Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—5th Cir.: Principal not immune from teacher’s First Amendment claims over pre-attendance prayer ban, (Mar 11, 2026)

By Marjorie Johnson, J.D.

If the principal imposed a categorical ban on teacher prayer wherever students might see it, as the teacher alleged, he violated clearly established law.

A junior high school principal, who allegedly banned a teacher and her colleagues from praying on school property anywhere students could see them, was not entitled to qualified immunity from the teacher’s free speech and free exercise claims since the Supreme Court’s decision in Kennedy v. Bremerton had already clearly established that such visibility-based restrictions are unconstitutional, the Fifth Circuit ruled in affirming that portion of the district court’s opinion below. However, because the teacher failed to allege any equal protection violation by the principal individually, he was entitled to qualified immunity as to that claim that claim, and the district court’s contrary ruling was reversed (Barber v. Rounds, No. 25-20125 (5th Cir. Mar. 9, 2026)).

Pre-attendance prayer event. The longtime teacher regularly prayed with her colleagues before school began. In September 2023, the school’s Fellowship of Christian Athletes (FCA) club planned to host its annual “See You at the Pole” (SYATP) event. During the event, students across the country gather to pray together, usually before school at their school’s flagpole. As she had done for the prior three years, the teacher emailed staff inviting them to join her in prayer by the flagpole at 8:00 a.m. on the morning of the event, prior to the student group’s arrival.

Principal bars attendance. The principal responded with two emails. First, in a staff-wide message, he stated that district policy prohibited staff from “praying with or in the presence of students.” Second, in a separate email directly to the teacher, he reiterated that “employees CANNOT pray with or in the presence of students.” And he clarified that although her proposed prayer gathering would take place before the school day, she would still be “on campus” and “visible to students in [her] role as an employee.”

In response, the teacher stated that her invitation was only for staff before students arrive, just like she and other staff had done for the past three years. The principal replied that, even if no students were present at the pole, “[b]y 8:00 AM students are generally waiting at the front entry of the building,” and their presence on campus meant that teachers’ prayers at the pole would result in “a violation of school policies.” She and a few colleagues proceeded to pray near the flagpole on the morning of the event anyway. The principal stopped them, called them into a conference room, and reiterated that teachers may not pray where students “might see” or “be influenced by” their conduct—even if such conduct occurred “when the teachers were not on school time.”

Lawsuit. The teacher filed suit against the school district and the principal, in his individual and official capacities, alleging Section 1983 claims of violations of her constitutional rights under the First Amendment (free speech and free exercise) and Fourteenth Amendment (due process and equal protection) as well as violations of the Texas Constitution and the Texas Religious Freedom Restoration Act. She also moved for a preliminary injunction, which the court denied based on her failure to show irreparable harm.

The defendants then moved to dismiss, and the principal asserted qualified immunity regarding her federal constitutional claims against him individually. The court denied his bid for qualified immunity on her First Amendment free speech and free exercise claims, concluding that she plausibly alleged that the principal imposed a categorical ban on visible religious expression, and that the Supreme Court’s decision in Kennedy clearly established the unlawfulness of such restrictions. The court also found that she stated a plausible Fourteenth Amendment equal protection claim and that the principal was not entitled to qualified immunity but dismissed her due process claim. The court then stayed the case pending the principal’s interlocutory appeal regarding the denial of qualified immunity.

Blanket prohibition. At the outset, the Fifth Circuit addressed how broadly it should read the teacher’s allegations. She asserted that her complaint alleged a blanket prohibition by the principal on teachers engaging in any prayer that students might observe—regardless of whether the prayer was connected to a student-led event. Conversely, the principal argued that his directives were limited to ensuring teachers did not participate in the SYATP gathering. Agreeing with the teacher, the court concluded that, taken as true, her “allegations describe a categorical, visibility-based prohibition on private religious expression and exercise by teachers, not merely a context-specific restriction tied to student group religious activities or 2023’s SYATP event.”

Constitutional violation alleged. The Fifth Circuit next found that the first prong of the qualified immunity inquiry as to her free speech and free exercise claims were met since she plausibly alleged that the principal’s conduct violated her First Amendment rights. In particular, she claimed that he told her that she could not pray “with or in the presence of students” and that she was prohibited from praying in any location where she would be “visible to students,” even before the school day and even outside the SYATP event. He also allegedly directed teachers not to pray where students “might see” or “be influenced by” their conduct.

“This sort of visibility-based restriction of religious exercise implicates both the Free Speech Clause and Free Exercise Clause,” stated the appeals court, and the principles set forth in Kennedy “apply with equal force here.” In Kennedy, the Supreme Court held that a school district’s actions in prohibiting a football coach from saying his own quiet, on-field postgame prayers violated the Free Speech Clause and Free Exercise Clause, emphasizing that he prayed during a time when he was free from official “duties,” even though students may have been present on the field, or nearby. Similarly, here, the teacher sought to engage in personal prayer outside instructional time, and the school district imposed categorical restrictions on her religious expression based solely on the possibility that students might be “in the vicinity.” Kennedy thus supported the conclusion that the teacher’s complaint plausibly described conduct that, if proven, would violate her First Amendment rights.

Clearly established. The First Amendment rights at issue were also clearly established when the principal’s challenged conduct occurred since Kennedy, which was decided before the conduct alleged here, “clearly established that school officials may not impose categorical, visibility-based restrictions on an employee’s private religious expression or exercise outside official duties,” the Fifth Circuit explained. The Court’s reasoning was not limited to the precise facts of the case, but “more broadly rejected the premise that a school employee’s private religious expression becomes constitutionally suspect merely because students might observe it.”

Equal Access Act inapplicable. The Fifth Circuit rejected the principal’s attempt to invoke the Equal Access Act to defend his SYATP directives to the teacher and faculty more generally. The Act prohibits a public secondary school that maintains a “limited open forum” from denying student religious groups access to school facilities otherwise available to noncurricular clubs and allows school employees to be present at student meetings only in a nonparticipatory capacity. Because she “plausibly alleges a categorical restriction on [her] private religious activity, rather than regulation of staff involvement in student religious activities, the Equal Access Act does not alter the qualified immunity analysis at this stage of the proceedings.”

Immune from equal protection claim. However, the district court erred in concluding that the principal was not entitled to qualified immunity from the teacher’s Fourteenth Amendment equal protection claim in which she alleged that the school district treated her religious expression less favorably than comparable expressive activity by other staff. Significantly, she attributed disparate treatment to the district generally and did not allege that the principal personally engaged in conduct that treated her teacher differently from any similarly situated employee.

The case is No. 25-20125.

Judge: Wilson, C.

Attorneys: Nathan Jeremiah Moelker (American Center for Law & Justice) for Staci Barber. Christopher Blewer Gilbert (Thompson & Horton) for Bryan Scott Rounds.

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