The Fifth Circuit on Wednesday issued its latest ruling in the infamous “Candy Cane” case, Morgan v. Swanson, Dkt. No. 13-40433 (5th Circuit April 2, 2014). In this published opinion, the Fifth Circuit affirms the trial court’s grant of qualified immunity to the Plano ISD principal who did not allow the student’s father to distribute religious material to other adults at his son’s in-class winter party. In a nutshell, the case addresses the qualified immunity standard and whether a claim is “clearly established.” It also is important in that it may now set a precedent for future cases, so that principals can be held liable under the First Amendment for prohibiting the distribution of religious material by a parent, under the facts presented in this case.
The lawsuit alleged that in December of 2003, Doug Morgan attended an in-class winter party with his son, Jonathan. As part of the traditional student gift exchange, Jonathan intended to distribute candy canes bearing a religious message. Principal Lynn Swanson, however, told the Morgans that religious material would not be permitted in the third-grade classroom. After confirming this policy with district administrators, Swanson suggested that they place the materials on an “information table” where other families could pick up the material and take it home. She later announced that all materials—religious or otherwise—were prohibited from the classroom, but the Morgans noticed that the other students were allowed to exchange gifts.
The Morgans filed suit under 42 U.S.C. § 1983, alleging a violation of Jonathan’s First Amendment rights. The Fifth Circuit, sitting en banc, first held that Principal Swanson unconstitutionally discriminated on the basis of viewpoint when she did not allow Jonathan to distribute his gifts. The Court, nevertheless, granted Swanson qualified immunity, finding relevant law too “abstruse” and “complicated” for Swanson to have known how to handle the situation.
Morgan, the parent, here asserted that he, too, experienced viewpoint discrimination when Principal Swanson told him not to distribute the religious material to other consenting adults in the classroom. He did not allege that any other parents were permitted to exchange gifts, nor did he challenge the school’s policy, so the factual foundation of his claim is unclear. The trial court dismissed the claim after finding that Swanson was entitled to qualified immunity.
The Fifth Circuit affirmed the ruling and observed that “educators are entitled to immunity unless ‘no reasonable official’ would have deemed the disputed conduct constitutional.” The Court’s review of existing law revealed that “educators are nearly always immune from liability arising out of First-Amendment disputes. The rare exceptions involve scenarios in which there exists a precedent precisely on point.” In this case, there was no legal authority that clearly established the rights asserted by the parent.
Morgan argued that his right to distribute religious material was clearly established because “regardless of forum, viewpoint discrimination regarding private speech is unconstitutional.” According to the Court, although the assertion was generally true, “such a broad generalization is exactly the kind of proposition that will not suffice for the purposes of qualified immunity analysis, as it simply does not provide the official with any sense of what is permissible under a certain set of facts.”
In an effort to establish a “clearly established right,” Morgan pointed to Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330 (5th Cir. 2001), which dealt with after-school meetings whose express purpose was to allow adults to discuss mathematics instruction. In that case, the Fifth Circuit held that, regardless of whether the meetings were properly classified as public forum or limited public forum, school officials could not prohibit the plaintiffs from distributing material related to certain curriculum options. In response to Morgan’s argument, the Court stated:
It is difficult to imagine how Chiu establishes a specific rule applicable to this case. The present case does not involve an individual trying to contribute relevant materials to a public forum dedicated to adult dialogue. Instead, a parent asked whether he could distribute religious material during a classroom activity. So while Chiu may indeed be relevant in discerning the nature and extent of Morgan’s rights in the classroom, the case does not itself establish those rights, and its radically different factual context renders Chiu incapable of providing any meaningful guidance to an educator trying to handle First Amendment concerns arising out of a third-grade party.
The Fifth Circuit, therefore, held that Morgan had not established a “clearly established right” to distribute the materials under these facts presented here and, therefore, the principal was entitled to qualified immunity. It’s unclear from this opinion whether the principal’s actions amount to a constitutional violation. The Fifth Circuit didn’t conduct that analysis. Instead, the opinion addresses only whether any such right was “clearly established.”
The concurring opinion by Edith Brown Clement suggests that the principal’s actions did violate the parent’s constitutional rights, even though that right may not have been “clearly established” at the time for the purposes of the qualified immunity analysis. She stated:
If the facts of Morgan were repeated in another case today, the outcome would be different, and rightly so. Ours was a nation founded by those who sought a place where they could proclaim their faith freely. 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.
Does this case set a precedent? If a principal allows parents to distribute non-religious materials at school, but prohibits the distribution of religious materials, a strong argument could be made that the aggrieved parent now has a “clearly established” First Amendment right to distribute the religious materials. Look out for legal commentary on this issue. The full opinion can be found here: https://www.ca5.uscourts.gov/opinions%5Cpub%5C13/13-40433-CV0.pdf
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