The full panel of the 5th U.S. Circuit Court of Appeals emphatically has decided that the Constitution’s free-speech rights apply to children, too, even if they are at school, but it has not held liable officials who were responsible for a series of constitutional violations, claiming the precedent of some 40 years was vague.

The decision this week came from the appeals court in the well-known “candy cane pen” case.


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.

In the case, school officials barred a student from handing out candy-cane pens with a Christian message to classmates at a “winter” party. The case eventually came to include several different incidents in which school officials restricted students’ speech because of the Christian content.

There could be no other result, judges concluded.

“Imagine the United States of America where the First Amendment protects a minor’s right to play violent video games, a person’s right to hatefully protest the funerals of our heroic men and women in the military, and the right to possess portrayals depicting animal cruelty, such as videos of people crushing kittens with their shoes, but does not protect a child’s right to share a pencil with another child at school merely because the pencil says the word ‘Jesus,'” wrote Judge Jennifer Walker Elrod.

With 16 judges sounding off on the issue, the opinion’s 100 pages were checkered with concurrences and dissents. Elrod wrote for the majority on several sections of the decision, filling some 45 pages of the ruling.

The case came from 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.”

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

“This appeal may only involve two students and two principals in a suburban school district in Texas, but it concerns conduct that ‘strikes at the very heart of the First Amendment’ – discrimination against student speech solely on the basis of religious viewpoint,” Elrod wrote. “Viewpoint discrimination is a ‘blatant’ violation of our First Amendment right to free speech, for it censors ‘particular views taken by speakers on a subject.’

“At the core of the First Amendment’s right to free speech is the right of one student to express a religious viewpoint to another student without fear. We hold that this right – to engage in private, non-disruptive, student speech – is protected from viewpoint discrimination under the First Amendment, and that the right extends to elementary-school students.”

Elrod said she also would have held Bomchill and Swanson liable, because such a concept is neither new nor radical, but a larger number of judges decided to grant them qualified immunity, meaning they would not face punitive measures for their unconstitutional actions.

That is the issue Liberty Institute said it might appeal to the U.S. Supreme Court, because of the precedent it would set by leaving it unchallenged. The decision must of necessity hinge on what it would mean to have a constitutional violation but no penalty.


Kelly Shackelford

Shackelford told WND the ruling essentially declares the school officials’ actions unconstitutional but says there would be no punishment. He said it’s a “dangerous message” to give to officials that “we’re going to let you off the hook.”

He cited the narrative in Elrod’s writings of what happened in one of the incidents. The judge explained that one student had been told she was not allowed to hand out some “Jesus” pencils during a class party but could outside of school.

The judge narrates:

Later that day, after school hours, outside of the school on the sidewalk and lawn, Stephanie was talking to some of her friends. As she reached over to one of her best friends to share one of the “Jesus” pencils, Bomchill saw Stephanie and grabbed her shoulder. Bomchill confiscated the pencil and scolded Stephanie. Despite Bomchill’s earlier statement that Stephanie could share the pencils after school outside of the school building, she told Stephanie that she could not give out the pencil on school properly because it expressed a religious viewpoint. Bomchill then told Stephanie’s mother that if Stephanie tried to give out these pencils again, she would be ‘kicked out of school.’

Shackelford said the principals essentially claimed immunity because they said they didn’t know about such free- speech standards. He didn’t buy their argument.

“They say ‘We just focus on school and don’t know about this. We had no idea,'” he said. “‘There’s no case exactly like this.'”

But he said that was roughly the equivalent of a police officer reprimanded for beating a suspect with a baseball bat taking a crowbar to another victim and saying, “I didn’t know I couldn’t use a crowbar.”

Elrod also pointed out a long list of Supreme Court decisions leaving the First Amendment rights for elementary school students “well-settled.”

“The idea that students have the right to be free from viewpoint discrimination at school is not subject to reasonable debate, and has not been for more than four decades,” she wrote.

But the judge noted that the principals had a very simple argument.

“The sole question properly before this court is the only one the principals raised before the panel: Is it clearly established that elementary school students have First Amendment rights? Throughout this litigation, the principals have insisted that the answer to that question is ‘no.’ Thus, according to the principals, because ‘First Amendment free speech protections do not apply to elementary schools,’ their decision to discriminate solely on the basis of religious viewpoint was permissible.”

But she jabbed at them: “Had they not pursued this strategy, they would have been stuck defending blatant viewpoint discrimination.”

“What one child says to another child is within the protection of the First Amendment unless one of the narrow exceptions discussed above applies, and none does in this case. Accordingly, we hold that the First Amendment protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech. Therefore, the principals’ alleged conduct – discrimination against student speech solely on the basis of religious viewpoint – is unconstitutional under the First Amendment.

“As a last ditch effort, in the face of clearly established law, the principals fall back on the argument that religious speech in the schools is a very confusing area and that courts’ interpretations [of precedent] have varied widely,” the judge wrote.

They claim “because some of these cases involved ‘Jesus’ pencils, candy-canes, holiday parties, and religious speech, they were confused,” she said. “Unless we accept the simplistic proposition that anything involving religion is confusing, and that the words ‘candy cane’ or ‘holiday party’ are talismanic, these cases do not vitiate the fair warning provided by the Supreme Court, this court and the U.S. government.”

Both Bomchill and Swanson had “fair warning” their actions were illegal, the judge said.

Not calling the administrators on their position, Elrod wrote, would end up “that in every case involving religious discourse, school officials could merely throw their hands up in bewilderment, claim ignorance or confusion, and freely censor private religious speech without consequence. The principals’ position in this litigation is extreme: at oral argument, when asked what rights students clearly have regarding religious speech, counsel for the principals replied that he did not know. This is not only unacceptable, it is unreasonable. A reasonable school official is presumed to know the law. It is clearly established law that viewpoint discrimination is verboten.”

The case decided this week involved only the liability of the two principals, and the case against the school continues.

In other incidents addressed in the combined case, school officials confiscated a little girl’s pencils because they mentioned God, and an entire class of students were banned from writing “Merry Christmas” on cards being mailed to U.S. troops in Iraq.

Liberty Institute has posted the history of the case and its arguments online.


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