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Religious Candy Cane Case Dismissed For Failure to Mail

By Brett Snider, Esq. on July 29, 2013 | Last updated on March 21, 2019

Petitioners who have continued their litigation against a Texas school district for dampening their free expression rights have been denied due to a failure to send by certified mail.

The heart of Morgan v. Plano Independent School District, a Texas case involving a school district's refusal to allow students to distribute candy canes with religious messages on school grounds, turns on an anticlimactically boring jurisdictional issue, which the Fifth Circuit dispatches with procedural ease.

Guess the Morgans should have asked for stamps for Xmas.

Candy Cane Complaint

The case's genesis is in a 2003 complaint from the Morgan family which was faxed to a Plano Independent School (PISD) administrator asserting that a PISD elementary school was refusing to let the Morgan children distribute candy canes with religious messages attached (explaining the "Legend of the Candy Cane").

PISD administrators, and later lawyers, responded that the school's policy did not allow distributing religious materials on school grounds, and the Morgans proceeded to sue the school under the Texas Religious Freedom Restoration Act (TRFRA), which in many ways is a Texas codification of the Lemon test.

After a decade of litigation, the Morgans have brought their case to the Fifth Circuit, where the PISD claims they are immune from suit because the Morgans failed to comply with the TRFRA pre-suit notice requirement which required:

  • A written notice to the school containing the elements of the TRFRA complaint
  • By certified mail
  • 60 days before filing suit

This requirement allows the government entity time to accommodate the person complaining of restricted free exercise of religion, and the PISD argues that under the Texas law it is a bar to suit for the Morgans because without the notice, PISD retains governmental immunity.

Pre-Suit Notice Requirements

The Morgan court steeps itself heavily in Texas state law in order to decide this question as the Fifth Circuit is bound to apply state law consistent with the Texas State Supreme Court.

Fortunately, there is a Texas Supreme Court case on point that notes that statutory waivers of sovereign immunity under Texas state law, when dealing with pre-suit notice, are valid prerequisites to jurisdiction when:

  1. The prerequisite is found in the statute
  2. The prerequisite is a requirement
  3. The requirement must be completed prior to suit

The pre-suit notice requirement hits all these marks, so the Morgan court is satisfied that, despite the Morgans' claim that their faxed notice was "substantial compliance" with the statute, PISD did not waive its immunity and therefore the suit against them lacked jurisdiction.

Dissent Questions Results

Fifth Circuit favorite Judge Elrod, noted for her use of "surplusage," thinks the Morgan majority decides this case unlike the way the Texas Supreme Court might, in essentially gutting a 10- year run of litigation on a very, very minor technicality.

Elrod asserts that giving proper deference to the Texas Supreme Court not only refers to their interpretation of state law, but also what the high court would deem "best," which seems to point at a fudging of the procedures at least a little bit.

Bottom Line

Regardless of the merits of the Morgans' claim, the Fifth Circuit is bound to respect the procedures of Texas law, and "little" procedural problems are what stall appellants and plaintiffs in every court, not just the ones wielding candy canes.

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