2nd Grader's Parents Seek Injunction to Hand Out Religious Candy Canes

By Mark Wilson, Esq. on November 13, 2014 | Last updated on March 21, 2019

In December 2013, Isaiah Martinez -- undoubtedly an Adorable Child (as evidenced by this photograph) -- brought some candy canes with him to his public elementary school, to be given away to his classmates as Christmas gifts. But those mean old school officials wouldn't let him. Another casualty in the War on Christmas!

Well, not quite. Each candy cane had a little paper attached containing the "candy cane legend," which described how the white part of the candy cane represents "the virgin Birth, the sinless nature of Jesus" and the red stripes represent "the blood shed by Jesus on the cross so that we could have the promise of eternal life, if only we put our faith and trust in Him."

Religious Candy Canes

So ... yeah. Not exactly secular candy canes. The school principal prevented Adorable Child I.M. from passing the candy canes out to his first grade class until the religious messages were removed. Nine months later, Isaiah's parents sued the school district for violating his First Amendment rights. Just in time for the holiday season, the plaintiffs have moved for a preliminary injunction allowing him to pass out religiously messaged candy canes this year.

The plaintiffs, represented by Advocates for Faith & Freedom, couldn't have dreamed of a better tagline: "Jesus is not allowed in school" -- allegedly what Isaiah's teacher gave as the reason for not letting him pass out the religious messages.

If this all sounds terribly familiar, a Texas case with eerily similar facts was dismissed last year after ten years of litigation -- because the petitioners didn't serve the complaint on the defendant by certified mail.

A First Amendment Salmagundi

Isaiah's case intermingles a school speech issue with a Free Exercise Clause one. On the one hand, Isaiah's speech isn't disruptive to the degree that it wouldn't be permitted by Tinker v. Des Moines. Student-orchestrated religious evangelizing (and make no mistake -- the purpose of "the legend of the candy" is explicitly to evangelize), however, isn't so cut and dry.

The motion for a preliminary injunction is predicated largely on a single case from the Third Circuit -- Walz ex rel Walz v. Egg Harbor Township Board of Education -- which also dealt with an elementary school student distributing the candy cane story at school during the holiday season. The Third Circuit, however, found that the school's response -- letting the student distribute the candy canes during recess or after class -- was appropriate. It was also explicit that the student's mother, not the student, was behind the distribution of the candy canes "to promote a religious message through the channel of a benign classroom activity." Such facts aren't present in Isaiah's case, and it's likely the court here could choose a middle ground like permitting distribution of the candy canes outside the classroom.

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