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Judges considering fight over banned candy canes

Jonathan Morgan, left, the boy banned from handing out candy cane pens to classmates when he was 8 years ago. Now 16, he is joined by Marie Barnett Snodgrass of the landmark Barnette v. West Virginia case.

A decision by school officials to bar a student from handing out candy-cane pens with a Christian message to classmates at a “winter” party arrived today before the full panel of judges of the 5th U.S. Circuit Court of Appeals, who will have to decide whether the First Amendment’s speech protections apply also to youngsters in this instance.

The issue has come forward in a case involving several students’ whose words – all religious – allegedly were stifled by school officials.

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.”

Oral arguments were delivered today, and the court offers a web link where the recordings are posted.

The case is being pursued by the Liberty Institute, which explained that then-8-year-old Jonathan Morgan was prevented from handing out candy canes with Jesus’ name on them to classmates.

“Back Fired,” by William J. Federer, shows how the faith that gave birth to tolerance is no longer tolerated!

In another episode that was covered by the combined case, school officials confiscated a little girl’s pencils because they mentioned God. And in yet another incident, students in an entire class were banned from writing “Merry Christmas” on cards being mailed to U.S. troops in Iraq.

“The school officials are asking the court to change the law to actually allow religious discrimination for the first time in American law; the judges were very attentive and active today, and we are hopeful they will reject this radical request from the school officials,” said Kelly Shackelford, president of Liberty Institute.

Kelly Shackelford

Paul Clement, a former U.S. solicitor general under President Bush and former Solicitor General Kenneth Starr, now president of Baylor University, joined Liberty Institute by arguing for the students.

“This is ‘cold on the docks’ unconstitutional,” said Clement. “We come in the spirit of Barnette v. West Virginia, that school districts have the responsibility to obey the law.”

Charles Bundren, affiliate attorney with Liberty Institute, said the “big surprise today in the courtroom is that now the defendants are trying to shift their argument by throwing Plano Independent School District and their representation under the bus, and that school officials have no responsibility to know that they cannot engage in religious discrimination against student speech.”

A lawyer for the school district, Charles Crawford, told WND earlier that the parents and students who brought the challenge 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.

Liberty Institute noted that a wide range of organizations from conservative family-oriented ministries to the ACLU argued together that the school’s request should be denied.

The organization reported that when one of the appeals bench judges asked school officials exactly what religious speech they couldn’t ban, the answer was, “I don’t know.”

The case went through the district court level, and in its first appearance at the 4th Circuit, a three-judge panel ruled on behalf of the students. The en banc hearing before all the judges on the bench was unusual but not unprecedented.

The Liberty Institute appeal explained that school officials are arguing “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 Liberty Institute brief in the argument explained.

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.”

Shackelford 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.

Liberty Institute set up a special FirstAmendmentFreedoms.LibertyInstitute.org website to document the case and its arguments.

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.”