or “apologize for” Mrs. Helmke’s actions, or to “state that Mrs. Helmke acted contrary to PISD policy and custom” or take “corrective measures” against her. In the end, although district officials offered a viewpoint-neutral explanation, the Morgans allege that Jonathan was the only student forbidden from distributing his chosen gift at the 2003 winter-break party.¹²

B

Plaintiff Stephanie Versher alleges that defendant Jackie Bomchill violated her First Amendment rights by prohibiting her from distributing written religious materials at Rasor Elementary School on three separate occasions. All of these occurred in January of 2004, during Stephanie’s second-grade year. In the first incident, Stephanie attempted to distribute to her classmates tickets to a passion play — -a “dramatic representation of the scenes connected with the passion and crucifixion of Jesus”¹³ — to be performed at a local church. Like the other plaintiffs in this case, it is Stephanie’s sincere religious belief that she “should share her beliefs with her friends,” apparently including this representation of the “crucifixion of Jesus Christ.”

The complaint provides little detail regarding Stephanie’s distribution of the passion-play tickets. It is unclear where she distributed them: we do not know whether it was in the hallway, the classroom, the restroom, or the playground. Nor is it clear when she distributed the tickets, beyond the conclusory label that she distributed them “during non-curriculum times.” We do not know whether Stephanie distributed the tickets during passing period between classes, in the classroom before the bell rang, or in the moments in between her teacher’s lessons. It is also unclear how many tickets Stephanie distributed. The complaint alleges that she approached other students to “talk to [them] about the drama presentation depicting the crucifixion of Jesus Christ” and “asked them whether or not they would like to attend.” But it fails to allege how many of them accepted the tickets, nor whether she offered them to all interested students. We also do not know hoiv she chose which students to approach, nor whether she approached them at times when they were free to walk away and not listen to her thoughts on “the crucifixion of Jesus Christ” before declining the tickets.

When defendant Jackie Bomehill, the principal of Stephanie’s school, became aware that Stephanie was distributing these tickets, she instructed Stephanie’s teacher to stop her from distributing them. She also asked Stephanie’s teacher to collect the tickets from the students that had already received them.

The second incident between Stephanie and Principal Bomehill occurred later that same month, in conjunction with Stephanie’s “half-birthday” party. PISD allows students to celebrate their birthdays or “half birthdays” (for students born in the summer) at school with their classmates. These parties occur during the school day, “primarily at the end of the lunch period or during a snack break between instructional time.” The complaint notes that the school allows students to bring a snack and a small gift to distribute to their classmates. It does not indicate whether these parties typically occur in the classroom, nor whether classmates’ attendance is optional or mandatory.

The day of Stephanie’s “half-birthday” party, her mother Sherrie Versher brought brownies to share with Stephanie’s classmates, with two pencils attached. One was inscribed with the word “Moon,” and the other read, “Jesus loves me this I know for the Bible tells me so.” Sherrie Versher apparently was concerned that Stephanie would not be allowed to distribute the “Jesus” pencils because of their religious message, so she proceeded to Principal Bomchill’s office. At their meeting, Bomehill informed Sherrie Versher that Stephanie could distribute the brownies and the “Moon” pencil, but that she would not be allowed to distribute the “Jesus” pencils. Versher then left Bomchill’s office to call her attorney. It is not clear what advice Versher received, but when she returned, she sought only to confirm that the reason the “Jesus” pencils were not allowed was their religious message. Bomehill confirmed this and offered Versher an alternative to distributing the “Jesus” pencils during the school day: Stephanie would be allowed to distribute the pencils after school “outside of the school building.”

During the time Versher was in Bomchill’s office, Versher was presented with a letter from John Beasley, a campus security official, regarding the earlier incident with the passion-play tickets. Campus security was apparently under the mistaken impression that Sherrie Versher herself (rather than her daughter) had distributed the tickets at Rasor Elementary. The letter informed Sherrie Versher of the school’s policy forbidding distribution of materials by an outside person without permission and indicated that “appropriate law enforcement officials may be called when a person refuses to follow the procedures for submitting materials and fails to leave the premises when asked.”

After the meeting in Bomchill’s office, the situation escalated into hostility. As Sherrie Versher left the school offices, she “thought out loud to herself’: “ ‘Satan is in the building.’ ” It is unclear to whom this “Satan” commentary was directed, but after her “Satan” statement, she alleges that school officials “stalked” her at various locations throughout the school building. Sherrie proceeded to the school cafeteria, where her daughter Stephanie was eating lunch. Sherrie informed her daughter that she would not be allowed to distribute the “Jesus” pencils during school, but that Bomehill had agreed she could distribute the pencils after school, “outside of the school building.” Sherrie gave Stephanie the “Jesus” pencils and instructed her to put .them in her backpack until after school, at which time her friends “could meet her on the school lawn to get those pencils.”

The third Versher-Bomchill incident occurred later that day, after school. Stephanie Versher again attempted to distribute her “Jesus” pencils, this time “outside of the school building on the school sidewalk and lawn.” The complaint carefully alleges that Stephanie was standing “amongst a small group of her classmates,” and that she was handing out the “Jesus” pencils only to classmates that approached her and requested one. When Bomchill saw Stephanie distributing the pencils after school, she approached her and told her she could not distribute them “while on PISD school property,” and that if Stephanie tried to distribute the crucifixion tickets or “Jesus” pencils again “while on school property at any time, she would be ‘kicked out of the school.’ ” This touched off a disagreement between Bomchill and Sherrie Versher, who was standing by watching her daughter distribute the pencils. “Either Bomchill or Beasley then accused Sherrie Versher of being ‘purposely defiant’ ” of earlier instructions that Stephanie could only distribute her “Jesus” pencils “outside of the building and ‘across the street.’ ” Versher asserts that this accusation was false and represents a retreat from Bomchill’s earlier position that Stephanie could distribute the religious pencils so long as she was outside the school.

II

The action before us is an interlocutory appeal from the district court’s denial of a motion to dismiss on qualified immunity. “[A]n order denying qualified immunity, to the extent it turns on an ‘issue of law,’ is immediately appealable.”¹⁴ Our jurisdiction in this context extends to interlocutory appeals taken from both denials of motions to dismiss and denials of motions for summary judgment.¹⁵ We review de novo a district court’s refusal to dismiss on the basis of qualified immunity.¹⁶ In so doing, we must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the nonmoving party.¹⁷ However, we do not presume true a number of categories of statements, including legal conclusions; mere “labels”; “[tjhreadbare recitals of the elements of a cause of action”; “conclusory statements”; and “naked assertions devoid of further factual enhancement.”¹⁸

III

The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be le gal.¹⁹ This immunity protects “all but the plainly incompetent or those who knowingly violate the law,”²⁰ so we do not deny immunity unless “existing precedent must have placed the statutory or constitutional question beyond debate.”21 The basic steps of our qualified-immunity inquiry are well-known: a plaintiff seeking to defeat qualified immunity must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”²²

Courts have discretion to decide which prong of the qualified-immunity analysis to address first.²³ Here, because our resolution of this appeal turns principally on our conclusion that the rights asserted by the plaintiffs were not clearly established, we address step two of the qualified-immunity inquiry first.

IV

We hold today that the principals are entitled to qualified immunity because clearly established law did not put the constitutionality of their actions beyond debate. When educators encounter student religious speech in schools, they must balance broad constitutional imperatives from three areas of First Amendment jurisprudence: the Supreme Court’s school-speech precedents, the general prohibition on viewpoint discrimination, and the murky waters of the Establishment Clause. They must maintain the delicate constitutional balance between students’ free-speech rights and the Establishment Clause imperative to avoid endorsing religion. “The many cases and the large body of literature on this set of issues” demonstrate a “lack of adequate guidance,”²⁴ which is why no federal court of appeals has ever denied qualified immunity to an educator in this area. We decline the plaintiffs’ request to become the first.

A

Before discussing the substantive law in this case, we turn to first principles to guide our determination of what it means for the law to be “clearly established.” When considering a defendant’s entitlement to qualified immunity, we must ask whether the law so clearly and unambiguously prohibited his conduct that “every ‘reasonable official would understand that what he is doing violates [the law].’ ”²⁵ To answer that question in the affirmative, we must be able to point to controlling authority — or a “robust ‘consensus of per suasive authority’ ”²⁶ — that defines the contours of the right in question with a high degree of particularity.

