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Clarkston v. White

United States Court of Appeals, Fifth Circuit

December 4, 2019

ALEASHIA CLARKSTON; KINGDOM BUILDERS COMMUNITY DEVELOPMENT CORPORATION, Plaintiffs-Appellants,
v.
JOHN WHITE, In His Individual Capacity as Superintendent of the Louisiana Department of Education, Defendant-Appellee.

          Appeal from the United States District Court for the Middle District of Louisiana

          Before OWEN, Chief Judge, SMITH and DENNIS, Circuit Judges.

         ON PETITION FOR REHEARING EN BANC

          PER CURIAM

         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:

          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 America's Supernanny. Plaintiffs sought damages via a 42 U.S.C. § 1983 claim for First Amendment retaliation and a state retaliation claim per article I, section 7 of the Louisiana Constitution. The district court held that Clarkston had "failed to state a valid claim for retaliation." We affirm on a different ground.

         I.

         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").[1] In connection with that appeal, the LDOE and SchoolWorks, a third-party evaluator contracted by the LDOE, evaluated plaintiffs' application. SchoolWorks recommended that the BESE approve the application, but the LDOE-through White-recommended that the BESE deny it.[2]

         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, [3] Transcendent Legal examined Clarkston's professionalism. It concluded that she exceeded expectations for one of the professional norms, met expectations for two, and failed to meet expectations for three. Transcendent Legal recognized that "[w]ithout question, Mrs. Clarkston's deficiencies in any given norm resulted solely from Mrs. Clarkston's decision to participate in the reality show Supernanny and/or the related publicizing of her participation in that television show just three (3) short years ago."

         In March 2016, after reviewing the evaluations of the School Board, SchoolWorks, and Transcendent Legal, the LDOE-through White-again recommended that the BESE deny plaintiffs' application. Highlighting that Transcendent Legal's "report provide[d] mixed conclusions regarding the professional judgment of the proposed school leader that neither disqualifies nor validates the Department's concerns," the LDOE emphasized that its "concerns serve not as definitive character statements, but rather as potential evidence of issues that should give BESE pause before authorizing the charter under the proposed leadership."

         After hearing from the LDOE, the BESE denied plaintiffs' application. Both sides now agree that the ...


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