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One would not typically associate the federal judicial system with Willy Wonka, but even that fictional Edison of sweets would be envious of the now eleven-year duration of one tenacious Christmas treat: the 5th Circuit Court of Appeals just can’t lick the “candy cane” case.

As written up before in this column, December 2003 proved to be merely the spring of the Morgan family’s discontent. Forbidden by an elementary school principal of Plano ISD from distributing candy canes at an in-class winter party because of the religious messages they conveyed, the Morgans first sued on behalf of the First Amendment rights of their eight-year-old.

Though the court ultimately agreed with the plaintiffs that the kid’s rights were violated, it also extended qualified immunity to Principal Lynn Swanson, who, it said, could not have been reasonably expected to suss out such “abstruse” law.

Next, the father sued on his own behalf, claiming that his rights had been violated by the principal’s so-called viewpoint discrimination.

To help illuminate this issue, I reached out to Jim Walsh, (aka Law Dawg) co-founder of the law firm of Walsh, Anderson, Gallegos, Green & Treviño, and managing editor of Texas School Administrators’ Legal Digest.

Walsh clarified that in the court’s en banc 2011 ruling, several key points were established:  1) viewpoint discrimination can be a violation of the 1st Amendment; 2) elementary-aged children have First Amendment rights; 3) the actions that Principal Swanson allegedly engaged in amounted to unconstitutional viewpoint discrimination when she limited the distribution of items containing a religious message; but 4) the law in this area is so dense and complicated that the principal was entitled to qualified immunity, thus protecting her from personal liability.

So why would the father suing on his own behalf lead to a different result?

“It didn’t,” said Walsh. “Again, the court held that the principal was entitled to qualified immunity because what she did was not ‘clearly established’ as being unconstitutional.”

The Law Dawg hastened to add, however, that qualified immunity is not automatic for school officials. “They will not be immune if they do something that is so clearly established as being unconstitutional that any principal would be expected to know that. School officials are presumed to be entitled to qualified immunity as long as there is no allegation of malice.” There was no allegation of malice in the candy cane incident, said Walsh. “The court noted that ‘school officials have a difficult job and a vitally important one’ and so the courts should give a high degree of deference to the educator’s professional judgment.”

The deep waters where religious speech, constitutional rights and public schooling converge are neither clear nor still. Having been in the business of representing Texas ISDs for more than half his life, Walsh observed that, indeed, they are particularly murky. “As further evidence of the murkiness,” he said, “this opinion was decided by a panel of three judges, and there are three opinions!”

Judges Benavides, Clement and Graves all joined in the main opinion, but Benavides added a concurring opinion to “further elaborate on the complex and unsettled aspects of this area of the law.”

Judge Clement, meanwhile, wrote a separate opinion concurring in the result–reluctantly. Said Walsh, “She felt that this case was really the same as the earlier one involving the students, and since the principal got qualified immunity in the student case, [she] should have it here, too. But Judge Clement made it clear that she didn’t like the result.”

Clement concluded her opinion with this statement: “Our forebears would be disappointed to see a country where students and parents were not permitted to share a simple gift at Christmas conveying a timeless message of love and redemption that no government should seek to suppress.”

Asked if we could finally put the candy cane back in the stocking, Walsh said “Nope. Eleven years and counting… Those elementary-aged kids must be in college now.”

Read more about the 5th Circuit’s decision in Morgan v. Swanson in the May issue of Texas School Administrators’ Legal Digest.

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