Treating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. No member of the panel or judge in regular active service having requested that the court be poled on rehearing en banc (Federal Rule of Appellate Procedure 35 and Fifth Circuit Rule 35), the petition for rehearing en banc is DENIED.
The opinion issued October 25, 2019, is VACATED, and the following opinion is substituted, the only change being to add language to footnote 5:
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JERRY E. SMITH, Circuit Judge:
Kingdom Builders Community Development Corporation ("Kingdom Builders") and its CEO, Aleashia Clarkston, sued John White, the Superintendent of the Louisiana Department of Education ("LDOE"), alleging that White caused the denial of Kingdom Builders's charter school application in retaliation for Clarkston's expressing her views on disciplinary practices—including corporal punishment—on the nationally televised show
In June 2015, Kingdom Builders submitted a charter school application to the Lafayette Parish School Board, which the board denied. Plaintiffs appealed to the Louisiana Board of Elementary and Secondary Education ("BESE").
Following the conflicting reports, the BESE deferred ruling on the appeal and directed White to hire a third party to review his concerns with Clarkston's application. White contracted with Transcendent Legal to conduct that review. Transcendent Legal's report focused on "concerns specifically pertain[ing] to whether or not the proposed school leader [(Clarkston)] possesse[d] the professional judgment necessary to open and lead a high-performing charter school." Among those concerns was Clarkston's appearance on the television show America's Supernanny, which "caused the [LDOE] to question her professional judgment in choosing to air her family's disciplinary practices," including the use of corporal punishment, "on national television while representing herself as an educator."
Applying six norms used by the National Policy Board for Educational Administration,
In March 2016, after reviewing the evaluations of the School Board, SchoolWorks,
After hearing from the LDOE, the BESE denied plaintiffs' application. Both sides now agree that the BESE was the ultimate decisionmaker.
Plaintiffs brought claims for retaliation, alleging violations of the First and Fourteenth Amendments and article I, section 7 of the Louisiana Constitution.
White moved for summary judgment, asserting, inter alia, the defense of qualified immunity ("QI"). The district court granted the motion and dismissed plaintiffs' claims with prejudice, finding that they had failed to state a valid retaliation claim.
We affirm on a basis different from the one relied on by the district court. White is entitled to QI because, at the time of his alleged violation, it was not clearly established that First Amendment liability could attach to a public official who did not possess final decisionmaking authority. The district court did not reach the QI inquiry, but this court may affirm for any reason supported by the record, even if not relied on by the district court. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009).
Government officials "are entitled to [QI] under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time." District of Columbia v. Wesby, ___ U.S. ___, 138 S.Ct. 577, 589, 199 L.Ed.2d 453 (2018) (internal quotation marks omitted). Courts are "permitted to exercise their sound discretion in deciding which of the two prongs of the [QI] analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
We conclude, at the second prong, that the right at issue was not clearly established, so White is entitled to QI. It thus is unnecessary for us to reach the more complicated issue of whether a rights violation occurred at the first prong. See Callahan, 555 U.S. at 236, 129 S.Ct. 808.
At the time White allegedly violated plaintiffs' rights—March 2016, at the latest—this court's jurisprudence was ambiguous regarding whether First Amendment liability could attach to a public official who did not possess final decisionmaking authority.