Where no controlling authority specifically prohibits a defendant’s conduct, and when the federal circuit courts are split on the issue, the law cannot be said to be clearly established.²⁷ This is true even when the circuit split developed after the events in question.²⁸ As the Supreme Court explained, “if judges thus disagree on a constitutional question, it is unfair to subject [government officials] to money damages for picking the losing side of the controversy.”²⁹

Further, the Supreme Court has held that generalizations and abstract propositions are not capable of clearly establishing the law. The Supreme Court recently — and forcefully — underscored this point in Ashcroft v. al-Kidd, where it noted, with some exasperation, that it has “repeatedly told courts ... not to define clearly established law at a high level of generality.”³⁰ This rule is eminently sensible, of course, as the Court has explained:

[T]he right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause ... violates a clearly established right.... But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstone of [qualified immunity].”³¹

Although the Supreme Court has repeatedly admonished courts not to define clearly established law at a high level of generality, this does not mean that “a case directly on point” is required.³² Rather, “existing precedent must have placed the statutory or constitutional question beyond debate.”33 The sine qua non of the clearly-established inquiry is “fair warning.”³⁴ Thus, we must ask “not only whether courts have recognized the existence of a particular constitutional right, but also ... whether that right has been defined with sufficient clarity to enable a reasonable official to assess the lawfulness of his conduct.”³⁵

The Supreme Court’s admonition in alKidd that we should not “define clearly established law at a high level of generality” sits in tension with its earlier statement in Hope v. Pelzer that “general statements of the law are not inherently incapable of giving fair and clear warning,” at least in a certain category of “obvious” cases.³⁶ In Hope, the Court noted that the general Eighth Amendment prohibition against the unnecessary and wanton infliction of pain “arguably” gave the defendants “fair warning” that it was unconstitutional to strip a prisoner shirtless and chain him to a hitching post (a painful stress position) for seven hours in the Alabama sun. But the Court’s suggestion that generalizations can sometimes clearly establish the law was dicta; the Court did not rest its qualified-immunity decision on such a broad statement. It relied instead on binding circuit precedent prohibiting extremely similar conduct, including “handcuffing inmates to the fence and to cells for long periods of time.”³⁷

The al-Kidd Court, in admonishing lower courts “not to define clearly established law at a high level of generality,” did not discuss or even cite Hope, nor other earlier opinions reflecting a similar concern that a damages remedy be available for “obvious” or flagrant constitutional violations.³⁸ This silence is puzzling given that al-Kidd reversed a Ninth Circuit decision denying immunity in reliance on Hope.39 Adding to the perplexity is that, in its next major “clearly established” opinion after Hope, the Supreme Court granted qualified immunity because there were no cases that “squarely govern[ed].”⁴⁰ That said, this case does not call on us to decide whether the Court’s statements in Hope survive alKidd: the constitutional issue in this case is far from “beyond debate,” as evidenced by a large body of oft-conflicting case law and the variety of opinion among members of this Court. We leave for another day the question of whether and when a constitutional violation may be so “obvious” that its illegality is clear from only a generalized statement of law.

B

Because no specific and factually analogous precedent guides our determination of this case, we look first to the Supreme Court’s general school-speech precedents. In Tinker v. Des Moines Independent Community School District, the Court famously held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”⁴¹ This decision has been called the “high water mark” of student speech rights.⁴² But with every subsequent student-speech decision, the Supreme Court has “expanded the kinds of speech schools can regulate.”⁴³ Indeed, the rights announced in Tinker do not extend to several broad categories of student speech: “lewd, indecent, or offensive” speech;⁴⁴ school-sponsored speech;⁴⁵ and speech “that a reasonable observer would interpret as advocating illegal drug use.”⁴⁶ This contraction of student speech rights in public schools has continued even as the Supreme Court has broadened First Amendment rights in other contexts, including in cases involving minors.⁴⁷ Indeed, the Court has long recognized that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults” (or even children) “in other settings.”⁴⁸ Put differently, when minors speak in public schools, the Supreme Court has held that what is good for the goose is not invariably good for the gander.⁴⁹

We thus evaluate student speech claims “ ‘in light of the special characteristics of the school environment,’ ”⁵⁰ beginning by categorizing the student speech at issue.⁵¹ This is not always an easy task. The speech restrictions in this case are alleged to be viewpoint-specific, but not lewd or drug-related, so we must decide whether to apply the general rule of Tinker or the Hazelwood rule that applies to curricular or “school-sponsored” speech.⁵²

Tinker addressed the question of when and “whether the First Amendment requires a school to tolerate particular student speech” that “happens to occur on the school premises.”⁵³ School officials may only restrict such private, personal expression to the extent it would “ ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ ”⁵⁴ or “impinge upon the rights of other students.”⁵⁵ Hazelwood, by contrast, addressed a different question: the scope of “educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”⁵⁶ This is speech that occurs within the context of “school-sponsored” activities, or activities that “may fairly be characterized as part of the school curricu lum.”⁵⁷ “School-sponsored” activities are by no means limited to the “traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills.”⁵⁸ Educators enjoy far greater latitude to regulate this latter category of expression and do not offend the First Amendment “so long as their actions are reasonably related to legitimate pedagogical concerns.”⁵⁹

This case presents the difficult question of exactly when Hazelwood’s more deferential standard applies. Neither the Supreme Court nor this Court has explained whether Tinker or Hazelwood governs students’ dissemination of written religious materials in public elementary schools, whether at official parties, after school on the “lawn and sidewalk,” or at unspecified times and in unspecified places during the school day. Nor do the facts of Tinker and Hazelwood offer much guidance. The “private speech” at issue in Tinker was the “silent, passive expression of opinion”⁶⁰ of students who wordlessly wore black armbands to school to protest the Vietnam War. Hazelwood involved student-authored articles produced for the school newspaper as part of a class.

The critical inquiry in deciding whether speech is “school-sponsored” under Hazelwood is whether it could reasonably be understood to bear the school’s imprimatur, which is synonymous with “sanction,” or “approval.”⁶¹ Relevant considerations include (1) where and when the speech occurred;⁶² (2) to whom the speech was directed and whether recipients were a “captive audience”;⁶³ (3) whether the speech occurred during an event or activity organized by the school, conducted pursuant to official guidelines, or supervised by school officials;⁶⁴ and (4) whether the activities where the speech occurred were designed to impart some knowledge or skills to the students.⁶⁵

The plaintiffs urge a far narrower reading of Hazelwood, arguing that it represents the slightest of exceptions to the broad speech rights articulated in Tinker. But their view is out of step with a number of our sister circuits, which have treated Hazelwood as creating a broad category of speech restrictions entitled to deference from the federal courts.⁶⁶ These courts have recognized “how broadly the Supreme Court has defined school curricula for Hazelwood!s purposes.”⁶⁷ Most notable for this case are the Third and Seventh Circuit’s applications of Hazelwood in the elementary-school context. In a ease remarkably similar to this one, the Third Circuit held that Hazelwood governed holiday parties held in elementary-school classrooms.⁶⁸ And the Seventh Circuit held that the Hazelwood standard governed an elementary student’s attempt to distribute invitations to a meeting at his church, even “during non-instruetional times.”⁶⁹

Further complicating our inquiry is the fact that Tinker's application in the elementary-school context has never been clearly established.⁷⁰ Tinker did not, by its own terms, address the rights of elementary students or involve elementary-aged plaintiffs. Indeed, the petitioners in that case were two high-school students (ages 15 and 16, respectively), and an eighth-grader (age 13).⁷¹ Neither the Supreme Court nor this Court has expressly extended Tinker-based speech rights into the elementary-school setting. And at least two of our sister circuits have expressly doubted whether and to what extent Tinker applies to protect speech in public elementary schools.⁷²

Central to these courts’ speculation that Tinker may not apply in public elementary schools is the idea that “age is a relevant factor in assessing the extent of a student’s free speech rights in school.”⁷³ The Supreme Court has long held that “a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics.”⁷⁴ Further, some courts have found the traditional justifications for a robust First Amendment lacking in the elementary-school context. As the Seventh Circuit noted, “[t]he ‘marketplace of ideas,’ an important theme in the high school student expression cases, is a less appropriate description of an elementary school, where children are just beginning to acquire the means of expression.”⁷⁵

C

Rather than grapple with the complexities of applying Tinker and Hazelwood in public elementary schools, the plaintiffs urge that the law is clearly established in light of the general First Amendment rule disfavoring viewpoint discrimination. Of course, it cannot be gainsaid that “[d]iscrimination against speech because of its message is presumed to be unconstitutional.”⁷⁶ But this rule is far too general to clearly establish the law in this case, as the Supreme Court recently reaffirmed in alKidd: “We have repeatedly told courts ... not to define clearly established law at a high level of generality.”⁷⁷

At argument, the plaintiffs contended that the “level-of-generality discussion is less important here” because the rule against viewpoint discrimination is absolute. But this is not so. No matter how “axiomatic”⁷⁸ the generalized rule against viewpoint discrimination may be, we cannot neglect that this case arises in the public schools, a special First Amendment context,⁷⁹ which admits of no categorical prohibition on viewpoint discrimination.

