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A divided 5^th Circuit Court of Appeals recently granted qualified immunity to two Plano ISD principals while simultaneously acknowledging that their alleged actions violated the constitutional rights of their students.

At issue was a series of conflicts pertaining to the distribution of religious materials at school or school functions.  According to the plaintiffs, Principal Lynn Swanson forbade an elementary school student from handing out candy canes at a winter party; and Jackie Bomchill, another elementary school principal, kept a parent and her daughter from distributing pencils bearing the message: “Jesus loves me this I know for the Bible tells me so.”  The parents sued, and both a trial court and a three-judge panel of the Circuit Court found for the plaintiffs before the full court issued its decision: owing to a lack of clear, established precedent, they declined to be the first appellate court in the land to deny qualified immunity to administrators in such a case.

Constitutional law is one of Karla Schultz’s favorite subjects.  Prior to becoming an attorney in the Austin office of Walsh, Anderson, Brown, Gallegos & Green, she was the Federal Education Policy Manager of the National School Boards Association.  Before that, she was a public school teacher in Albuquerque.  “Students have a First Amendment right to engage in ‘private, non-disruptive, student-to-student speech,’” she said.  “It will be important for schools to be familiar with their policies regarding student free speech rights and student distribution of non-school material.”

Schultz pointed out that the Plano principals got in trouble by prohibiting the dissemination of materials based on the particular viewpoint represented.  “Neutral rules, applicable to everyone and to all types of speech, are O.K.,” she said, “but singling out one viewpoint and prohibiting it is not.  [This] means that it’s acceptable to prohibit students from handing out any gifts at a holiday party, but it’s not acceptable to prohibit them from only handing out gifts that express a religious view.”

So how did the seemingly benign candy cane get swept into the cultural firestorm?  Schultz explained that the candy canes in question were, in fact, candy cane pens and that each pen bore a legend that depicted the genesis of the holiday treat as one Christian candy maker’s attempt to symbolize the divinity of Christ, his treatment at the hand of the Romans, and his ultimate sacrifice.

Asked at what point proselytizing becomes harassment, Schultz responded, “Sometimes it’s a fine line, and the court decisions on this question are not entirely consistent, but generally the rule is that students’ private religious expression cannot interfere with school activities or the rights of others.  What one student sees as proselytizing will become harassment if it is coercing others to participate or if it becomes aggressive and threatening.”  Even here, however, caveats abound.  Schultz points out that the courts have said t-shirts with the message “Homosexuality is a Sin” are acceptable unless the school functions under a content-neutral policy banning all messages regardless of viewpoint, or unless the expression “is obviously directed at one student with whom the other student has a problematic history.”

To read more about the ramifications of Morgan v. Swanson, be sure to check out the November/December issue of Texas School Administrators’ Legal Digest.