Fifth Cir. OKs First Amendment Candy Canes and Qualified Immunity

By Robyn Hagan Cain on September 29, 2011 | Last updated on March 21, 2019

The holidays are a time when we can set aside our differences and focus on what unites us as people. For kids, candy canes might be the common thread. For school principals, it's qualified immunity. For the Fifth Circuit Court of Appeals, it's a 100-page decision on First Amendment rights for kids and qualified immunity for the instructors who teach them.

In Morgan v. Swanson, better known as the Candy Cane case, the Fifth Circuit ruled that Texas elementary school students had a First Amendment right to engage in student-to-student religious speech, but school administrators who restricted their right to do so were protected by qualified immunity because the law is unclear on the extent of students' free speech rights.

In 2003, then-third-grader Jonathan Morgan wanted to give his classmates holiday gift bags with candy cane ink pens. Each pen was attached to a laminated bookmark containing a written message, "The Legend of the Candy Cane." "The Legend" describes how a candy maker created the candy cane as a Christian symbol. Principal Lynn Swanson, told Jonathan's parents that he could not distribute the pens.

The Morgans lawyered up, exchanged sternly-worded letters with the school district, and eventually sued when the school maintained that it would be within its rights to specifically restrict distribution of religious messages in the classroom.

In 2004, Principal Jackie Bomchill threatened a second plaintiff, then-second-grader Stephanie Versher, with expulsion after Versher tried to give her classmates tickets to a local church's passion play and Jesus pencils. Versher's mother confirmed with Bomchill that Stephanie could not distribute the Jesus pencils during school due to their religious message, and also lawyered up.

The Fifth Circuit Court of Appeals ruled that the principals erred in restricting the students' free speech rights, finding that "the First Amendment protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech. Therefore, the principals' alleged conduct--discriminating against student speech solely on the basis of religious viewpoint--is unconstitutional under the First Amendment."

But the Candy Cane case isn't just a gift for students, it's a gift for school administrators.

The court also found that the school principals in the case could not be held personally liable for infringing on the students' free speech rights, noting, "The principals are entitled to [qualified] immunity because the general state of the law in this area is abstruse, complicated, and subject to great debate among jurists."

In true, strictly-secular, pre-holiday fashion, everyone's a winner in this case.

Of course, the students scored a slightly better win than the school administrators: While students can hand out their candy cane pens without fear of retribution, teachers and principals should proceed with caution. School officials who restrict student-to-student religious speech in similar cases in the future may not receive qualified immunity from the Fifth Circuit Court of Appeals because the Candy Cane case has resolved the issue.

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