Michael Holloman, a former student at Parrish High School in Walker County, Alabama, filed a § 1983 suit against Fawn Allred, his economics and government teacher; George Harland, the school principal; and the Walker County Board of Education ("School Board"), which oversaw the school. He claimed that his rights under the First Amendment's Speech Clause were violated when Allred and Harland punished him for silently raising his fist during the daily flag salute instead of reciting the Pledge of Allegiance with the rest of his class. He further claims that his Establishment Clause rights were violated by Allred's daily "ritual" of conducting a silent moment of prayer. He sought both legal and equitable relief.

The district court granted summary judgment on both claims to Allred and Harland on qualified immunity grounds. In a separate opinion, it granted summary judgment to the School Board, concluding that Holloman failed to articulate a violation of his constitutional rights or demonstrate a way in which the Board (as a municipal governing entity) could be held liable for the acts at issue here. Holloman appeals both rulings.

Subpart A of this Part examines the facts supporting Holloman's Speech Clause claim. Subpart B explains his Establishment Clause allegations. Subpart C sets forth the framework of state statutes and School Board regulations implicated by Holloman's claims, and Subpart D delves into the procedural history of this case in greater detail. Throughout this discussion, because we are reviewing grants of summary judgment to the defendants, we view the evidence in the light most favorable to the plaintiff. See Johnson v. Governor of Florida, 353 F.3d 1287, 1292 (11th Cir.2003).

Holloman contends that Allred and Harland violated his First Amendment right to free speech (as incorporated against the states through the Fourteenth Amendment's Due Process Clause) by treating him adversely because he silently raised his fist during the flag salute instead of reciting the Pledge of Allegiance.1 To understand what happened, it is necessary to consider their treatment of another student, John Michael Hutto, the day before their confrontation with Holloman.

Allred taught her Economics and Government class in the first period of each day, during which time the Pledge of Allegiance was recited over the school intercom system. It was customary for students to stand by their desks, with their hands over their hearts, and recite the pledge.

During the flag salute on May 16, 2000, Hutto remained silent with his hands in his pockets, without causing a disturbance. When Allred asked him why he was not participating in the flag salute, Hutto responded that he "didn't want to say it, he didn't have to say it, and he hadn't said it for a month." Allred stated, "You don't want to say the pledge and the United States Air Force Academy has given you a scholarship?," then continued class.

At lunch that day, Allred told Harland of Hutto's refusal to say the pledge. Harland became very angry and met with Allred, Hutto, and Vice Principal Jason Adkins in his office. Harland told Hutto that he was disappointed in Hutto's refusal to salute the flag, and threatened to report the incident to both Hutto's recruiter at the Air Force Academy as well as the Congressman who had recommended Hutto to the Academy. Harland also ordered Hutto to apologize to Allred and her class for refusing to salute the flag.

Later that day, Harland went to Hutto's physics class (in which Holloman was a student) and declared that "anyone who joined in [Hutto's] protest and refused to say the pledge or committed similar action would be punished." The following day, Hutto recited the Pledge of Allegiance with the rest of the class, and the day after that he apologized to Allred and her students.

During the flag salute on the day after the Hutto incident, Holloman stood with the other students in Allred's class, but did not recite the Pledge of Allegiance. Instead, he silently raised his fist in the air while the rest of the class recited the pledge; once the pledge was over, he sat down like everyone else. He did not say anything, touch any other students, disrupt the class, or obstruct anyone's view of the flag. Allred, however, immediately chastised him in front of the class, saying that he had acted inappropriately and "disrespectful[ly]," and that she was "disappointed." She then started class in her normal fashion.

Later that day, Allred informed Harland of what happened, and Harland summoned Allred and Holloman into the principal's office. Holloman explained that he had raised his fist "in protest of what happened to [Hutto]." Harland told Holloman "how disappointed he was, and that he felt that he had failed teaching Michael Holloman responsibility, morals and values." He also informed Holloman that he would have to serve three days' detention and could not receive his diploma until after he completed his punishment. In addition, Harland required Holloman to apologize to Allred's class. When Holloman left Harland's office, Harland called Holloman's mother, explaining "that he was too mad and upset to punish Michael at the time because he may hurt Michael."

Since graduation was that Friday, there was not enough time left in the school year for Holloman to serve his detentions while still being able to receive his diploma on graduation day. Harland consequently offered Holloman the opportunity to receive a paddling instead. Holloman agreed and, with Allred watching, was paddled by Harland.

Allred began her Economics and Government class almost every day by asking, "Does anyone have any prayer requests?" After her students offered various dedications, Allred would hold a moment of silence. Allred frequently opened this moment of silence by saying "Let us pray," and often ended it by saying "Amen." Allred explicitly states that over the 1999-2000 school year, this practice became a daily "ritual." She never told her students that they were free to leave the room during either her prayer requests or the subsequent moment of silent prayer.

One day, Vice Principal Adkins sat in on her class and personally observed this phenomenon. When Allred attempted to begin her economics lesson, one of her students raised her hand and reminded Allred that she had forgotten to elicit her customary prayer requests. At that point, Allred took prayer requests from the class, then commenced a moment of silence by saying, "Let us pray." On another occasion, at the conclusion of the moment of silence, Allred permitted one of her students to read aloud a passage from the Bible.

The events in this case did not occur in a vacuum. In 1995, the Alabama state legislature enacted a statute which required the State Board of Education and all local school boards to

develop and implement ... a comprehensive character education program for all grades to consist of not less than ten minutes of instruction per day focusing upon the students' development of the following character traits: courage, patriotism, citizenship, honesty, fairness, respect for others, kindness, cooperation, self-respect, self-control, courtesy, compassion, tolerance, diligence, generosity, punctuality, cleanliness, cheerfulness, school pride, respect for the environment, patience, creativity, sportsmanship, loyalty, and perseverance. Each plan of instruction shall include the Pledge of Allegiance to the American flag.

Ala.Code § 16-6B-2(h). This law made daily recitation of the Pledge of Allegiance a part of the character education program the Legislature required local school boards to implement. A separate statute, however, emphasized that students should not be forced to recite the pledge. See Ala.Code § 16-43-5 ("The State Board of Education shall afford all students attending public kindergarten, primary and secondary schools the opportunity each school day to voluntarily recite the pledge of allegiance to the United States flag." (emphasis added)).

To implement these requirements, Larry Banks, the Superintendent of the Walker County School District, sent a letter on behalf of the Walker County Board of Education to all the principals in the district, stating, "[E]ach school system must incorporate a Character Education Plan which will consist of 10 minutes of instruction per day in various areas, such as, the Pledge of Allegiance.... Each day must include the Pledge of Allegiance and then other areas as mentioned as you determine at your school."

Banks also sent each principal a form to complete to specify how each school intended to incorporate into its curriculum the character-education requirements set forth above. The memo directed, "Please begin to make plans and be prepared to submit your local Character Education Plan [to the county school board] which must be forwarded to the State Superintendent's Office." The County School Board apparently had to either review or approve each school's character education plan before it was forwarded to the State. Allred contends that her daily moment of silent prayer was conducted in partial fulfillment of these character education requirements — it was intended to teach compassion.

On July 3, 2000, Holloman and Hutto filed a class action suit under 42 U.S.C. § 1983 in the Northern District of Alabama against the Walker County Board of Education, Harland, Adkins, and Allred. They alleged that their First Amendment rights had been violated because they had been chastised, threatened, and punished for refusing to say the Pledge of Allegiance. They also claimed that Allred's practice of soliciting prayer requests and setting aside a moment of silence for prayer violated the Establishment Clause. The complaint sought compensatory and punitive damages, as well as declaratory and injunctive relief.

A few months later, an amended complaint was filed; it was substantially identical to the original except Hutto was no longer a party. The district court dismissed Jason Adkins as a defendant (with Holloman's consent), and declined to certify the class action. Holloman does not appeal either of these rulings.