The plaintiffs cite a handful of cases that ostensibly establish such a prohibition. But none of these cases involve student speech — let alone elementary-student speech — at school, during the school day.⁸⁰

Not only is there no categorical ban on viewpoint discrimination in public schools, our sister circuits have divided over the question.⁸¹ Indeed, as we have previously recognized, “[a] split exists among the Circuits on the question of whether Hazel-wood requires viewpoint neutrality” in public schools.⁸² Some of the courts to have allowed viewpoint discrimination have done so precisely because the speech at issue was religious. For instance, in Curry ex rel. Curry v. Hensiner,83 the Sixth Circuit upheld a school’s restriction on a student seeking to distribute a candy-cane message, nearly identical to the one in this case, as part of an organized school activity. The court held that “[t]he school’s desire to avoid having its curricular event offend other children or their parents, and to avoid subjecting young children to an unsolicited religious promotional message that might conflict with what they are taught at home qualifies as a valid educational purpose.”⁸⁴

Another of these cases is practically on all fours with the Jonathan Morgan incident before us today. In Walz v. Egg Harbor Township Board of Education,⁸⁵ the Third Circuit upheld an elementary school’s restriction on religious gifts — including pencils inscribed “Jesus V the Little Children” and a version of the same candy-cane message at issue in this case— at seasonal classroom parties. Other students were allowed to distribute their generic seasonal gifts. The Third Circuit reasoned that the student’s attempts to distribute the religious pencils were not an attempt at “personal religious observance,” but rather an attempt to promote a specific message.⁸⁶ The court held that the school’s efforts to prevent “advocacy” in classroom activities — religious, political, or commercial — was a legitimate educational purpose, given elementary-school students’ impressionability.⁸⁷

D

Establishment Clause concerns add still another layer of complexity to our legal analysis in this case. Despite widespread judicial recognition of the law in this area as the “the thorniest of constitutional thickets,”⁸⁸ the plaintiffs insist that the defendants’ Establishment Clause argument is a “red herring” that “borders on frivolous.” They argue that school officials’ obligations under the Establishment Clause are perfectly clear: to be neutral toward religion at all times. But they neglect that the Supreme Court has explicitly left open “whether a State’s interest in avoiding an Establishment Clause violation” can ever justify viewpoint discrimination.⁸⁹

Further complicating the law in this area is that other courts have held that the Establishment Clause requires educators to prohibit the distribution of religious materials in public elementary schools.⁹⁰ For instance, the Fourth Circuit, in Peck v. Upshur County Board of Education, considered a school board’s neutral policy allowing for the distribution of Bibles in public schools during the school day. The board took great pains to avoid the appearance that it was endorsing religion. As the court described,

The table displays are set up and stocked entirely by private citizens who are not affiliated in any way with the schools, and the. tables bear signs informing students only that they should feel free to take the Bibles or other material offered. Pursuant to district court injunction, the tables also bear a disclaimer, renouncing any sponsorship or endorsement by the school. No one is allowed to enter classrooms to announce the availability of the religious or political material, or to stand at the tables to encourage or pressure students to take the material. No school announcement or assembly is allowed to mark the availability of the Bibles or any other religious or political material. School principals are charged with ensuring strict compliance with these guidelines.⁹¹

Despite these efforts to avoid endorsement, the Fourth Circuit held the district’s policy unconstitutional “to the extent that it allows the display of Bibles and other religious material in the elementary schools of the County.”⁹² The court cited concern that “children of these ages may be unable to fully recognize and appreciate the difference between government and private speech — a difference that lies at the heart of the neutrality principle — the County’s policy could more easily be (mis)perceived as endorsement rather than as neutrality.”⁹³

Other circuits have recognized the risk that elementary students may misperceive neutrality toward religious speech as endorsement. For instance, in Wale, the Third Circuit noted that “in an elementary school classroom, the line between school-endorsed speech and merely allowable speech is blurred;”⁹⁴ In a high-school classroom, by contrast, “students are mature enough and are likely to understand that a school does not endorse speech that it merely permits on a nondiscriminatory basis.”⁹⁵

The plaintiffs insist that these Establishment Clause concerns are unfounded in light of the Supreme Court’s decision in Good News Club v. Milford Central School.⁹⁶ At argument, they asserted that Peck “does not survive Good News Club” because the Supreme Court in Good News Club “rejected the idea that elementary students are different.” They are mistaken. Instead, in Good News Club, the Supreme Court reiterated previous precedents assigning “significance ... in the Establishment Clause context to the suggestion that elementary school children are more impressionable than adults,”⁹⁷ at least when the school can actually be said to be advancing religion. However, the Court held that cases recognizing the impressionability of the youngest children do not go so far as to “foreclose private religious conduct during nonschool hours merely because it takes place on school premises where elementary school children may be present.”⁹⁸ In other words, in Good News Club, the Court declined to consider the students’ impressionability in light of the facts at hand, where “individuals who [we]re not schoolteachers [we]re giving lessons after school to children permitted to attend only with parental consent.”⁹⁹ This is a far cry from “rejecting the idea that elementary students are different.”¹⁰⁰

E

The principals are entitled to immunity because the general state of the law in this area is abstruse, complicated, and subject to great debate among jurists. At the time of the incidents in question, neither a single “controlling authority” nor a “robust consensus of persuasive authority” had held that the First Amendment prohibits school principals from restricting the distribution of written religious materials in public elementary schools.¹⁰¹ Nor had a single federal court of appeals definitively held that Tinker-based speech rights inhere in public elementary schools, let alone defined the scope of those rights with a high degree of particularity. The generalized prohibition against viewpoint discrimination is far too abstract to clearly establish the law in this ease, and the circuits are divided over its application in public elementary schools. The speech rights asserted in this case cannot be said to be “clearly established” when balanced against competing Establishment Clause concerns that inhere in public elementary schools.

(1)

Factually analogous precedent failed to prohibit Principal Swanson’s conduct (restricting the distribution of religious materials at a classroom party), as did the general bodies of law discussed above. Her case is unique among our qualified-immunity cases because, in addition to no law prohibiting her conduct, one of our sister circuits had explicitly sanctioned almost identical conduct. Swanson had been advised of this precedent — the Third Circuit’s decision in Walz — before acting, as even the plaintiffs’ complaint acknowledges.

Walz could hardly be more damaging to the plaintiffs’ case against immunity, so they make a number of attempts to distinguish it. First, they argue that the gifts in Walz were not distributed between students, but rather through the parent-teacher organization (PTO). This is a plain misreading of the opinion, which indicates that Daniel Walz sought to distribute his gifts directly to his classmates.¹⁰² Sec ond, the plaintiffs argue that Walz was not a viewpoint-discrimination case. This argument also fails. It is true that the school policy in Walz prohibited students from distributing messages of a “commercial, political, or religious” nature. But the fact that the school in Walz discriminated against several viewpoints is a distinction without a difference. The plaintiffs’ entire viewpoint-discrimination theory is that it is always unconstitutional to permit secular or generic seasonal gifts but to prohibit religious ones. It does not save this theory to point out that the policy in Walz permitted secular or generic seasonal gifts but prohibited religious, political, and commercial ones.¹⁰³ Our analysis would be no different if PISD had restricted both religious and political seasonal expressions by restricting Jonathan’s “Legend of the Candy Cane” pens and another student’s “Stop the war this winter” pencils.

The plaintiffs’ third attempt to distinguish Walz is that Daniel Walz was allowed to distribute his candy-cane story in an alternative location: “in the school hallway after class or at recess.”¹⁰⁴ This fact both fails to distinguish Walz and proves far too much. First, Principal Swanson here repeatedly offered an alternative location at which Jonathan could distribute “The Legend of the Candy Cane.” Second, this attempt to distinguish Walz proves too much, because the Third Circuit held that the offering of an alternative forum for religious messages was “more than reasonable and perhaps even unnecessary” for First Amendment purposes.¹⁰⁵

(2)

Defendant Bomchill is also entitled to immunity. We begin our discussion of Principal Bomchill’s immunity with the after-school incident. As we discuss in the next Part, we ultimately conclude that Principal Bomchill violated Stephanie Versher’s First Amendment rights when she restricted her from distributing “Jesus” pencils outside of school hours to a small group of students who specifically requested them. We are sensitive to the outrage and concern the plaintiffs and various amici feel over this after-school incident, which involved the distribution of a small number of religious items among willing friends, outside of school hours. But our qualified-immunity inquiry does not ask what we think of a defendant’s conduct as a normative matter.¹⁰⁶ Rather, qualified immunity is a dispassionate inquiry that asks us only to identify the state of the law as a descriptive matter.

Bomchill is entitled to immunity for this after-school incident because no law gave fair notice that elementary educators may not restrict the distribution of written religious materials to elementary students on the school lawn, after school. As we dis cuss in the next Part, Stephanie’s after-school speech looks far more like the private speech contemplated in Tinker than the school-sponsored speech discussed in Hazelwood. But we cannot ignore that Tinkers applicability in elementary schools has never been clearly established, and has indeed been questioned by multiple federal courts of appeals.

