Should two elementary school principals be subject to suit after they prevented students from distributing religious-themed gifts in schools? That was the main focus of today’s argument before the full 5th U.S. Circuit Court of Appeals in Doug Morgan, et al. v. Lynn Swanson, et al. The case also contains an issue of first impression for the 5th Circuit: Does the free-speech clause of the First Amendment protect student-to-student distribution of religious, noncurricular materials in public elementary schools? The full court is hearing the case on interlocutory appeal after the trial court rejected the defendant principals’ motion to dismiss the suit based on qualified immunity and a 5th Circuit panel affirmed the trial court last year. Students and their parents originally filed the suit in a U.S. District Court in the Eastern District of Texas after they were told the children could not distribute gifts at a holiday party, including candy cane-shaped pens at an on-campus winter party. Attached to the pens were laminated cards titled "Legend of the Candy Cane" and text discussing the "Christian origin of candy canes," according to the plaintiffs' brief to the three-judge 5th Circuit panel. Tom Brandt (pictured, left), a partner in Dallas’ Fanning Harper Martinson Brandt & Kutchin who represents the principals, argued to the 5th Circuit that his clients did what was reasonable: They both followed Plano Independent School District policy, which he says prevented the distribution of religious-themed gifts. “The reasonable thing to do in that situation is follow the policy . . . ” Brandt argued. “And as a result, these two public school educators have been stripped of their immunity.” Brandt also argued that the law is not clear on how First Amendment speech rights are to be applied to elementary school students. Paul Clement (pictured, right), a partner in Washington D.C.’s Bancroft and a former U.S. solicitor general who represents the plaintiffs in the case, told the 5th Circuit that the litigation involves a “blatant case of religious viewpoint discrimination.” Clement argued, “Viewpoint discrimination, just because it’s religious speech, is strictly verboten,” Because the plaintiff children were allowed to distribute some nonreligious themed gifts but not religious gifts, “that conveys a message of hostility” toward religion, he argued. The case has attracted more than a dozen amicus briefs and letters from school, religious and legal organizations. One of the amici, Marie Barnett Snodgrass, was given a portion of the plaintiffs’ time to argue before the 5th Circuit. Snodgrass was an original plaintiff in West Virginia v. Barnette, a landmark 1943 U.S. Supreme Court decision that held that elementary school students have First Amendment rights — in Barnett’s case, she faced expulsion from school because she refused to salute the American flag, a symbolic gesture that goes against the tenets of her Jehovah’s Witness faith. Barnett sat in the audience as Baylor University President Ken Starr argued for her. Starr argued that there’s a good reason the 5th Circuit is sitting en banc to hear the argument: “It’s to completely and irrevocably establish that elementary school students have First Amendment rights.”
--- John Council
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