In their answer to Holloman's amended complaint, Allred and Harland cited qualified immunity as an affirmative defense. They later moved the court for summary judgment on qualified immunity grounds. The court granted their motion and dismissed them from the case. It concluded that Holloman's Speech Clause allegations did not constitute a First Amendment violation, and certainly not a violation of a right that was "clearly established" at the time of the incidents. The court also rejected Holloman's Establishment Clause claims, stating there was no Eleventh Circuit precedent during the 1999-2000 school year that "clearly established" a moment of silence for prayer as being unconstitutional. Holloman appealed the court's decision to grant Allred and Harland summary judgment on qualified immunity grounds.2

Following the district court's dismissal of Holloman's claims against Allred and Harland, the Board of Education also sought summary judgment. The court granted the Board's motion, concluding that Holloman had not alleged facts sufficient to hold the Board liable under § 1983. Holloman appeals this ruling as well, arguing that he stated valid claims against the School Board.3

In these consolidated appeals, we review the district court orders granting the defendants summary judgment. Part II of this opinion explains why the district court erred in granting Allred and Harland summary judgment on qualified immunity grounds against Holloman's Speech Clause claims. Part III shows that Allred is not even potentially entitled to summary judgment on qualified immunity grounds against Holloman's Establishment Clause claims because she has not established as a matter of law that, in holding her daily moment of silent prayer, she was engaged in a discretionary function of her job. Part IV assesses Holloman's underlying Establishment Clause claim, concluding that he has introduced evidence sufficient to support a determination that a clearly established right has been violated.4 Part V discusses how Holloman has successfully articulated several theories under which the School Board may be held liable for the Speech and Establishment Clause violations, while Part VI briefly concludes.

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law [or] suit in equity....

42 U.S.C. § 1983. There are two ways in which an individual may be held liable under § 1983 — he may be sued for his own personal actions ("direct liability"), or, under certain limited circumstances, for the actions of his subordinates ("supervisoral liability"), see, e.g., Lewis v. Smith, 855 F.2d 736, 738 (11th Cir.1988).5

When a government official is sued under a theory of direct liability, he may seek summary judgment on qualified immunity grounds.6 To even be potentially eligible for summary judgment due to qualified immunity, the official must have been engaged in a "discretionary function" when he performed the acts of which the plaintiff complains. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (holding that qualified immunity extends to "government officials performing discretionary functions"). It is the burden of the governmental official to make this showing. Storck v. City of Coral Springs, 354 F.3d 1307, 1314 (2003) ("Under qualified immunity analysis, the public official must first prove that he was acting within the scope of his discretionary authority when the allegedly unconstitutional acts took place." (emphasis added)). A defendant unable to meet this burden may not receive summary judgment on qualified immunity grounds. Lumley v. City of Dade City, 327 F.3d 1186, 1194 (11th Cir.2003) ("If the defendants were not acting within their discretionary authority, they are ineligible for the benefit of qualified immunity."); see also Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002). While a number of our cases omit this step of the analysis, see, e.g., Denno v. Sch. Bd., 218 F.3d 1267 (11th Cir.2000); Hall v. Talladega City Bd. of Educ., 115 F.3d 821 (11th Cir.1997), binding Supreme Court and Eleventh Circuit precedents require us to consider expressly this critical threshold matter. We explain this "discretionary function" test in greater detail in Subpart II.A.

If, interpreting the evidence in the light most favorable to the plaintiff, the court concludes that the defendant was engaged in a discretionary function, then the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity. Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir.2003) ("Once a defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity."). To overcome qualified immunity, the plaintiff must satisfy a two prong test; he must show that: (1) the defendant violated a constitutional right, and (2) this right was clearly established at the time of the alleged violation.7 Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 1697, 143 L.Ed.2d 818 (1999) ("A court evaluating a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.") (quotations and citations omitted). If the plaintiff prevails on both prongs of this test, then the defendant is unable to obtain summary judgment on qualified immunity grounds.

Applying this test, the district court awarded Allred and Harland summary judgment against Holloman's Speech Clause claims. The Speech Clause of the First Amendment protects at least two separate, yet related, rights: (1) the right to freedom of expression, and (2) the right to be free from compelled expression. United States v. United Foods, Inc., 533 U.S. 405, 410, 121 S.Ct. 2334, 2338, 150 L.Ed.2d 438 (2001). These rights unquestionably exist in public schools. See Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969).

Holloman argues that Allred and Harland are directly liable for violating both constitutional rights guaranteed by the Speech Clause. First, he maintains, they violated his right to be free from compelled expression by chastising, threatening, and ultimately punishing him for failing to recite the Pledge of Allegiance. Second, to the extent that he was punished for silently raising his fist in the air during the Pledge of Allegiance (rather than for simply failing to recite the pledge), Holloman contends that Allred and Harland violated his right to engage in affirmative expression. Finally, regardless of whether Holloman's expression was constitutionally protected in itself, he has the First Amendment right to be free of viewpoint-based discrimination and punishment.

We conclude that neither Allred nor Harland are not entitled to summary judgment on qualified immunity grounds against any of these First Amendment claims. In Subpart II.A, we conclude that both Allred and Harland were engaged in a discretionary function at the time they disciplined Holloman in connection with the flag salute incident, and so are potentially entitled to summary judgment on qualified immunity grounds. In Subpart II.B, we discuss how the evidence — interpreted in the light most favorable to Holloman — supports the conclusion that his clearly-established right to be free from compelled speech was violated. Subpart II.C makes a similar finding regarding his right to engage in affirmative expression. Subpart II.D concludes that, even if — as the dissent contends — Holloman's expression was not itself constitutionally protected, Allred's behavior nevertheless violated the First Amendment because she punished him for expressing a viewpoint she found repugnant, rather than for any disruption he purportedly caused (which, interpreting the evidence in his favor, was entirely negligible). Consequently, Holloman has made the necessary showings with regard to his three Speech Clause claims to overcome Allred's and Harland's assertions of qualified immunity at this stage.

In many areas other than qualified immunity, a "discretionary function" is defined as an activity requiring the exercise of independent judgment, and is the opposite of a "ministerial task." See, e.g., Williams v. Wood, 612 F.2d 982, 985 (5th Cir.1980).8 In the qualified immunity context, however, we appear to have abandoned this "discretionary function/ministerial task" dichotomy. In McCoy v. Webster, 47 F.3d 404, 407 (11th Cir.1995), we interpreted "the term `discretionary authority' to include actions that do not necessarily involve an element of choice," and emphasized that, for purposes of qualified immunity, a governmental actor engaged in purely ministerial activities can nevertheless be performing a discretionary function.

Instead of focusing on whether the acts in question involved the exercise of actual discretion, we assess whether they are of a type that fell within the employee's job responsibilities. Our inquiry is two-fold. We ask whether the government employee was (a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within his power to utilize. See Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1185 n. 17 (11th Cir.1994) ("A government official acts within his or her discretionary authority if objective circumstances compel the conclusion that challenged actions occurred in the performance of the official's duties and within the scope of this authority." (emphasis added)).

One might reasonably believe that violating someone's constitutional rights is never a legitimate job-related function or within the scope of a government official's authority or power. As we explained in Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir.1998) (quotation marks and citation omitted), however, "the inquiry is not whether it was within the defendant's authority to commit the allegedly illegal act. Framed that way, the inquiry is no more than an untenable tautology." In applying each prong of this test, we look to the general nature of the defendant's action, temporarily putting aside the fact that it may have been committed for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or under constitutionally inappropriate circumstances.

Consider the first prong of the test — whether the official is engaged in a legitimate job-related function. In Sims v. Metropolitan Dade County, 972 F.2d 1230 (11th Cir.1992), "we did not ask whether it was within the defendant's authority to suspend an employee for an improper reason; instead, we asked whether [the defendant's] discretionary duties included the administration of discipline." Harbert, 157 F.3d at 1282. Similarly, in assessing whether a police officer may assert qualified immunity against a Fourth Amendment claim, we do not ask whether he has the right to engage in unconstitutional searches and seizures, but whether engaging in searches and seizures in general is a part of his job-related powers and responsibilities. See, e.g., Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir.1997). Put another way, to pass the first step of the discretionary function test for qualified immunity, the defendant must have been performing a function that, but for the alleged constitutional infirmity, would have fallen with his legitimate job description.