Neither can we ignore the Fourth Circuit’s decision in Peck, which forbade the distribution of religious materials in elementary schools on Establishment Clause grounds. Peck shares many similarities with Stephanie’s after-school incident. For instance, like the group distributing Bibles in Peck, Stephanie distributed her “Jesus” pencils only to students who specifically requested them. And just as the Bible distributors in Peck were prohibited from “encouraging] or pressur[ing] students to take the material,”¹⁰⁷ Stephanie alleges that she only distributed her pencils to students who specifically sought to receive them. Despite strong evidence that the speech in question was not the school’s, the Fourth Circuit held that allowing distribution of religious items in public elementary schools violates the Establishment Clause in all instances. Principal Bomchill is entitled to immunity in light of this pronouncement.

Principal Bomchill is entitled to immunity for the two remaining incidents — the half-birthday incident and the passion-play-ticket incident — for largely the same reasons. The complaint omits important facts necessary to classify the speech in either incident, as we discuss in the next Part. But even despite important missing details, we are able to conclude that Bomchill is entitled to immunity for these incidents because Tinker1 s applicability in elementary schools has never been clearly established, and Establishment Clause concerns rendered the law in this area unclear.

V

At the 12(b)(6) stage, to hold that the defendant violated the law at step one of the qualified-immunity analysis means is simply to say that the plaintiff has stated a claim upon which relief may be granted.¹⁰⁸ Defendant Bomchill’s conduct in conjunction with the after-school incident, as pleaded in the complaint and in the light most favorable to the plaintiffs, violated Stephanie Versher’s First Amendment rights. The Court should decline for the time being to pass on the constitutionality of the remaining incidents.

A

Because we have granted immunity to the principals at step two of the qualified-immunity analysis, it is within our discretion to decline entirely to address the constitutionality of the defendants’ conduct. This flexibility was not ever thus. Indeed, until recently the Supreme Court required us in every case to address the underlying constitutional claim, so as to promote “the law’s elaboration from case to case.”¹⁰⁹ Then, in Pearson v. Callahan, the Court retreated from this “rigid order of battle,” granting lower courts discretion over the order of the analysis and making step one optional when immunity is required at step two.¹¹⁰ However, the Pearson Court cautioned that while “the Saucier protocol should not be regarded as mandatory in all cases, ... it is often beneficial.”¹¹¹

The Supreme Court in Pearson outlined a number of situations where federal courts might wish to skip step one of the qualified-immunity analysis. These include: (1) “cases in which the constitutional question is so factbound that the decision provides little guidance for future cases”; (2) “when it appears that the question will soon be decided by a higher court”; (3) “[a] constitutional decision resting on an uncertain interpretation of state law”; (4) “[w]hen qualified immunity is asserted at the pleading stage,” and “the precise factual basis for the plaintiffs claim or claims [is] hard to identify”; and (5) “circumstances in which the first step of the Saucier procedure may create a risk of bad decisionmaking.”¹¹²

Recent decisions suggest that the Supreme Court continues in its retreat from the old Saucier two-step analysis. In Camreta v. Greene, using stronger language than before, the Court clarified that lower courts “should address only the immunity question” in the circumstances outlined in Pearson.113 The Camreta Court further cautioned that lower courts should “think hard, and then think hard again” before unnecessarily deciding the merits of a constitutional issue, and thus risk “turning small cases into large ones.”¹¹⁴ Then, only days later, in Ashcroft v. ah-Kidd, the Court cautioned that we should “think carefully before expending ‘scarce judicial resources’ to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.’ ”¹¹⁵

We have “thought carefully” about whether to address the merits of constitutional issues before us today. We conclude that clarifying some of the law’s uncertainties would be useful to the district court’s conduct of the rest of this case — which includes official-capacity claims against the defendants and an as-applied challenge to the school’s speech policy. But we are also mindful that this appeal arises at the pleading phase. Deciding whether some of the incidents in question violated the plaintiffs’ rights “depend[s] on a kaleidoscope of facts not yet fully developed,”¹¹⁶ a situation described in Pearson as warranting avoidance of qualified immunity step one. Thus, we exercise our discretion to address the constitutionality of only one of the incidents in question.

B

As a preliminary matter, because it has been unclear, it should be clarified today that the student-speech rights announced in Tinker inhere in the elementary-school context. It is difficult to identify a constitutional justification for cabining the First Amendment protections announced in Tinker to older students. This view finds support in other areas of First Amendment law. For instance, the Supreme Court has long recognized elementary students’ freedom of conscience in the First Amendment context. Indeed, in West Virginia Board of Education v. Barnette, which involved elementary-aged plaintiffs, the Court recognized that the government may not compel particular speech from citizens, school children or otherwise.¹¹⁷ The plaintiffs in Barnette were elementary-school students. A recent Supreme Court decision also recognized the First Amendment rights of the youngest Americans — outside of the school environment— in invalidating a California ban on the sale of violent video games to minors.¹¹⁸

In affirming that Tinker-based speech rights apply to elementary students, we must be mindful of a long-established countervailing principle: in public schools, the “speech appropriate for eighteen-year-old high school students is not necessarily acceptable for seven-year-old grammar school students.”¹¹⁹ Indeed, “common sense” dictates that “a 7-year-old is not a 13-year-old[,] and neither is an adult.”¹²⁰ In other words, to extend Tinkers protections to public elementary schools is not necessarily to hold that the speech rights of elementary students are coextensive with those of older students. As the Third Circuit has recognized, the Tinker framework is a flexible, “case-by-case” approach that is capable of accommodating the concern “[t]hat elementary students require a greater degree of control, or a different kind of control.”¹²¹

Tinker protects private student expression where there is no “interference, actual or nascent, with the schools’ work or collision with the rights of other students to be secure and to be let alone.”¹²² Courts’ analysis of the “work of the schools” and the “rights of other students” can and may often look different in the elementary-school context. The Texas Elementary School Principals Association reminds us that the “work” of public elementary schools is in many ways broader than that of public high schools. High school students obviously already have a grasp on the most basic social and behavioral tasks, like “going to the restroom alone.” By contrast, these amici remind us, the youngest elementary students “cannot easily discern fact from fiction, nor can they easily process serious political, religious, and social issues on their own.” It follows, then, that some speech might be “materially and substantially disruptive” to the work of a public elementary school, but not to a public high school.

Further, an analysis of whether student speech infringes on the rights of others, including “the right to be let alone,” may also look different in the elementary-school context.¹²³ Elementary students are more susceptible to coercion and peer pressure, while older students are better equipped emotionally and intellectually to filter the potentially hurtful words of their classmates or walk away from speech that bothers or offends them. But there is no reason that the Tinker framework cannot accommodate this concern.

It is also true that the exceptions to Tinkers general rule, as announced in Hazelwood, Fraser, and Morse, might also look different in an elementary-school context. For example, Hazelwood applies to speech that “students ... might reasonably perceive to bear the imprimatur of the school.”¹²⁴ This “imprimatur of the school” inquiry may vary based on the age of the students involved, just as it does in the Establishment Clause context. Indeed, courts have recognized that, “in an elementary school classroom, the line between school-endorsed speech and merely allowable speech is blurred.”¹²⁵ Similarly, the threshold for what constitutes suggestive or lewd speech, as discussed in Fraser, might be lower in an elementary-school setting. The case before us today does not call on us to resolve these questions. They are noted here simply as a potential way of accommodating the well-established concern that the boundaries of appropriate speech may look markedly different in elementary schools than in middle or high schools.

C

Having determined that Tinker applies in elementary schools, we must also conclude that Principal Bomchill violated Stephanie Versher’s First Amendment rights in connection with the after-school incident. On the facts alleged in the complaint, this incident involves private speech governed by Tinker, not school-sponsored speech under Hazelwood. A reasonable person would not have believed that Stephanie Versher’s act of handing pencils to a select few recipients after school bore the imprimatur of the school. Indeed, the complaint alleges that Stephanie distributed her pencils only to a “small group of her classmates,” and, even then, she distributed them only to students who specifically asked her for one. The speech occurred after school hours, “on the lawn and sidewalk.” There is no indication that students were engaged in any sort of structured activity at the time of the distribution, nor that the students were under the supervision of teachers, either of which might lend an appearance of imprimatur. Nor is there any indication that Stephanie distributed her materials to a captive audience of students who were not free to reject her speech.

Given that Tinker governs this after-school incident, Principal Bomchill’s actions, as pleaded in the complaint, were unconstitutional. There is no indication that Stephanie’s distribution of a few pencils to her good friends interfered with the “work of the school” or infringed on the rights of other students. For instance, there is no indication that Stephanie interfered with the conduct of the carpool or bus lines, nor that the “Jesus loves me” message on her pencils caused a spillover disruption into other parts of the school. The defendants do not argue that Stephanie’s pencils were age-inappropriate, nor do they suggest that her distributing them infringed on the rights of other students. To the contrary, Stephanie was careful to allege that she distributed pencils only to students who wanted them.

