Dustin Williams, et al. v. Randall McElhaney

The decision below reflects a well-defined “split of authority,” joining the Second Circuit in Frierson v. Reinisch, 806 Fed.Appx. 54 (2020), as split from the Third, Blasi v. Pen Argyl Area School District, 512 Fed. Appx. 173 (2013); and Eighth, Wildman v. Marshalltown School District, 249 F.3d 768 (2001). This circuit split bars school employees from enforcing reasonable rules of participation in extracurricular athletics, to promote lessons of sportsmanship. Contrary to the Third and Eighth Circuits, the Sixth and Second hold enforcement as content-based retaliation violating the First Amendment. The court below also significantly departed from settled precedent concerning the “clearly established” prong of qualified immunity, articulating a new test, phrased for the first time in any Circuit as “low level of generality,” 81 F.4th at 554, which is incompatible with the requirement that the “violative nature of particular conduct is clearly established.” Mullenix v. Luna, 577 U.S. 7, 12 (2015). Applying its new test, the court ignored similar cases involving extracurricular activities, instead conflating this case with highly general cases in the general academic setting. The Question Presented is: Where a parent who has voluntarily agreed to be bound by team rules for their minor to play in an extracurricular academic setting including rules that a parent will not discuss playing time or position assignment, was it clearly established that a school employee violates the parent’s First Amendment rights by suspending the parent from attending games for one week for violation of those team rules, such that the right may be defined at a “low level of generality”