Of course, we must be sure not to characterize and assess the defendant's act at too high a level of generality. Nearly every act performed by a government employee can be described, in general terms, as ostensibly "furthering the public interest." If we jump to such a high level of abstraction, it becomes impossible to determine whether the employee was truly acting within the proper scope of his job-related activities. Consequently, we consider a government official's actions at the minimum level of generality necessary to remove the constitutional taint. In considering whether an act of allegedly excessive force fell within a police officer's duties, for example, we do not ask whether police have the right to use excessive force. We also do not immediately jump to a high level of generality and ask whether police are responsible for enforcing the law or promoting the public interest. We instead ask whether they have the power to attempt to effectuate arrests. See, e.g., Ferraro, 284 F.3d at 1194 (holding, in an excessive force suit, "there can be no doubt that [the police officer defendant] was acting in his discretionary capacity when he arrested [plaintiff]").

After determining that an official is engaged in a legitimate job-related function, it is then necessary to turn to the second prong of the test and determine whether he is executing that job-related function — that is, pursuing his job-related goals — in an authorized manner. The primary purpose of the qualified immunity doctrine is to allow government employees to enjoy a degree of protection only when exercising powers that legitimately form a part of their jobs. See, e.g., Harlow, 457 U.S. at 819 & n. 34, 102 S.Ct. at 2739 & n. 34 (limiting the availability of qualified immunity to situations where "an official's duties legitimately require action" and to "actions within the scope of an official's duties"). Each government employee is given only a certain "arsenal" of powers with which to accomplish her goals. For example, it is not within a teacher's official powers to sign her students up for the Army to promote patriotism or civic virtue, or to compel them to bring their property to school to redistribute their wealth to the poor so that they can have firsthand experience with altruism.

Employment by a local, county, state, or federal government is not a carte blanche invitation to push the envelope and tackle matters far beyond one's job description or achieve one's official goals through unauthorized means. Pursuing a job-related goal through means that fall outside the range of discretion that comes with an employee's job is not protected by qualified immunity.

Under this standard, Allred — as a matter of law — was undoubtedly engaged in a discretionary function in chastising Holloman for raising his fist during the Pledge of Allegiance and later referring him to Harland for punishment. Though Allred is not empowered to violate constitutional rights as part of her official duties, she did have the responsibility of maintaining decorum in the classroom. The fact that she may have attempted to keep order in the classroom in an unconstitutional manner does not change the fact that she was fulfilling a legitimate job-related function. Moreover, the ways in which she attempted to pursue this job-related goal (chastising Holloman and reporting him to the principal) — examined on a general level rather than in this specific application — were legitimate prerogatives of her job. From an alternate perspective, putting aside Holloman's First Amendment claim, Allred's actions would undoubtedly be considered part of her duties and legitimate exercises of her authority. Consequently, under the two-prong test articulated above, her activities in relation to the flag salute incident were discretionary acts for which she may seek qualified immunity.

For similar reasons, Harland is also potentially entitled to qualified immunity against Holloman's Speech Clause claims. Disciplining students is a legitimate discretionary function performed by principals. See Kirkland v. Greene County Bd. of Educ., 347 F.3d 903, 903 n. 1 (11th Cir.2003), and in the State of Alabama, spanking students is a legitimate part of a principal's "arsenal" for enforcing such discipline. Consequently, the burden shifts to Holloman to demonstrate that Allred and Harland are not entitled to summary judgment on qualified immunity grounds.

As discussed earlier, once a defendant establishes that he was engaged in a discretionary function at the time of the acts in question, the burden shifts to the plaintiff to show that the defendant is not entitled to summary judgment on qualified immunity grounds. To do so, the plaintiff must demonstrate that a reasonable jury could interpret the evidence in the record as showing that the defendant violated a constitutional right that was clearly established at the time of the acts in question.

We begin by examining Holloman's claim that Allred and Harland violated his First Amendment right to be free from compelled speech. Section 1 considers whether Holloman has successfully articulated a violation of a constitutional right, while Section 2 analyzes whether such a right was clearly established at the time of the incidents. Based on these discussions, we conclude that, interpreting the evidence in the light most favorable to Holloman, both Allred and Harland engaged in acts amounting to violations of Holloman's right to be free from compelled speech. Consequently, neither defendant is entitled to summary judgment on qualified immunity grounds against this Speech Clause claim.

The Speech Clause of the First Amendment states, "Congress shall make no law ... abridging the freedom of speech...." U.S. Const. amend. I. The First Amendment, as incorporated through the Due Process Clause of the Fourteenth Amendment, Near v. Minnesota, 283 U.S. 697, 707, 51 S.Ct. 625, 628, 75 L.Ed. 1357 (1931), applies to state and municipal governments, state-created entities, and state and municipal employees, West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943).

In Barnette, the Court held that the right to be free from compelled speech protects public school students from being forced to participate in the flag salute. It stated, "[T]he action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control." Id. at 642, 63 S.Ct. at 1187.

Several pieces of evidence in the record support Holloman's contention that he was disciplined for failing to recite the Pledge of Allegiance. First, the day before the Holloman incident, John Michael Hutto was chastised in front of the class, sent to the Principal's office, threatened that his recommendation to the Air Force Academy would be revoked, and forced to apologize to his teacher and classmates, simply because he remained silent during the Pledge of Allegiance (without engaging in any affirmatively expressive activity). Second, Allred's deposition is replete with references to her "patriotism" and desire to see the American flag saluted in the "proper" or "normal" way; she was deeply offended by the notion of Americans not wanting to salute the flag.

Third, according to Holloman's affidavit, Harland interrupted Holloman's physics class to explicitly threaten that any students who refused to say the Pledge of Allegiance would be punished. Fourth, the affidavits of both Holloman and his mother state that he was told he was being punished for failing to salute the flag. Indeed, Harland told Holloman's mother during their phone conversation that he had to wait before disciplining Holloman because he was afraid that he (Harland) would hurt him. Consequently, there is more than enough evidence in the record to allow a reasonable jury to adopt this interpretation of events.

Allred's acts (if proven at trial), as a matter of law, violated Holloman's constitutional rights. First, according to Allred's own testimony, she instructed him that there were only two "permissible" ways of saying the pledge, and that any other way of doing so was prohibited. Second, she verbally chastised him in front of the class for his constitutionally protected actions (either failing to salute the flag or expressing his opinion in a non-disruptive fashion).

Verbal censure is a form of punishment, albeit a mild one. The intent behind this act was to dissuade him from exercising a constitutional right. She singled out Holloman in front of his entire class, subjecting him to embarrassment and humiliation. Given the gross disparity in power between a teacher and a student, such comments — particularly in front of the student's peers — coming from an authority figure with tremendous discretionary authority, whose words carry a presumption of legitimacy, cannot help but have a tremendous chilling effect on the exercise of First Amendment rights. See Riley v. Nat'l Fed'n of the Blind, 487 U.S. 781, 794, 108 S.Ct. 2667, 2676, 101 L.Ed.2d 669 (1988) (invaliding a "scheme" that "must necessarily chill speech in direct contravention of the First Amendment's dictates"); Dickerson v. United States, 530 U.S. 428, 459, 120 S.Ct. 2326, 2344, 147 L.Ed.2d 405 (2000) (Scalia, J., dissenting) ("[T]he Court has viewed the importation of `chill' as itself a violation of the First Amendment.") (emphasis in original). As in the Establishment Clause context, such "public pressure... can be as real as any overt compulsion," particularly in a "classroom setting, where ... the risk of compulsion is especially high"; such measures may not be used to deter, even if "subtl[y] or indirect[ly]," the exercise of constitutional rights. Lee v. Weisman, 505 U.S. 577, 593, 596, 112 S.Ct. 2649, 2658, 2660, 120 L.Ed.2d 467 (1992).