Important to the conclusion that Principal Bomchill acted unconstitutionally is the fact that she allegedly restricted Stephanie’s “Jesus” pencils solely because of their message. From this pleaded fact, it can only be inferred that Stephanie would have been allowed to distribute her pencils if they had born a secular message. Tinker, when it applies, cannot countenance such a restriction on private student speech. In other words, a school cannot allow one student to distribute “Jesus” pencils on the school bus but forbid another from distributing “Mohammed” pencils; nor could it allow one student to distribute copies of the Democratic party platform but forbid his classmate from disseminating its Republican analog. That said, it must be clarified that we do not hold that public elementary schools must always allow students to disseminate written materials, so long as the distribution occurs outside of a “school-sponsored” activity. For example, this opinion does not reach a hypothetical rule forbidding students from sharing gifts or invitations with only a select few students, so as to avoid unfairness or hurt feelings. Rather, it holds simply that, where Tinker applies in public elementary schools, a school may not allow some speech on a given topic but not others, based solely on the content of its message.

D

We decline, for now, to pass on the constitutionality of the remaining incidents. The Supreme Court recently cautioned that, at the pleading stage, where “the precise factual basis for the plaintiffs claim or claims [is] hard to identify,” we “should address only the immunity question.”¹²⁶ We think the remaining three incidents in this case — the passion-play-ticket incident, the half-birthday party, and the winter-break party — fall squarely within this admonition.

The two remaining allegations against Principal Bomchill are that she restricted Stephanie Versher from distributing passion-play tickets while at school and restricted her from distributing “Jesus” pencils at her half-birthday party. Whether these actions violated Stephanie’s rights “depend[s] on a kaleidoscope of facts not yet fully developed.” Specifically, the complaint omits a number of facts that are essential to the determination of whether Tinker or Hazelwood governs. With respect to the passion-play tickets, we cannot determine whether the speech could reasonably have been understood to bear the school’s imprimatur because we do not know when, where, or how widely Stephanie distributed them; nor whether she distributed them during events conducted pursuant to official guidelines; nor whether she distributed them under the supervision of faculty; nor whether she “approached” other students to discuss the crucifixion while they were a captive audience.¹²⁷ Likewise, it is difficult to determine whether Stephanie’s half-birthday party was “school-sponsored” event under Hazelwood because we do not know whether the party occurred pursuant to specific guidelines; nor whether it was designed to impart specific knowledge or skills; nor how many students attended; nor whether teachers were present and supervising. Given the complaint’s reticence as to the specific details of these events, we decline to “resolve the difficult and novel questions of constitutional ... interpretation” they present.¹²⁸

The remaining allegation is that Principal Swanson restricted Jonathan Morgan from distributing “The Legend of the Candy Cane” at a 2003 winter-break party. We decline, for the time being, to pass on the issue, which depends on a number of undeveloped facts. As a preliminary matter, we are able to conclude fairly easily that the deferential Hazelwood standard governs this incident. As the district’s attorneys advised the Morgans, the winter-break parties have a “clearly defined curricular purpose to teach social skills and respect for others in a festive setting,” and the parties are “highly structured, supervised, and regulated.” Indeed, the parties are conducted in accordance with specific written guidelines that stress uniformity across the grade level. Thus, we have little trouble concluding that the winter-break parties were “school-sponsored” activities and that Hazelwood is the proper governing standard.

Having concluded that Hazelwood applies, our next task is to consider whether the school’s restriction of Jonathan’s speech was “reasonably related to legitimate pedagogical concerns.” Resolution of this question would benefit greatly from a more developed factual record, and we need not decide it now; this issue will arise again when the district court addresses the plaintiffs’ claims against the school district. Consideration of this question would benefit greatly from the testimony of school officials and argument from the district. If they wish, the plaintiffs at that time may present testimony from their own experts, argue that the school’s pedagogical concerns were not “legitimate,” or to argue that the restrictions involved were not “reasonably related” to those goals. Given that Swanson is entitled to immunity, we think it best to leave this inquiry, which involves questions of both fact and law, for summary judgment.

Conclusion

The defendants in this case are entitled to qualified immunity because existing precedent failed to place the constitutionality of their conduct “beyond debate.” Like other educators to have contended with religious speech in public schools, Swanson and Bomchill had to make on-the-ground decisions balancing constitutional imperatives from three areas of First Amendment jurisprudence: the Supreme Court’s school-speech precedents, the general prohibition on viewpoint discrimination, and the murky waters of the Establishment Clause. The law tasked them with maintaining the most delicate of constitutional balances: between students’ free-speech rights and the Establishment Clause im perative to avoid endorsing religion. But it failed to provide any real, specific guidance on how to do so. Moreover, almost all of the federal courts of appeals to have to considered speech restrictions in this area have found no constitutional violation in the first instance, including one case with facts nearly identical to those now before us. And no federal court of appeals has ever denied qualified immunity to an educator in this area. We decline the plaintiffs’ request to become the first.

In short, for the reasons stated in Part IV of this opinion, we REVERSE the judgment of the district court and REMAND with an instruction to dismiss the plaintiffs’ claims as to Swanson and Bomchill in their individual capacities.

Footnotes

1

. Parts I through IV of this opinion, granting immunity to the defendants because the law was not clearly established, are joined by Judges King, Davis, and Stewart. Judge Dennis also joins these Parts in full, except for one point of law in Part IV(A), as discussed in his special concurrence. Judge Owen joins only Parts II through IV.

Part V of this opinion addresses the constitutionality of the principals' conduct, as alleged in the complaint. Parts V(A) through (C) conclude that one of the incidents involving Principal Bomchill was unconstitutional, while Part V(D) concludes that the Court should not reach the underlying constitutional question as to the remaining incidents. Judges King, Davis, Garza, Stewart, and Dennis would not address the constitutionality of the conduct of either principal and join only in Part V(D).

2

. The case now before us represents a relatively small part of the plaintiffs' larger suit. The complaint mounts facial and as-applied challenges to several versions of PISD’s student-speech policy, along with claims against six school officials in their official and individual capacities. These various claims are proceeding in pieces. We have already considered and rejected a facial challenge to one version of PISD's student-speech policy. See Morgan v. Plano Indep. Sch. Dist. (Morgan I), 589 F.3d 740 (5th Cir.2009). The as-applied challenge to the school policy and the official-capacity claims will proceed on their own timetable. In other words, this is not our first word on the issues in this case, and it will likely not be our last.

3

. A third student, Michaela Wade, also asserts claims against Swanson. However, the complaint plainly indicates that "[t]he Wade Plaintiffs do not seek damages”; their allegations are offered only in support of the plaintiffs’ claims for equitable relief. This is an appeal from a denial of qualified-immunity, which is an immunity from claims for damages only. See, e.g., Williams v. Ballard, 466 F.3d 330, 334 (5th Cir.2006) (citing Orellana v. Kyle, 65 F.3d 29, 33 (5th Cir. 1995)). Like the district court below, we do not consider the Wade incident in determining Swanson's entitlement to immunity.

4

. Morgan v. Swanson, 627 F.3d 170, vacated and reh'g granted, 628 F.3d 705 (5th Cir.2010) (en banc).

5

. Morgan, 628 F.3d at 705.

6

. The plaintiffs attached to their complaint the guidelines for the winter-break parties, so we may consider them at this stage. We have previously held that, in considering a Rule 12(b)(6) motion, we look at both “the facts stated in the complaint and the documents either attached to or incorporated in the complaint." Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996).

7

. Jonathan Morgan is not the first student to file a federal lawsuit over an attempt to distribute some version of "The Legend of the Candy Cane.” See, e.g., Curry ex rel. Curry v. Hensiner, 513 F.3d 570 (6th Cir.2008); Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271 (3d Cir.2003); Westfield High Sch. L.I.F.E. Club v. City of Westfield, 249 F.Supp.2d 98 (D.Mass.2003).

8

. At the meeting, they aired a laundry-list of complaints about PISD’s treatment of student religious speech. They were unhappy, for instance, that a teacher had instructed their son to write "Happy Holidays” (rather than “Merry Christmas”) on a seasonal card for a local senior citizen, prepared as part of a school activity. The Morgans were also offended by Thomas Elementary’s characterization of the end-of-semester parties as "winter-break” parties because it is their belief that “Christians do not celebrate 'winter break’ parties.” However, the Morgans do not seek damages arising from these incidents, which the complaint does not attribute to Swanson.

