ALEASHIA CLARKSTON; KINGDOM BUILDERS COMMUNITY DEVELOPMENT CORPORATION, Plaintiffs-Appellants,
JOHN WHITE, In His Individual Capacity as Superintendent of the Louisiana Department of Education, Defendant-Appellee.
from the United States District Court for the Middle District
OWEN, Chief Judge, SMITH and DENNIS, Circuit Judges.
PETITION FOR REHEARING EN BANC
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.
opinion issued October 25, 2019, is VACATED, and the
following opinion is substituted, the only change being to
add language to footnote 5:
E. SMITH, CIRCUIT JUDGE
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
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"). 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.
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
six norms used by the National Policy Board for Educational
Administration,  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."
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
hearing from the LDOE, the BESE denied plaintiffs'
application. Both sides now agree that the ...