Finally, Allred played a major role in the administration of Holloman's more formal punishment, his paddling. She reported the incident to the principal with the intent and hope that Holloman be disciplined, was present during Holloman's questioning by Harland, did not object or attempt to dissuade Harland in any way, was present for the paddling, and manifested her approval of it throughout the entire process. For similar reasons, Holloman has also adduced sufficient evidence to support his claim against Harland, the one who actually spanked him.

Having demonstrated that the record amply supports Holloman's contention that the defendants violated his constitutional right to be free from compelled speech, we now consider whether this right was clearly established at the time of the events in question.

Barnette, 319 U.S. at 642, 63 S.Ct. at 1187, clearly and specifically established that schoolchildren have the right to refuse to say the Pledge of Allegiance. Under Barnette, any "reasonable person would have known" that disciplining Holloman for refusing to recite the pledge impermissibly chills his First Amendment rights. Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir.2001) (citation omitted). Consequently, on these alleged facts, Allred and Harland are not entitled to qualified immunity against Holloman's claims related to compelled speech. We reverse the district court's holding to the contrary.

Having assessed the viability of Holloman's First Amendment claim to be free from compelled speech, we now turn to Holloman's First Amendment claim to engage in affirmative expression.

One of Holloman's alternate bases for recovery under the First Amendment is that the defendants punished him for engaging in constitutionally protected speech. He maintains, in other words, that even if the defendants punished him for silently raising his fist during the Pledge of Allegiance — rather than for merely remaining silent during the pledge — his rights under the Speech Clause were still violated. The district court dedicated the overwhelming majority of its opinion regarding Allred and Harland to this argument, concluding that "[n]o jury could reasonably conclude that `every like-situated, reasonable' teacher or principal would necessarily know that punishing Holloman for his unorthodox and deliberately provocative and disruptive gesture violated federal law...." (Mem. Op., June 4, 2001, at 10).

We are again forced to reverse. Section 1 shows that the evidence (interpreted in Holloman's favor) demonstrates the existence of a limited constitutional right to engage in non-disruptive expression in a classroom environment, while Section 2 demonstrates that this right was clearly established when the defendants chastised and punished him. Consequently, Allred and Harland are not entitled to summary judgment on qualified immunity grounds against Holloman's Speech Clause claim regarding his right to express himself.

The Constitution guarantees students (and all people) the right to engage not only in "pure speech," but "expressive conduct," as well. See United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968). In Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), the Supreme Court held that, to determine whether a particular act counts as expressive conduct, a court must determine whether "[a]n intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." Id. at 410-11, 94 S.Ct. at 2730. The Court later liberalized this test, however, emphasizing that "a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a `particularized message,' would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll." Hurley v. Irish-Am., Gay, Lesbian & Bisexual Group of Boston, etc., 515 U.S. 557, 569, 115 S.Ct. 2338, 2345, 132 L.Ed.2d 487 (1995). Thus, in determining whether conduct is expressive, we ask whether the reasonable person would interpret it as some sort of message, not whether an observer would necessarily infer a specific message.

At the very least, Holloman's gesture was expressive conduct. It is quite reasonable to infer that at least some students would have recognized his act for what it was — a protest over Allred's treatment of Hutto. Even if students were not aware of the specific message Holloman was attempting to convey, his fist clearly expressed a generalized message of disagreement or protest directed toward Allred, the school, or the country in general.

It is quite possible, however, that Holloman's act constituted "pure speech." As the Court suggested in O'Brien, 391 U.S. at 376, 88 S.Ct. at 1678, expressive conduct is an act with significant "`non-speech' elements," that is being used in a particular situation to convey a message. Holloman's act does not contain any of the substantive "non-speech" elements that are necessary to remove something from the realm of "pure speech" into the realm of expressive conduct. It seems as purely communicative as a sign-language gesture or the act of holding up a sign, and in this respect is similar to the wearing of a black armband, which the Tinker Court found to be a "primary First Amendment right[] akin to `pure speech.'" 393 U.S. at 508, 89 S.Ct. at 737.

It does not ultimately matter whether Holloman's act is characterized as "pure speech" or "expressive conduct" because this circuit appears to apply the same test in assessing school restrictions on either kind of expression. This Section summarizes these principles and applies them to the instant case.

a.

As with all rights, the scope of the First Amendment has boundaries. On many occasions, we have affirmed the right of public educational institutions "to adopt and enforce reasonable, non-discriminatory regulations as to the time, place and manner of student expressions and demonstrations." Bayless v. Martine, 430 F.2d 873, 878 (5th Cir.1970). This "reasonableness" test is not the anemic simulacrum of a constraint on governmental power found in the Due Process Clause's "rational basis" test, see, e.g., Williamson v. Lee Optical, 348 U.S. 483, 487-88, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955), but rather a more robust notion of "reasonableness" such as that applied in the Fourth Amendment context, see U.S. Const. amend. IV (prohibiting "unreasonable searches and seizures").

In Burnside v. Byars, we articulated the way to determine whether a public school regulation that curtailed expression was reasonable:

[S]chool officials cannot ignore expressions of feelings with which they do not wish to contend. They cannot infringe on their students' right to free and unrestricted expression as guaranteed to them under the First Amendment to the Constitution, where the exercise of such rights in the school buildings and schoolrooms do[es] not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.

363 F.2d at 749. Under the Burnside standard, student expression may unquestionably be regulated when doing so "contributes to the maintenance of order and decorum within the educational system." Id. at 748; accord Tinker, 393 U.S. at 514, 89 S.Ct. at 740 (holding that a school may not prohibit expressive activity unless there are "facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities"); Shanley, 462 F.2d at 969 ("The test for curtailing in-school exercise of expression is whether or not the expression or its method of exercise `materially and substantially' interferes with the activities or discipline of the school."). This doctrine allows school authorities to prohibit, among other things, "lewd, indecent, or offensive speech.... The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission." Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 683, 685, 106 S.Ct. 3159, 3164-65, 92 L.Ed.2d 549 (1986); see also Healy v. James, 408 U.S. 169, 189, 92 S.Ct. 2338, 2350, 33 L.Ed.2d 266 (1972) ("[First Amendment] [a]ssociational activities need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education.").

However, in assessing the reasonableness of regulations that tread upon expression, we cannot simply defer to the specter of disruption or the mere theoretical possibility of discord, or even some de minimis, insubstantial impact on classroom decorum. Particularly given the fact that young people are required by law to spend a substantial portion of their lives in classrooms, student expression may not be suppressed simply because it gives rise to some slight, easily overlooked disruption, including but not limited to "a showing of mild curiosity" by other students, see Burnside, 363 F.2d at 748, "discussion and comment" among students, Reineke v. Cobb Cty. Sch. Dist., 484 F.Supp. 1252, 1261 (N.D.Ga.1980), or even some "hostile remarks" or "discussion outside of the classrooms" by other students, Tinker, 393 U.S. at 508, 514, 89 S.Ct. at 737, 740. For example, one district court correctly found that a teacher was unjustified in censoring an article in the school newspaper because it was "inconceivable that the use of the word `damn' one time in the newspaper would have caused material and substantial interference with school activities." Reineke, 484 F.Supp. at 1258.

The dissent concludes that Holloman's gesture was unprotected because "[t]he students' comments [to Allred after class] demonstrate that they at least focused their attention during a portion of the recitation of the Pledge on Holloman's fist... rather than on the planned curriculum of saying the Pledge." This approach appears to ignore the principle discussed above that student expression must cause (or be likely to cause) a "material[] and substantial[]" disruption, Burnside, 363 F.2d at 749, and more than a brief, easily overlooked, de minimis impact, before it may be curtailed. The dissent argues that Holloman's act was "meant to compete for students' attention." The same can be said of any of the forms of student expression that have been found to be protected, including the wearing of armbands or buttons in class. A student expressing himself in those ways clearly intends to attract the other students' attention and have them consider, however briefly, the meaning behind the symbolism. Indeed, if a student's attention is never focused, if even for a moment, on the expression, it becomes pointless. Under the dissent's approach, where schools may prohibit any speech or acts that do anything to distract a student's mind — however briefly or insubstantially — from the planned curriculum, constitutional protection for student expression by definition would be eliminated.

