A hearing is scheduled Monday before the 5th U.S. Circuit Court of Appeals in New Orleans that could determine if students in elementary schools have the protections of the First Amendment to the U.S. Constitution.
The case arose in the Plano Independent School District in Texas where Thomas Elementary School Principal Lynn Swanson and Rasor Elementary School Principal Jackie Bomchill were sued for restricting student speech when it referenced “God” or “Jesus.”
According to the Liberty Institute, in the first incident, officials banning 8-year-old Jonathan Morgan from handing out candy canes with Jesus’ name on them to classmates at a school party.
“Then they confiscated a little girl’s pencils after school because they mentioned ‘God,’” the Institute reported.
But that’s not all, the group said.
“They even banned an entire classroom from writing ‘Merry Christmas’ on cards to our troops serving in Iraq.”
The dispute went to district court then to a three-judge panel of the 5th Circuit where school officials’ efforts to have the complaint rejected because of their “immunity” failed.
Now the appeals court has agreed to an en banc hearing in which 17 judges will listen to arguments and decide the dispute.
The school officials are arguing “that the First Amendment does not apply to elementary school students,” explains the appeal brief submitted by Liberty Institute.
They are claiming that the case is a dispute of “first impression,” – that is, the first time the question has been raised. Swanson and Bomchill are urging “that the First Amendment does not apply to elementary school students.”
“According to school officials, ‘neither the Supreme Court nor this Court has ever extended First Amendment ‘freedom of speech’ protection to the distribution of non-curricular materials in public elementary schools,’” the brief explains.
Liberty Institute asserts that “the First Amendment is not implicated by restrictions on student-to-student distribution of non-curricular materials by elementary school students to their classmates.”
But Kelly Shackelford, the president and CEO of Liberty Institute, told WND the fundamental question in the disagreement is whether the appeals court will “strip away the First Amendment rights of kids and their parents in the schools.”
“This is really serious, very dangerous,” he said, noting it would be the highest level for such a decision in the nation, short only a ruling from the U.S. Supreme Court.
“This is chilling. What this means if they have no First Amendment rights is that they have no right to have a viewpoint different from the government,” he said.
“If their parents wanted to protect them from punishment because they have a different view … they have no right to even protect them,” he said.
Shackleford said the school officials’ argument essentially is: “Let’s say we did engage in religious discrimination. We can do it.”
“If they win this case, they could silence 41 million American school kids and their parents,” the Institute explained.
Shackelford sees the possibility of a slippery slope: If an elementary school student has no First Amendment rights, what about a middle school or junior high student. Then what about a high school student. And what about adults, too?
He said a friend-of-the-court brief filed by the Association for Retarded Citizens noted that such deprivation of rights theoretically could be applied to an adult whose mental capacity would be adjudged to be that of a student-age child.
“They saw the implications immediately even for adults,” he said.
“This would be a massive transfer of power from citizens and students and their parents to the government. The government would decide whether students have those rights.”
But he said the Constitution lacks any statement “that those rights don’t come into existence until the government approves.”
“All citizens have those protections,” he said.
A message left by WND with the school district seeking comment did not generate a response.
But a lawyer for the school district, Charles Crawford, later contacted WND and said the parents and students apparently decided to “stretch the truth” of their complaints about a crackdown on references to “God” and “Jesus.”
He said the district “has not taken the position that children do not have rights,” but he also said those “rights” are not “clearly established.” He said the principals should be protected by qualified immunity.
Shackelford said there is reason for alarm because the 5th Circuit’s panel had decided in favor of the students, and the full panel of the court now is being convened, a rare occurrence in itself.
He said generally such en banc hearings are held only when there is major disagreement with the outcome from the panel’s ruling.
But he said Paul Clement and Ken Starr, both former solicitors general for the United States government, are arguing on the side of the students on Monday.
“If you have kids, grandkids, or if you don’t, do you want future kids to be told they have no right to respectfully and in a nondisruptive manner express their opinions, unless their views agree with the government?” he asked.
“What have we just created for our future citizenry?”
The organization has set up a special FirstAmendmentFreedoms.LibertyInstitute.org website to document the case and its arguments.
He said he is pleading with Christian organizations and groups to be in prayer this weekend over the arguments and the outcome.
According to the pleading, “Whatever confusion may exist about student speech and the Religion Clauses, the confusion does not extend to the fundamental principle that school officials may not discriminate against student speech solely because it expresses a religious viewpoint.”
It explains school officials, in this case Bomchill, while allowing other students to hand out essentially whatever they chose, banned a student, Stephanie, from handing to her friends two pencils – one that said “moon” and another that said, “Jesus loves me this I know for the Bible tells me so.”
“Stephanie’s mother was unable to secure a meeting with Bomchill before the party. She thus arrived early on the day of the party and went to Bomchill’s office with the tray of brownies, each individual wrapped with two pencils. … The head of security handed Stephanie’s mother a letter that erroneously alleged that she had distributed material to students on school property. The letter warned that ‘police’ involvement would follow if she failed to submit material for pre-clearance or leave school grounds when asked,” said the brief.
“Bomchill then repeated the accusations and stated that Stephanie would be in ‘trouble’ if any more ‘religious’ material were distributed to her friends and classmates. … After Stephanie’s mother left, two police cars pulled her over. …”
“Indeed, Swanson and Bomchill seemingly permitted schoolchildren to express their views without meaningful restriction from any conceivable standpoint, except the standpoint of religious faith,” said the brief.
Continued the brief, “No case has ever suggested that school officials may selectively target student speech in elementary schools solely because it expresses a religious and no secular viewpoint.”