Candy cane case continues with Paul Clement representing old-school amici

When a three-judge panel of the 5th U.S. Circuit Court of Appeals hears arguments April 7 in Morgan, et al. v. Swanson, et al., a religious viewpoint discrimination case, a 67-year-old U.S. Supreme Court precedent will come up. Two sisters who were lead plaintiffs in litigation that resulted in the high court’s 1943 ruling in West Virginia State Board of Education v. Barnette – which held that school officials could not compel elementary schoolchildren who were Jehovah’s Witnesses to pledge allegiance to the U.S. flag – have filed an amici curiae brief in Morgan. The sisters’ attorney, former U.S. Solicitor General Paul Clement, now a partner in King & Spalding in Washington, D.C., will be among those arguing Morgan. The plaintiffs, parents of then-elementary schoolchildren, sued the Plano Independent School District (PISD) and a number of school officials in December 2004 in the U.S. District Court for the Eastern District of Texas in Sherman. In their original complaint they allege, among other things, that the defendants engaged in religious viewpoint discrimination. As alleged in the complaint, the defendants prohibited students from distributing the Christmas message of “The Legend of the Candy Cane” on school property. On Dec. 1, 2009, the 5th Circuit affirmed the district court’s decision upholding the PISD’s 2004 policy regulating when and where students can distribute religious materials. However, the 5th Circuit remanded to the district court for further consideration the plaintiffs’ claims regarding the constitutionality of the district’s 2004 policy, which was replaced in 2005. In the case to be argued next week, two school principals are appealing the district court’s denial of their motion to dismiss the suit against them based on qualified immunity. According to their brief to the 5th Circuit, the principals raise two issues on appeal: The First Amendment free-speech clause is not implicated by restrictions on elementary school student-to-student distribution of noncurricular materials or the law was not clearly established that the First Amendment free-speech clause is implicated. Plano-based Liberty Institute litigation director Hiram Sasser, an attorney representing the parents, says, “Since 1943, the law has been clearly established that elementary students have First Amendment rights.” The two sisters argue in their amici brief, filed in the 5th Circuit on Sept. 9, 2009, that “Barnette and its progeny establishes that school officials may not abridge students’ free speech rights merely because the speech occurs in an elementary school, much less because the speech is deemed religious.” Thomas Brandt, attorney for principals Lynn Swanson and Jackie Bomchill, says, “We’ve asserted qualified immunity because the law wasn’t clearly established.” Brandt, a shareholder in Fanning, Harper, Martinson, Brandt and Kutchin in Dallas, says he does not think Barnette applies in the Plano case. Brandt says Barnette was a compelled-speech case; the Supreme Court ruled that school officials could not force a student to say the Pledge of Allegiance. “That’s a very different situation,” he says. But Clement says, “Barnette is a square holding that the First Amendment does apply to elementary students.” His clients filed their amici brief because Swanson and Bomchill argue that the First Amendment does not apply to students in elementary school, Clement says. The 5th Circuit will hear the arguments in Morgan at Southern Methodist University Dedman School of Law.
-- Mary Alice Robbins