9

. This letter was attached to the plaintiff's original complaint. The plaintiffs subsequently amended their complaint, failing then to attach the letter. This appears to have been an act of inadvertence. Like the original complaint, second amended complaint— the live complaint in this action — incorporates and discusses the letter, referring to it as "Exhibit 7.” However, Exhibit 7 is missing from the live complaint, which skips from Exhibit 6 to Exhibit 8. We can only assume that this was a good-faith accidental omission on the part of the plaintiffs, who have extensively characterized the letter in their complaint. Even if it were not, it would be proper for us to consider the letter because the complaint incorporates it by reference. See Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir.2011) (noting that “a court ruling on a 12(b)(6) motion may rely on the complaint," along with “ 'documents incorporated into the complaint by reference' ” (quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.2008))).

10

. Specifically, the district’s letter said:

The holiday party at issue is a classroom activity that has a clearly defined curricular purpose to teach social skills and respect for others in a festive setting. This activity is highly structured, supervised, and regulated. Thus, it is well within the school’s ambit of authority to prevent the distribution of candy canes or other media by Jonathan at the holiday party. Moreover, the school's offer to allow Jonathan to hand out his materials after class or at the designated area for distribution is more than a reasonable accommodation, and eliminates any First Amendment concerns. As you well know, the Third Circuit has recently re-affirmed, under almost identical facts to those present here, that a school's restrictions on an elementary school student's distribution of candy canes and pencils containing a religious message during a classroom holiday party did not violate the First Amendment.

11

. 342 F.3d 271 (3d Cir.2003).

12

. We note that the complaint fails to make clear the exact nature of Swanson’s involvement in this speech restriction. The complaint stops short of alleging that Principal Swanson personally allowed the other students to distribute their nonreligious gifts, even after her viewpoint-neutral loudspeaker announcement. Thus, it is difficult to discern the Morgans’ precise theory of Swanson’s liability from the face of the complaint: whether they mean to allege that she personally discriminated against Jonathan’s viewpoint, or whether they allege some theory of supervisory liability. We need not resolve this problem with the plaintiffs’ pleading, though, because we hold that Swanson would be entitled to immunity even if she had directly and personally restricted only the religious gifts.

13

. Merriam-Webster’s Dictionary, available at www.m-w.com.

14

. Behrens v. Pelletier, 516 U.S. 299, 311, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).

15

. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251 (5th Cir.2005) (emphasis omitted) (citing Behrens, 516 U.S. at 307, 116 S.Ct. 834).

16

. Id. at 252 (citing Wilkerson v. Stalder, 329 F.3d 431, 434 (5th Cir.2003)).

17

. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir.2009); see also Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir.2005) ("The complaint must be liberally construed, with all reasonable inferences drawn in the light most favorable to the plaintiff.” (citing Sloan v. Sharp, 157 F.3d 980, 982 (5th Cir.1998))).

18

. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

19

. See id. (noting that qualified immunity’s shield applies “so long as an official's actions could reasonably have been thought consistent with the rights they are alleged to have violated”).

20

. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).

21

. Ashcroft v. al-Kidd,-U.S.-, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (emphasis added).

22

. Id. at 2080 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

23

. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

24

. Pounds v. Katy Indep. Sch. Dist., 730 F.Supp.2d 636, 638 (S.D.Tex.2010); see also Nurre v. Whitehead, 580 F.3d 1087, 1090 (9th Cir.2009) ("There exists a delicate balance between protecting a student’s right to speak freely and necessary actions taken by school administrators to avoid collision with the Establishment Clause.”).

25

. al-Kidd, 131 S.Ct. at 2083 (emphasis added) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).

26

. Id. at 2084 (citing Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). In a situation where no "directly controlling authority” prohibits the defendants' conduct, we look to the law of other jurisdictions “in assessing whether a reasonable [official] would have known ... that his conduct was unlawful.” McClendon v. City of Columbia, 305 F.3d 314, 329 (5th Cir.2002) (en banc) (discussing Wilson, 526 U.S. at 603, 119 S.Ct. 1692).

27

. Wilson, 526 U.S. at 617-18, 119 S.Ct. 1692.

28

. See id. (holding that qualified immunity was appropriate because "[bjetween the time of the events of this case and today’s decision, a split among the Federal Circuits in fact developed”).

29

. Id. at 618, 119 S.Ct. 1692.

30

. Id. (citations omitted); see also Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (holding that the clearly-established inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition”).

31

. See Anderson, 483 U.S. at 639, 107 S.Ct. 3034.

32

. al-Kidd, 131 S.Ct. at 2083.

33

. Id. (emphasis added).

34

. See Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (“[T]he salient question that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of Hope was unconstitutional.”).

35

. McClendon v. City of Columbia, 305 F.3d 314, 331 (5th Cir.2002) (en banc) (discussing Wilson, 526 U.S. at 614-15, 119 S.Ct. 1692, and Anderson, 483 U.S. at 640, 107 S.Ct. 3034).

36

. Hope, 536 U.S. at 741, 122 S.Ct. 2508 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034) (emphasis added).

37

. Id. at 742, 122 S.Ct. 2508 (citing Gates v. Collier, 501 F.2d 1291 (5th Cir.1974)).

38

. See United States v. Lanier, 520 U.S. 259, 268-69, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034) (rejecting the Sixth Circuit’s stringent specificity requirement for "fair warning” purposes in a case involving a state-court judge who sexually assaulted several women in his chambers). The Supreme Court has also favorably cited an oft-quoted Seventh Circuit opinion reiterating the importance of providing for a remedy in the most obvious of cases:

The easiest cases don’t even arise. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances.

K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir.1990) (cited in Safford Unified Sch. Dist. No. 1 v. Redding,-U.S.-, 129 S.Ct. 2633, 2643, 174 L.Ed.2d 354 (2009)).

39

. See al-Kidd v. Ashcroft, 580 F.3d 949, 970 (9th Cir.2009), rev’d, -U.S.-, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Hope, 536 U.S. at 739, 122 S.Ct. 2508).

40

. Brosseau, 543 U.S. at 201, 125 S.Ct. 596 (emphasis added). A leading treatise on federal jurisdiction has noted an "obvious tension” between Hope, which "declar[ed] that there need not be a case on point to overcome qualified immunity,” and Brosseau, which found "qualified immunity based on the lack of a case on point.” Erwin Chemerinsky, Federal Jurisdiction § 8.6, at 555 (5th ed. 2007).

41

. 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).

42

. E.g., Rebecca Aviel, Compulsory Education and Substantive Due Process: Asserting Student Rights to a Safe and Healthy School Facility, 10 Lewis & Clark L.Rev. 201, 229 (2006); Kristi L. Bowman, Public School Students’ Religious Speech and Viewpoint Discrimination, 110 W. Va. L.Rev. 187, 201 (2007) (citation omitted).

43

. Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 507 (5th Cir.2009). Indeed, this contraction of Tinker led Justice Thomas to lament that the Court has failed to adequately explain “when [Tinker] operates and when it does not”:

we continue to distance ourselves from Tinker, but we neither overrule it nor offer an explanation of when it operates and when it does not. I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t — a standard continuously developed through litigation against local schools and their administrators.

Morse v. Frederick, 551 U.S. 393, 418 [127 S.Ct. 2618, 168 L.Ed.2d 290] (2007) (Thomas, J., concurring); see also Erwin Chemerinsky, Teaching that Speech Matters: A Framework for Analyzing Speech Issues in Schools, U.C. Davis L. Rev. 825, 831 (2009) (“Tinker has never been expressly overruled, but it has been tremendously undermined.”).

44

. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986).

45

. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988).

46

. Morse v. Frederick, 551 U.S. 393, 422, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (Alito, J., concurring). We have identified Justice Ali-to’s concurrence as the controlling opinion in Morse. Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 768 (5th Cir.2007).

This Court also applies a different standard to student-speech restrictions that are content-neutral. See Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 442-43 (2001) (applying the O’Brien standard, which is "virtually the same” as the traditional time, place, and manner analysis).

47

. For instance, outside the school environment, the Court has recently invalidated a California state ban on the sale of violent video games to minors. See Brown v. Entm’t Merch. Ass’n, -U.S. -, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011). This is just one example of a recent spate of cases articulating robust First Amendment protections. See, e.g., Snyder v. Phelps,-U.S.-, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (shielding hateful speech at military funerals); United States v. Stevens,-U.S.-, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (protecting depictions of animal cruelty); Citizens United v. Fed. Election Comm’n, - U.S. -, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (holding that the government may not restrict political speech simply because the speaker is a corporation).

48

. Fraser, 478 U.S. at 682, 106 S.Ct. 3159 (citing New Jersey v. T.L.O., 469 U.S. 325, 340-42, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)).