This point was made quite clearly in Parducci v. Rutland, 316 F.Supp. 352 (M.D.Ala.1970), where a teacher was terminated because she assigned a short story that school administrators found offensive. The district court recognized that First Amendment freedoms in public schools, including a teacher's right to academic freedom, could be constitutionally abridged under Tinker and Burnside only if there was a realistic threat that the conduct at issue would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." Id. at 355. The court, correctly applying our precedents, held:

Rather than there being a threatened or actual substantial disruption to the educational processes of the school, the evidence reflects that the assigning of the story was greeted with apathy by most of the students. Only three of plaintiff's students asked to be excused from the assignment. On this question of whether there was a material and substantial threat of disruption, the Principal testified at the School Board hearing that there was no indication that any of plaintiff's other 87 students were planning to disrupt the normal routine of the school. This Court now specifically finds and concludes that the conduct for which plaintiff was dismissed was not such that "would materially and substantially interfere with" reasonable requirements of discipline in the school.

Id. at 356. There is no evidence in the record to suggest that Holloman's gesture caused any more disturbance or unrest than Parducci's assignment. By focusing entirely on whether students may have been momentarily "distracted," rather than on whether the distraction or disruption was "material" or "substantial," the dissent gives insufficient protection to students' First Amendment rights and incorrectly applies our precedents.

While certain types of expression unquestionably cause enough of a threat of disruption to warrant suppression even before negative consequences occur, "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression," even in schools. Tinker, 393 U.S. at 508, 89 S.Ct. at 737. "[T]here must be demonstrable factors that would give rise to any reasonable forecast by the school administration of `substantial and material' disruption of school activities before expression may be constitutionally restrained." Shanley, 462 F.2d at 974; accord Center for Participant Ed. v. Marshall, 337 F.Supp. 126, 135 (N.D.Fla.1972) (suggesting that a "speculative fear" is insufficient to justify restrictions on student expression, but a "real and immediate fear of conduct potentially disruptive of the university routine" is enough).

We recognize that this test is more restrictive than the parsimonious interpretation of students' First Amendment freedoms offered in Ferrell v. Dallas Indep. Sch. Dist., 392 F.2d 697 (5th Cir.1968). In Ferrell, a high school principal suspended students in a rock-and-roll band for growing their hair too long. This court upheld the principal's regulation because the principal felt "that the length and style of the boys' hair would cause commotion, trouble, distraction, and a disturbance in the school...." Id. at 699. To the degree this ruling is based on the principal's abstract concerns, it is patently inconsistent with the principle articulated in Tinker, Burnside, and numerous other cases discussed throughout this Subsection, that there must be a real or substantial threat of actual disorder, as opposed to the mere possibility of one. We are bound to follow Burnside rather than Ferrell because it is the earlier case. See Local Union 48 Sheet Metal Workers v. S.L. Pappas & Co., 106 F.3d 970, 975 (11th Cir.1997). Similarly, we must follow Tinker rather than Ferrell because it is an intervening, inconsistent Supreme Court decision. See Lufkin v. McCallum, 956 F.2d 1104, 1107 (11th Cir.1992). Consequently, we apply the Tinker-Burnside doctrine in this case.

This Tinker-Burnside standard we reaffirm today was applied in Banks v. Bd. of Public Instr., 314 F.Supp. 285 (S.D.Fla.1970), vacated by 401 U.S. 988, 91 S.Ct. 1223, 28 L.Ed.2d 526 (1971), reinstated without published opinion by dist. ct. and aff'd, 450 F.2d 1103 (5th Cir.1971), a case similar to this one, where a student was suspended for failing to stand during the Pledge of Allegiance. The district court held, "The conduct of Andrew Banks in refusing to stand during the pledge ceremony constituted an expression of his religious beliefs and political opinions. His refusal to stand was no less a form of expression than the wearing of the black armband was to Mary Beth Tinker. He was exercising a right `akin to pure speech.'" Id. at 295. While at first glance it might seem like Banks's right to be free from compelled speech was at issue in that case, the above quote from the district court makes clear that its ruling was not based on Banks's First Amendment right to remain silent, but his First Amendment right to affirmatively express himself. Both the school administration and the court in that case perceived Banks's act of remaining seated while everyone else was standing as an expressive act, rather than a mere refusal to speak. In upholding his right to act in such a way, the district court observed, "The unrefuted testimony clearly reflects that the plaintiff's refusal to stand has not caused any disruption in the educational process." Id.; cf. Jenkins v. Louisiana State Bd. of Educ., 506 F.2d 992 (5th Cir.1975) (upholding restrictions on college students' activities because "[t]he actions of appellants resulted in a material disruption of the campus and of the rights of others. They were not protected by the First Amendment."). We therefore find Banks to be fully consistent with the approach mandated by Burnside and Tinker, and conclude that Holloman's gesture was sufficiently akin to Banks's refusal to stand (in that neither had any real impact on class discipline) as to be entitled to First Amendment protection.

Our cases involving "freedom buttons" are perhaps even more instructive. In Blackwell v. Issaquena Cty. Bd. of Educ., 363 F.2d 749 (5th Cir.1966), black elementary school students wore "freedom buttons" to class in support of the civil rights movement.

[S]ome of these students were creating a disturbance by noisily talking in the hall when they were scheduled to be in class.... [Some students] accosted other students by pinning the buttons on them even though they did not ask for one. One of the students tried to put a button on a younger child who began crying. This activity created a state of confusion, disrupted class instruction, and resulted in a general breakdown of orderly discipline.

Id. at 750-52 (footnote omitted). We held that the principal did not violate the students' constitutional rights by punishing them for their behavior and, under those circumstances, banning the buttons from the school. Such a restriction on student expression was justified, notwithstanding the First Amendment, because the "students conducted themselves in a disorderly manner, disrupted classroom procedure, interfered with the proper decorum and discipline of the school and disturbed other students who did not wish to participate in the wearing of the buttons." Id. at 753.

In Burnside, however, the same panel of this court, on the same day, emphasized that the mere possibility of such consequences did not justify a different school in banning freedom buttons. 363 F.2d at 748 (overturning school's ban on freedom buttons because "affidavits and testimony before the District Court reveal no interference with educational activity and do not support a conclusion that there was a commotion or that the buttons tended to distract the minds of the students away from their teachers") (emphasis omitted). The Burnside-Blackwell dyad demonstrates that the permissibility of a restriction on student expression cannot be determined in the abstract, but must be assessed with at least one eye toward the actual or likely (not merely potential) impact of that expression on the learning environment. Conduct that may be constitutionally protected in one school or under one set of circumstances may tend to incite disruption or disorder — and so be constitutionally proscribable — in others. Where students' expressive activity does not materially interfere with a school's vital educational mission, and does not raise a realistic chance of doing so, it may not be prohibited simply because it conceivably might have such an effect.

b.

Allred maintains that it was appropriate for her to discipline Holloman because the other students were disturbed by his demonstration. She claims a number of them came up to her after class and told her that what he did wasn't "right." She also expressed concern that his behavior would lead to further disruptions by other students.

The fact that other students may have disagreed with either Holloman's act or the message it conveyed is irrelevant to our analysis. See Tinker, 393 U.S. at 509, 89 S.Ct. at 738 ("In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."); Near v. Minnesota, 283 U.S. 697, 722, 51 S.Ct. 625, 633, 75 L.Ed. 1357 (1931) ("If the township may prevent the circulation of a newspaper for no reason other than that some of its inhabitants may violently disagree with it, and resent its circulation by resorting to physical violence, there is no limit to what may be prohibited.") (quotation and citation omitted).

