Carts, Horses, and Privileges

The interlocutory appeal in Arnold v. Barbers Hill ISD arose from a challenge to a school district’s hair-code policy. The plaintiffs noticed depositions of the superintendent and a former board president to probe the Board’s reasons for adopting and enforcing the policy. The district asked the court to bar questions about lawmakers’ “subjective intentions, motivations, [and] thought processes” by invoking legislative privilege on their behalf.

The Fifth Circuit held that legislative privilege is “personal to the legislator,” and observed that no individual privilege holder had actually invoked it or otherwise participated in the proceedings. Therefore, the governmental entity could not assert it on their behalf. As the Court concluded: “This case’s cart precedes its horse.” No. 23-20256, Nov. 3, 2025.