49

. Compare, e.g., Morse, 551 U.S. at 401, 127 S.Ct. 2618 (upholding a school’s restriction on a student's “BONG HiTS 4 JESUS” poster at a school event and noting that a student "cannot stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school”), with Cohen v. California, 403 U.S. 15, 16, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (holding that defendant had a First Amendment right to wear a jacket reading "Fuck the Draft” in a municipal courthouse although there were "women and children present”).

50

. Morse, 551 U.S. at 394, 127 S.Ct. 2618 (quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733).

51

. See Morgan I, 589 F.3d at 745 & n. 15 (identifying various categories of student speech).

52

. The plaintiffs also argue that we need not resolve the difficult issue of which precedent to apply because they carefully pleaded that the speech in question was “non-curricular” and thus not within Hazelwood’s reach. But whether speech is "school-sponsored” or "curricular” under Hazelwood is a question of law for the Court, not a fact entitled to the presumption of truth in a plaintiff's pleading. See Hazelwood, 484 U.S. at 268, 108 S.Ct. 562 (treating "school-sponsored” and "curricular” as questions for the court and then answering those questions based on the specific facts before it); Campbell v. St. Tammany Parish Sch. Bd., 64 F.3d 184, 189-90 (5th Cir. 1995) (same); Peck v. Baldwinsville Cent., 426 F.3d 617 (same); Walz, 342 F.3d at 279 (same); Bannon, 387 F.3d 1208 (same); Fleming, 298 F.3d at 931 (same); see also Iqbal, 129 S.Ct. at 1949 (detailing a number of categories of statements in a plaintiff's complaint that are not entitled to the presumption of truth).

53

. Hazelwood, 484 U.S. at 270-71, 108 S.Ct. 562.

54

. Tinker, 393 U.S. at 509, 89 S.Ct. 733 (citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).

55

. Id.

56

. Hazelwood, 484 U.S. at 271, 108 S.Ct. 562 (emphasis added).

57

. Id.

58

. Id.

59

. Id. at 273, 108 S.Ct. 562.

60

. Tinker, 393 U.S. at 508, 89 S.Ct. 733.

61

. Merriam-Webster's Dictionary, available at www.m-w.com.

62

. Fleming v. Jefferson Cnty. Sch. Dist., 298 F.3d 918, 925 (10th Cir.2002) ("Expressive activities that do not bear the imprimatur of the school could include a variety of activities conducted by outside groups that take place on school facilities after-school, such as club meetings.” (citing Good News Club v. Milford Cent. Sch., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001))).

63

. Id. (noting that imprimatur concerns may be heightened where students are a "captive audience” (citing DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 968 (9th Cir.1999))).

64

. Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 279 (3d Cir.2003) (holding that school holiday parties were curricular activities because teachers planned the parties and the parties were supervised and regulated by school); Bannon v. Sch. Dist. of Palm Beach Cnty., 387 F.3d 1208, 1214-15 (11th Cir.2004) (holding that murals made by students were curricular in part because faculty members supervised the project); Fleming, 298 F.3d at 930-31 (holding that tiles created by individual students as part of a school beautification project bore the school’s imprimatur because the school was "significantly involved in the creation, funding, supervision, and screening process of the tile project”); Peck v. Baldwins-ville Cent. Sch. Dist., 426 F.3d 617, 628-29 (2d Cir.2005) (concluding that a student’s poster was school-sponsored expression because the poster was prepared in response to a school assignment and the school set parameters for posters in advance).

65

. Bannon, 387 F.3d at 1214-15 (applying Hazelwood where project was designed to impart knowledge — specifically the creation and appreciation of artwork).

66

. E.g., id. (applying Hazelwood to a "school beautification project” for which students did not earn grades or credit, and which occurred on Saturdays and required a separate participation fee); Fleming, 298 F.3d at 921, 928 (applying Hazelwood to a project at Columbine High School in which students were given the opportunity to create artwork on tiles to be displayed in the school, even though the project was not for students alone and was open to the general community).

67

. Bannon, 387 F.3d at 1214-15.

68

. Walz, 342 F.3d at 277.

69

. Muller ex rel. Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1539 (7th Cir. 1996).

70

. Even counsel for one of the plaintiffs' amici curiae has recognized as much. See Jay Alan Sekulow et al., Proposed Guidelines for Student Religious Speech and Observance in Public Schools, 46 Mercer L.Rev. 1017, 1072 (1995) ("Tzn/ceritself dealt with the speech rights of high school and junior high school students. The proposed guidelines [from this article] extend the Tinker standard to elementary schools.”); see also Ann Hassenpflug, The Limits of Freedom of Speech for Students in Grades PK-8, 198 Educ. L. Rep. 383, 383 (2005) ("In Tinker[,] the Court .... did not address ... any type of elementary student speech.”); Jon Perrelle, Note: An Opportunity for Reform: Tennessee Secondary School Athletic Association v. Brentwood Academy and NCAA Recruiting, 74 Brook. L.Rev. 1213, 1231 n. 140 (2009) ("[N]o decisions of the Courts of Appeals apply Tm/cer-based speech rights to the elementary school setting ....").

71

. Tinker, 393 U.S. at 504, 89 S.Ct. 733.

72

. Both the Third and Seventh Circuits have held that, if elementary students enjoy Tinker-based speech rights, those rights are far more limited than the rights of older students. The Third Circuit has gone so far as to note that "at a certain point, a school child is so young that it might reasonably be presumed the First Amendment does not protect the kind of speech at issue here.” Walker-Serrano ex rel. Walker v. Leonard, 325 F.3d 412, 418 (3d Cir.2003).

Similarly, the Seventh Circuit has held that, to the extent elementary students enjoy First Amendment rights at school, those rights are tightly circumscribed in light of their young age. See, e.g., Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 738 (7th Cir. 1994), superseded by statute on an unrelated point as recognized in Lawrence v. Kenosha Cnty., 391 (7th Cir.2004) (noting the "dearth of caselaw in the lower federal courts” discussing "the applicability of the First Amendment to grammar school students,” and holding that "age is a relevant factor in assessing the extent of a student’s free speech rights in school”). At least one member of the Seventh Circuit has expressly doubted whether Tinker applies to elementary students at all. Muller, 98 F.3d at 1538-39 (opinion of Manion, J.) (citation omitted) (”[I]t is unlikely that Tinker and its progeny apply to public elementary (or preschool) students.”). Several subsequent panels have favorably cited Judge Manion’s opinion and expressed similar doubts as to the scope and applicability of the First Amendment in public elementary schools. See Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874, 876 (7th Cir.2011) (citing Muller, 98 F.3d at 1538— 39, for the proposition that "the younger the children, the more latitude the school authorities have in limiting expression”); Brandt v. Bd. of Educ. of City of Chicago, 480 F.3d 460, 466 (7th Cir.2007) (doubting the proposition that the speech clause extends “at least as far down the maturity ladder as a 10-year-old” because it stands in tension with Muller, 98 F.3d at 1538-39, and Baxter, 26 F.3d at 736-38); Nuxoll ex red. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 673 (7th Cir.2008) (relying on Muller, 98 F.3d at 1538— 39, for the proposition that when a school regulates the speech of children that are "very young ... the school has a pretty free hand” (citing also Baxter, 26 F.3d at 738 (7th Cir. 1994); Blau v. Fort Thomas Public Sch. Dist., 401 F.3d 381, 389 (6th Cir.2005); Walker-Serrano v. Leonard, 325 F.3d 412, 416-17 (3d Cir.2003); Lovell by Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 373 (9th Cir. 1996))).

73

. Baxter, 26 F.3d at 738 (emphasis omitted); see also Zamecnik, 636 F.3d at 876 (”[T]he younger the children, the more latitude the school authorities have in limiting expression.”); Nuxoll, 523 F.3d at 673 (noting that when a school regulates the speech of children that are "very young ... the school has a pretty free hand” (citations omitted)).

74

. Hazelwood, 484 U.S. at 272, 108 S.Ct. 562.

75

. Muller, 98 F.3d at 1538; see also Zamecnik, 636 F.3d at 876 (”[T]he contribution that kids can make to the marketplace of ideas and opinions is modest .... ” (discussing Nuxoll, 523 F.3d at 676-80)).

76

. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (citing Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-43, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)); see also Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 350 (5th Cir.2001) (holding that the Court did not need to determine the nature of a forum for adult speech outside of the school day, be cause of the "well-settled” prohibition on viewpoint discrimination "in any forum”).

77

. al-Kidd, 131 S.Ct. at 2084 (citations omitted).

78

. Rosenberger, 515 U.S. at 828, 115 S.Ct. 2510 (citing Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)).

79

. Morse, 551 U.S. at 394, 127 S.Ct. 2618 (reiterating that student-speech claims must be considered " 'in light of the special characteristics of the school environment’ ” (quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733)).