Nor is Holloman's expression removed from the realm of constitutional protection simply because the students cloaked their disagreement in the guise of offense or disgust. Holloman's behavior was not directed "toward" anyone or any group and could not be construed by a reasonable person (including a high school student) as a personal offense or insult.

Ferrell v. Dallas Indep. Sch. Dist. arguably supports Allred's position. In Ferrell, this court held that a school could prohibit students from wearing long hair simply because their choice of hairstyle "provoked" other students into breaking school rules and the law by responding violently. The court justified the hair-length regulation by pointing to such considerations:

On one occasion a group of boys in his school had decided that a classmate's hair was too long and that they were going to take the matter in their own hands and trim it themselves. Mr. Lanham stated that boys with long hair were subjected to substantial harassment. Obscene language had been used by some students in reference to others with long hair and girls had come to his office complaining about the language being used. The long hair boys had also been challenged to a fight by other boys who did not like long hair. Also, long hair boys had been told by others that the girl's restroom was right down the hall.

392 F.2d at 700-01.

Allowing a school to curtail a student's freedom of expression based on such factors turns reason on its head. If certain bullies are likely to act violently when a student wears long hair, it is unquestionably easy for a principal to preclude the outburst by preventing the student from wearing long hair. To do so, however, is to sacrifice freedom upon the alter of order, and allow the scope of our liberty to be dictated by the inclinations of the unlawful mob. If bullies disrupted classes and beat up a student who refused to join the football team, the proper solution would not be to force the student to join the football team, but to protect the student and punish the bullies. If bullies disrupted classes and beat up a student because he wasn't wearing fancy enough clothes, the proper solution would not be to force the student to wear Abercrombie & Fitch or J. Crew attire, but to protect the student and punish the bullies. The same analysis applies to a student with long hair, who is doing nothing that the reasonable person would conclude is objectively wrong or directly offensive to anyone. The fact that other students might take such a hairstyle as an incitement to violence is an indictment of those other students, not long hair.

Such reasoning is part of the basis for Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365, 22 L.Ed.2d 572 (1969), where the Supreme Court held that "the possible tendency of appellant's words to provoke violent retaliation" is not a basis for banning those words unless they are "fighting words." Street's conviction was reversed because "[t]hough it is conceivable that some listeners might have been moved to retaliate upon hearing appellant's disrespectful words, we cannot say that appellant's remarks were so inherently inflammatory as to come within that small class of `fighting words' which are `likely to provoke the average person to retaliation, and thereby cause a breach of the peace.'" Id. (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 770, 86 L.Ed. 1031 (1942)); see also Cantwell v. Connecticut, 310 U.S. 296, 308-10, 60 S.Ct. 900, 905-06, 84 L.Ed. 1213 (1940) (reversing conviction for breaching the peace in a case where there was "no assault or threatening of bodily harm, no truculent bearing, no intentional discourtesy, no personal abuse").

While the same constitutional standards do not always apply in public schools as on public streets, we cannot afford students less constitutional protection simply because their peers might illegally express disagreement through violence instead of reason. If the people, acting through a legislative assembly, may not proscribe certain speech, neither may they do so acting individually as criminals. Principals have the duty to maintain order in public schools, but they may not do so while turning a blind eye to basic notions of right and wrong.

Thus, under the Tinker-Burnside doctrine, we are required to reject this portion of Ferrell, as well. Even if Allred were correct in fearing that other students may react inappropriately or illegally, such reactions do not justify suppression of Holloman's expression. Holloman's expression was constitutionally protected because the record reveals no way in which he "materially and substantially interfere[d] with the requirements of appropriate discipline in the operation of the school." Burnside, 363 F.2d at 749.

c.

On appeal, Allred repeatedly emphasizes that Holloman was punished not for his act, but for disobeying directions from her and Harland as to the only permissible ways to salute the flag. By raising his fist in the air the next day, Holloman contravened these instructions. Consequently, Allred argues, Holloman was punished for insubordination for violating these orders, rather than for exercising a First Amendment right.

Although Holloman failed to salute the flag in a manner amenable to Allred, "the protections of the First Amendment do not extend solely to speech which is well-mannered and attentive to the preferences of others." Sabel v. Stynchcombe, 746 F.2d 728, 731 (11th Cir.1984). As discussed throughout this Subsection, Holloman had the constitutional right to raise his fist during the Pledge of Allegiance so long as he did not disrupt the educational process or the class in any real way.

Allred could not prevent Holloman from exercising a constitutional right simply by telling him not to do so. School officials may not punish indirectly, through the guise of insubordination, what they may not punish directly. See Rutland, 316 F.Supp. at 358 (ordering reinstatement of public high school teacher who was dismissed in violation of the First Amendment for assigning a short story administrators found objectionable because "plaintiff's `insubordination' was not insubordination in any sense and was not, in reality, a reason for the School Board's action"); Dickey v. Alabama State Bd. of Educ., 273 F.Supp. 613, 618 (M.D.Ala.1967) ("The attempt to characterize Dickey's conduct, and the basis for their action in expelling him, as `insubordination' requiring rather severe disciplinary action, does not disguise the basic fact that Dickey was expelled from Troy State College for exercising his constitutionally guaranteed right of academic and/or political expression."), vacated as moot sub nom. Troy State Univ. v. Dickey, 402 F.2d 515 (5th Cir.1968). Allred lacked the right to proscribe his behavior in the first place; neither she nor Harland could punish Holloman for violating a directive that was a constitutional nullity.

Consequently, we have no choice but to conclude as a matter of law that Holloman successfully articulated a violation of his First Amendment right to freedom of expression by Harland and Allred. We now must assess whether these rights were "clearly established" at the time of the incidents.

This circuit was recently chastised by the Supreme Court for taking an unwarrantedly narrow view of the circumstances in which public officials can be held responsible for their constitutional violations. See Vaughan v. Cox, 343 F.3d 1323, 1332 (11th Cir.2003) ("[T]he Supreme Court in Hope cautioned that we should not be unduly rigid in requiring factual similarity between prior cases and the case under consideration."). The law of this circuit used to be that a government actor could be denied qualified immunity only for acts that are "so obviously wrong, in light of the pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing." Lassiter v. Alabama A. & M. Univ., 28 F.3d 1146, 1149 (11th Cir.1994) (en banc). The Supreme Court, specifically citing Lassiter (along with a handful of other Eleventh Circuit cases), held that "[t]his rigid gloss in the qualified immunity standard... is not consistent with [the Supreme Court's] cases." Hope v. Pelzer, 536 U.S. 730, 739 & n. 9, 122 S.Ct. 2508, 2515 & n. 9, 153 L.Ed.2d 666 (2002).

While officials must have fair warning that their acts are unconstitutional, there need not be a case "on all fours," with materially identical facts, before we will allow suits against them. A principle of constitutional law can be "clearly established" even if there are "notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct at issue violated constitutional rights." United States v. Lanier, 520 U.S. 259, 269, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1997); Hope, 536 U.S. at 741, 122 S.Ct. at 2516 ("[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances. Indeed, in Lanier, we expressly rejected a requirement that previous cases be `fundamentally similar.'").

In our pre-Hope jurisprudence, we held that

[g]eneral rules, propositions, or abstractions ... do not determine qualified immunity. Instead, the circumstances that confronted the government actor must have been materially similar to prior precedent to constitute clearly established law because public officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases. For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.

Wood v. City of Lakeland, 203 F.3d 1288, 1291-92 (11th Cir.2000) (citations and quotations omitted).

As discussed above, Hope reminds us that we need no longer focus on whether the facts of a case are "materially similar to prior precedent." Moreover, Hope emphasized that "general statements of the law are not inherently incapable of giving fair and clear warning ... [A] constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful." 536 U.S. at 741, 122 S.Ct. at 2516 (quotations omitted). Thus, we do not just compare the facts of an instant case to prior cases to determine if a right is "clearly established;" we also assess whether the facts of the instant case fall within statements of general principle from our precedents. See Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir.2002) ("When looking at case law, some broad statements of principle in case law are not tied to particularized facts and can clearly establish law applicable in the future to different sets of detailed facts.").

Hope seems to have abrogated many of the other standards articulated in Wood, as well. For example, Wood's requirement that a particular conclusion must be "dictate[d], that is, truly compel[led]" intimates a level of absolute crystal-clear certainty about precedent that forms no part of Hope's requirements. To the degree there exists a conflict between Hope and our earlier cases, we are, of course, bound to follow the Supreme Court's intervening ruling. See Lufkin v. McCallum, 956 F.2d 1104, 1107 (11th Cir.1992). Since Hope, many of our cases have applied its standard to the exclusion of our earlier, more rigorous doctrinal tests. See, e.g., Holmes v. Kucynda, 321 F.3d 1069, 1077-78 (11th Cir.2003); Dahl v. Holley, 312 F.3d 1228, 1233 (11th Cir.2002); Weaver v. Bonner, 309 F.3d 1312, 1324 (11th Cir.2002). Hope emphasizes that, notwithstanding more stringent standards articulated in some of our earlier cases, "the salient question ... is whether the state of the law [at the time of the events in question] gave respondents fair warning that their alleged treatment of [the plaintiff] was unconstitutional." 536 U.S. at 741, 122 S.Ct. at 2516.

Turning to Holloman's claims, we find that, as of May 16, 2000, the Tinker-Burnside standard was clearly established and sufficiently specific as to give the defendants "fair warning" that their conduct was constitutionally prohibited. We do not find it unreasonable to expect the defendants — who holds themselves out as educators — to be able to apply such a standard, notwithstanding the lack of a case with material factual similarities. While we have not traditionally called upon government officials to be "creative or imaginative" in determining the scope of constitutional rights, see Adams v. St. Lucie Cty. Sheriff's Dep't, 962 F.2d 1563, 1575 (11th Cir.1992) (Edmondson, J., dissenting), neither are they free of the responsibility to put forth at least some mental effort in applying a reasonably well-defined doctrinal test to a particular situation. Our precedents would be of little value if government officials were free to disregard fairly specific statements of principle they contain and focus their attention solely on the particular factual scenarios in which they arose.

The Tinker-Burnside test calls for teachers to assess two factors: (1) whether a student is engaged in expression (either pure speech or expressive conduct) and (2) whether the expression is having a non-negligible disruptive effect, or is likely to have such an effect, on classroom order or the educational process. The first factor is quite easy to apply; the test for determining whether an act constitutes expressive conduct is whether the "reasonable person" would perceive it as such. See Spence, 418 U.S. at 410-11, 94 S.Ct. at 2730. Consequently, a teacher or principal should have no problem determining whether a student is engaged in expression. Indeed, given the myriad forms of expression, we should be hesitant about requiring that a means of expression be the subject of a previous case before offering the speaker full § 1983 protection.

The second factor should also be quite effortless for an educator to apply. A teacher or principal should be able to instantly recognize whether a student is disrupting class, and it should not be too hard to determine whether a student's activities are likely to have such an effect. Consequently, we do not find the Tinker-Burnside test to be of such an unreasonable level of generality that Allred and Harland could not have been expected to apply it in this case. Cf. Thomas v. Roberts, 323 F.3d 950 (11th Cir.2003) ("[W]here the applicable legal standard is a highly general one, such as `reasonableness,' preexisting caselaw that has applied general law to specific circumstances will almost always be necessary to draw a line that is capable of giving fair and clear notice that an official's conduct will violate federal law."). Because this standard is "clearly established," is not at an unreasonable high level of generality, and when applied to the facts of Holloman's case yields a fairly determinate result that should have been clear, Allred and Harland are not entitled to summary judgment on qualified immunity grounds against Holloman's Speech Clause claim concerning his right to affirmative expression. The Tinker-Burnside principle gave them "clear notice" that their conduct violated Holloman's constitutional rights; unlike the dissent, we believe that teachers are well equipped to "readily determine what conduct falls within" the Tinker-Burnside standard.

Indeed, Holloman's right to silently raise his fist during the Pledge of Allegiance would even be considered "clearly established" under Barnette. As discussed earlier, he clearly had the right to remain silent during the Pledge of Allegiance; we would be very reluctant to conclude that Holloman somehow shed the protection of the First Amendment simply by lifting his fist into the air while exercising this right. Allred and Harland are essentially asking us to distinguish, on constitutional grounds, between a student with his hands in his pockets or at his sides (like Hutto) and a student with his hand in the air. This is a hair we will not split; First Amendment protections are not lost that easily.

The dissent takes issue with the analysis in Subpart C, contending that Holloman's expression is unprotected because it "is the sort of activity that competes with the teacher for the students' attention." For the reasons discussed in the previous Subpart, we do not believe that Holloman's activity, which had virtually no impact on the class, was sufficient under Tinker and Burnside to fall outside the realm of constitutional protection. However, even if we (or a jury, based on the facts as they unfold at trial) were to find that Holloman's expression did "materially and substantially interfere with the requirements of appropriate discipline," Holloman would still be able to articulate a violation of his First Amendment rights.

One of the most egregious types of First Amendment violations is viewpoint-based discrimination. See Chandler v. James, 180 F.3d 1254, 1265 (11th Cir.1999) (noting that "viewpoint discrimination[][is] the most egregious form of content-based censorship"); Searcey v. Harris, 888 F.2d 1314, 1324 (11th Cir.1989) ("The prohibition against viewpoint discrimination is firmly embedded in first amendment analysis."). Government actors may not discriminate against speakers based on viewpoint, even in places or under circumstances where people do not have a constitutional right to speak in the first place. See Uptown Pawn & Jewelry, Inc. v. City of Hollywood, 337 F.3d 1275, 1277 (11th Cir.2003) ("[R]estrictions on nonpublic forums need only be reasonable and not viewpoint discriminatory."); Adler v. Duval County Sch. Bd., 206 F.3d 1070, 1081 (11th Cir.2000) ("The Supreme Court has consistently held that in nonpublic fora the government may not engage in viewpoint discrimination."). We have expressly recognized that this fundamental prohibition against viewpoint-based discrimination extends to public schoolchildren, as well, stating, "[W]e do not believe [that Supreme Court precedent] offers any justification for allowing educators to discriminate based on viewpoint.... Without more explicit direction, we will continue to require school officials to make decisions relating to speech which are viewpoint neutral." Searcey, 888 F.2d at 1325. Consequently, even if Holloman did not have the right to express himself in the manner he did, his rights were still violated if he was punished because Allred disagreed or was offended by what he said.

This theory was most clearly applied in R.A.V. v. St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). That case involved an ordinance which made it a crime to place a "burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." Id. at 380, 112 S.Ct. at 2541. The Supreme Court accepted the Minnesota Supreme Court's construction of the statute as prohibiting only "fighting words," a constitutionally proscribable category of expression. Id. at 380-81, 112 S.Ct. at 2541. The Court nevertheless invalidated the statute because, in the course of prohibiting conduct the state had the right to criminalize, it made a viewpoint-based distinction.

The Court acknowledged that people do not have the First Amendment right to use fighting words. Id. at 382, 112 S.Ct. at 2542-43. The Court emphasized, however, "What [that] means is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.) — not ... that they can be made the vehicles for content discrimination unrelated to their distinctively proscribable content." Id. at 383, 112 S.Ct. at 2543. Thus,

a particular instance of speech can be proscribable on the basis of one feature (e.g. obscenity) but not on the basis of another (e.g. opposition to the city government).... [Moreover,] the power to proscribe particular speech on the basis of a noncontent element (e.g. noise) does not entail the power to proscribe the same speech on the basis of a content element....