80

. See Good News Club, 533 U.S. at 113, 121 S.Ct. 2093 (invalidating school’s restriction on an outside religious group’s use of a school's multipurpose facility after school hours); Rosenberger, 515 U.S. at 830, 115 S.Ct. 2510 (holding that university could not withhold student activities funds from an extracurricular student group simply because of the religious nature of its speech); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 393, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (invalidating school district's restriction on a religious group’s use of school facilities during times they were not being used for school purposes); Bd. of Educ. of Westside Cmty. Sch. (Dist.66) v. Mergens, 496 U.S. 226, 250-51, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (same); Widmar v. Vincent, 454 U.S. 263, 273-75, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (holding that a university that "opened its facilities for use by student groups” could not then discriminate against a particular group because of its religious purpose).

81

. The plaintiffs have argued that the defendants waived the argument that the law was not clearly established in light of this circuit split. We reject this argument because the plaintiffs briefed cases arising from this Hazelwood-baseá circuit split at every phase of this proceeding: at the district court, before the panel, and now before the en banc Court. Even if they had not, the Supreme Court has held that "When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991).

82

. Chiras v. Miller, 432 F.3d 606, 615 (5th Cir.2005); see also 2 Rodney A. Smolla, Smolla 6 Nimmer on Freedom of Speech, § 7:14.50 (Westlaw current through March 2011) ("There is a division among courts as to whether the ... deferential First Amendment standard articulated in Hazelwood is nonetheless trumped and displaced by the First Amendment norm heavily disfavoring viewpoint discrimination.”). Compare, e.g., Fleming, 298 F.3d at 928 ("Hazelwood does not require educators’ restrictions on school-sponsored speech to be viewpoint neutral.”), and Ward v. Hickey, 996 F.2d 448, 454 (1st Cir.1993) ("[T]he Court in [Hazelwood] did not require that school regulation of school-sponsored speech to be viewpoint neutral.”), with Searcey v. Harris, 888 F.2d 1314, 1319 n. 7 (11th Cir.1989) (“[Tjhere is no indication that the [Hazelwood] Court intended to drastically rewrite First Amendment law to allow a school official to discriminate based on a speaker's views.”).

83

. 513 F.3d 570 (6th Cir.2008).

84

. Id. at 579 (citing Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987)).

85

. 342 F.3d 271 (3d Cir.2003).

86

. Id. at 280.

87

. Id. at 277.

88

. Peck v. Baldwinsville Cent., 426 F.3d at 620.

89

. Good News Club, 533 U.S. at 113, 121 S.Ct. 2093 (citing Lamb's Chapel, 508 U.S. at 394-95, 113 S.Ct. 2141).

90

. Peck v. Upshur Cnty. Bd. of Educ., 155 F.3d 274, 288 n. * (4th Cir.1998).

91

. Id. at 275-76.

92

. Id. at 288 n. * (emphasis added).

93

. Id.

94

. Walz, 342 F.3d at 277 (citing Edwards, 482 U.S. 578, 107 S.Ct. 2573).

95

. Id.

96

. 533 U.S. 98, 117-18, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001).

97

. Good News Club, 533 U.S. at 115, 121 S.Ct. 2093 (citing Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985)).

98

.Id.

99

. Id.

100

. Neither did the Supreme Court "reject the idea that elementary students are different” in Mergens. The plaintiffs and their amici have repeatedly quoted Justice O'Connor's statement, for the plurality, that "[t]he proposition that schools do not endorse everything they fail to censor is not complicated." Mergens, 496 U.S. at 250-51, 110 S.Ct. 2356 (plurality). However, in quoting this language out of context, they ignore that the plurality opinion in Mergens was plainly limited to high-school students. Indeed, the Supreme Court in Mergens held only "that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatoiy basis.” Id. at 250, 110 S.Ct. 2356.

101

. The plaintiffs highlight a Seventh Circuit case invalidating a restriction on a middle-school student’s distribution of written religious materials. See Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1297 (7th Cir.1993) (invalidating a district policy forbidding distribution of religious material "[a]t the elementary and junior high school”). However, even if this case established a right to distribute such materials in elementary schools, this is far from the "robust consensus of persuasive authority” needed to clearly establish the law.

102

. See Walz, 342 F.3d at 273 ("At this particular party, Daniel brought his gifts directly to class where he distributed [the religious] pencils to his classmates." (emphasis added)); id. (noting that at the second party, "Daniel sought to distribute candy canes to his classmates.” (emphasis added)).

103

. We take no position on the substantive correctness of the Third Circuit’s holding in Walz, that it is a constitutionally legitimate goal to prevent "advocacy” in the elementary-school environment. We highlight Walz instead as a precedent on which Swanson was entitled to rely, for qualified-immunity purposes.

104

. Id. at 280.

105

. Id. (emphasis added) (citation omitted).

106

.Further, we think it fitting to withhold some judgment of Bomchill's conduct until a developed record reveals more about the circumstances. Principals like Bomchill often have to make on-the-spot constitutional determinations in the face of litigious parents already determined to sue. Amici educators remind us that parents across the nation have thusly sought to engineer "gotcha” moments for use as fodder for litigation and media campaigns. Only a more developed fact record will reveal if that was the case here.

107

. Peck, 155 F.3d at 275-76.

108

. See Pearson, 129 S.Ct. at 815-16 (describing step one of the qualified-immunity procedure as deciding "whether the facts that a plaintiff has alleged [under Rule 12(b)(6)] or shown [under Rule 50 or 56] make out a violation of a constitutional right”). Throughout this appeal, the defendants have vigorously contested the plaintiffs' version of the facts. The district court will likely confront these same issues again when it addresses the plaintiffs’ claims against PISD. We caution the district court that our ruling today does not preclude a different result on summary judgment or at trial, after the parties have had an opportunity to develop the record through discovery.

109

. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

110

. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 817-18, 172 L.Ed.2d 565 (2009).

111

. Id. at 818.

112

. Id. at 819-820.

113

. -U.S.-, 131 S.Ct. 2020, 2032, 179 L.Ed.2d 1118 (2011) (emphasis added).

114

. Id.

115

. al-Kidd, 131 S.Ct. at 2080 (quoting Pearson, 555 U.S. at 236-37, 129 S.Ct. 808).

116

. Pearson, 129 S.Ct. at 819 (citing Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 69-70 (1st Cir.2002)).

117

. 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). The plaintiffs throughout this case argued that Barnette itself established the affirmative speech rights of public-school students, but the Supreme Court itself has not subsequently construed Barnette as such. See, e.g., Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 61, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ("Some of this Court's leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.” (citing Barnette, 319 U.S. at 642, 63 S.Ct. 1178); Johanns v. Livestock Marketing Ass'n, 544 U.S. 550, 557, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005) ("We first invalidated an outright compulsion of speech in West Virginia Bd. of Ed. v. Barnette.”)).

118

. Brown, 131 S.Ct. at 2741.

119

. Walker-Serrano, 325 F.3d at 416-17.

120

. J.D.B. v. North Carolina, - U.S. -, 131 S.Ct. 2394, 2407, 180 L.Ed.2d 310 (2011).

121

. Walker-Serrano, 325 F.3d at 417.

122

. 393 U.S. at 508, 89 S.Ct. 733.

123

.As the Seventh Circuit has recognized,

[i]n a public forum, the Christian can tell the Jew he is going to hell, or the Jew can tell the Christian he is not one of God's chosen, no matter how that may hurt. But it makes no sense to say that the overly zealous Christian or Jewish child in an elementary school can say the same thing to his classmate, no matter the impact. Racist and other hateful views can be expressed in a public forum. But an elementary school under its custodial responsibilities may restrict such speech that could crush a child's sense of self-worth.

Muller, 98 F.3d at 1539-40.

124

. 484 U.S. at 271, 108 S.Ct. 562.

125

. Walz, 342 F.3d at 277 (citing Edwards, 482 U.S. 578, 107 S.Ct. 2573).

126

. Camreta, 131 S.Ct. at 2032.

127

. These are the factors courts consider when determining whether to apply Hazel-wood. See supra nn. 56-60 and accompanying text. The Vershers attempt to plead away Hazelwood by alleging that Stephanie distributed her tickets only "during non-curriculum times,” but this conclusory allegation is not entitled to the presumption of truth. See supra n. 47.

128

. al-Kidd, 131 S.Ct. at 2080 (quoting Pearson, 555 U.S. at 236-37, 129 S.Ct. 808).

1

. It must be emphasized that Judge Benavides’s opinion thoroughly describes the case law creating uncertainty that supports the principals' immunity, but this is not an endorsement of any of those cases. In particular, I cannot understand the contention that viewpoint discrimination may be uniquely permissible in public schools against student religious speech, nor are expressed Establishment Clause concerns even plausible here. Citing Hazel-wood to justify the censorship of religious candy canes at winter break parties is plainly hostile not only to the students' religious beliefs but to the Judeo-Christian tradition that is the only reason we ever had winter break parties to begin with. I disagree with other courts that have expanded these theories without any basis.