Id. at 385-86, 112 S.Ct. at 2544. Applying this standard, the Court held that the ordinance was unconstitutional because "[d]isplays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics." Id. at 391, 112 S.Ct. at 2547. Moreover, the ordinance went beyond general content discrimination "to actual viewpoint discrimination.... `[F]ighting words' that do not themselves invoke race, color, creed, religion, or gender ... would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers' opponents." Id. at 391, 112 S.Ct. at 2547-48.

Thus, even though Minneapolis had the unquestioned power to prohibit fighting words, it could not draw viewpoint based distinctions by targeting certain fighting words because of the repugnant message they conveyed. Applying this principle to the instant case, it becomes clear why Allred may potentially be held liable under the First Amendment even if Holloman was not engaging in constitutionally protected speech. Although Allred has the authority under the Tinker-Burnside standard to proscribe student expression that materially and substantially disrupts the class, she may not punish such expression based on the fact that she disagrees with it. Even when engaging in speech that is not directly constitutionally protected, Holloman still has the First Amendment right to be free from viewpoint discrimination.

The record, interpreted in the light most favorable to Holloman, more than amply supports his argument that he was punished for the substance of his unpatriotic views rather than an alleged disruption of class. Allred admitted in her deposition that when Hutto simply refused to recite the pledge of allegiance, she was "hurt" and "[v]ery disappointed in him" because "[h]e was a leader of the class .... [and] looked up to a great deal." Moreover, she because of "the freedoms we enjoy in this country," she couldn't understand how he wouldn't want to pledge. She emphasized, "It broke my heart, you know." Given that Hutto was chastised and ultimately forced by Harland to apologize simply for remaining silent during the flag salute, a jury could reasonably conclude that Allred's punishment of Holloman was based on similar motivations.

When Holloman allegedly asked Allred about the ways in which students were permitted to salute the flag, she told him that he could either do so with his hand over his heart or in a military-type salute. She explained, "In our country, the normal way is putting your hand over your heart. That's the way you see everyone do it, the ball players on TV." Any other way is prohibited because it "is not the normal acceptance [sic] of saying the pledge in our country." She considered what he did "disrespectful" because "[i]t's going against the normal procedure behavior [sic] of pledging to our American flag." Holloman's gesture is "not an acceptable behavior in this country." She emphasized, "You just salute the way Americans salute and pledge. That's a given." Although she maintained that this disrespect to the flag wasn't the reason she actually punished Holloman, these statements would allow a jury to conclude that her actions were motivated by her disagreement with and offense at the unpatriotic views expressed by Holloman's gesture.

Harland expressed a similar attitude. According to Vice Principal Jason Adkins, Harland was "angry and disappointed and upset" that Hutto declined to salute the American flag. Harland threatened to rescind his recommendation of Hutto to the Air Force Academy. Again, such views toward the Pledge of Allegiance support Holloman's claim that he was punished for the offensive viewpoint he expressed.

Especially when considered in light of the virtually nonexistent evidence that Holloman disrupted the class in any way (discussed in the previous Subpart), the record virtually compels the conclusion (for summary judgment purposes) that both the fact and extent of his punishment stemmed from the fact that Allred and Harland found his ostensibly unpatriotic views repugnant and offensive. Indeed, many of our cases have used evidence such as this to support a finding that a particular governmental act was motivated by unconstitutional viewpoint discrimination. See, e.g., Chandler v. Georgia Public Telecomm. Comm'n, 917 F.2d 486, 491-92 (11th Cir.1990) ("The transcript of the evidentiary hearing held by the district court is replete with statements by Dr. Cooper, the executive director of [the state agency], that [the agency] decided that the viewpoints of the Libertarians were less valuable than those of the Democrats and Republicans.").

As emphasized earlier, the evidence at trial may prove that Allred did not discipline Holloman because of his viewpoint, but for a legitimate reason. Interpreting the evidence in Holloman's favor for summary judgment purposes, however, we must conclude that her motive was discriminatory. Because Holloman had the right to be free from viewpoint discrimination, and that right was clearly established (both in general as well as in the public school context) under the precedents discussed above, we must deny Allred qualified immunity at this stage. As Justice Blackmun reminds us, "[I]f educators intentionally may eliminate all diversity of thought, the school will strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." Bd. of Educ. v. Pico, 457 U.S. 853, 879, 102 S.Ct. 2799, 2814, 73 L.Ed.2d 435 (1982) (Blackmun, J., concurring in part). Consequently, even if the dissent's contention (that Holloman's conduct is not protected under the Tinker-Burnside standard) is correct, Holloman's punishment would still have violated the First Amendment. Viewpoint discrimination is another First-Amendment avenue for recovery that Holloman is entitled to pursue at trial.

Having concluded that Allred and Harland are not entitled to summary judgment on qualified immunity grounds against any of the three ways in which Holloman can articulate Speech Clause claims against them, we now turn to his Establishment Clause claim against them.

Holloman claims that his rights under the Establishment Clause were violated by Allred's daily moment of silent prayer. The district court granted both Allred and Harland summary judgment against this claim. While Holloman's brief on appeal vigorously contests this ruling as it applies to Allred, it does not even mention whether Harland was entitled to qualified immunity on this claim. Consequently, we are forced to conclude that Holloman has abandoned his appeal regarding Harland's summary judgment on qualified immunity grounds against Holloman's Establishment Clause claim.9 We reverse the district court's grant of summary judgment on this claim to Allred, however.

As noted in Part II, the first step in assessing the viability of a qualified immunity defense is to determine whether the government official defendant was engaged in a "discretionary function" in performing the acts of which the plaintiff complains. This entails a two-step analysis: we begin by ascertaining whether the defendant was pursuing a job-related goal, and then examine whether the type of action in which she was engaging to further this goal was authorized.

We are willing to assume that Allred satisfies the first prong of this test because she was attempting to pursue the legitimate job-related function of fostering her students' character education by teaching compassion. She nevertheless fails the second prong of the "discretionary function" test because she was not pursuing this job-related goal through legitimate means that fell within her powers. While fostering character development and moral education were undoubtedly parts of Allred's official responsibilities, this does not automatically empower her to do anything within her judgment that furthers those goals; she cannot educate students at all costs.

Praying goes sufficiently beyond the range of activities normally performed by high school teachers and commonly accepted as part of their job as to fall outside the scope of Allred's official duties, even if she were using prayer as a means of achieving a job-related goal. It is not within the range of tools among which teachers are empowered to select in furtherance of their pedagogical duties.10 Prayer is a relatively sui generis activity. Put another way, even ignoring Holloman's Establishment Clause claims, praying still would not be part of a public school teacher's responsibilities or duties.

We emphasize that, at this juncture, we are not denying Allred summary judgment on qualified immunity grounds against this claim because we feel her acts violated the Establishment Clause. Instead, we are holding her ineligible for qualified immunity as a matter of law because she failed to establish that her act — this type of act — fell within her duties or powers as a teacher. The fact that Allred is a teacher does not mean that anything she says or does in front of a classroom necessarily constitutes an exercise of her discretionary powers or is a job-related function. Prayer is distinct from the type of civil virtue and secular moralism Alabama sought to promote through its character education program. Consequently, Allred is not even potentially entitled to summary judgment on qualified immunity grounds against Holloman's Establishment Clause claim.

The dissent takes issue with this conclusion, concluding that school prayer is a type of act that falls within the scope of a public school teacher's discretionary authority. It argues, "It was certainly within the scope of a public high school teacher's authority to lead students in prayer prior to 1962, when the Court ruled that teacher led prayer in public schools is a violation of the Establishment Clause." This analysis is beside the point. In determining whether a public official is authorized to perform a certain type of act (abstracting away from its unconstitutional aspects), we look to the scope of their authority as it exists today, and do not inquire as to what the forty-year old root causes of the present-day situation may have been. Prayer is not a type of act that falls within a reasonably specific category of actions that teachers are authorized to perform; there is no easy way of abstracting away its unconstitutional aspects to arrive at a type of behavior that falls within teachers' discretionary authority.

Moreover, we decline to embark on a sociological inquiry — one for which this court is singularly unequ