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Court to Rehear Case on Elementary Students' Speech Rights

A full federal appeals court has agreed to hear fresh arguments in a case weighing whether elementary school students have First Amendment rights to distribute items with religious messages to their classmates.

The full U.S. Court of Appeals for the 5th Circuit, in New Orleans, announced on Dec. 17 that it would rehear Morgan v. Swanson, a case involving the scope of free speech rights of elementary school students.

The announcement came while the School Law Blog was on holiday hiatus. Hat Tip to How Appealing for noticing the order.

As I reported in the blog here, a three-judge 5th Circuit court panel in November upheld the denial of qualified immunity of two elementary school principals in the Plano, Texas, school district.in a lawsuit that challenges restrictions on the distribution of religious items by students to their classmates at holiday parties and similar functions. One such item was a pencil with the motto, "Jesus is the Reason for the Season."

The appeals panel said school officials should have known from Supreme Court decisions and other 5th Circuit rulings that elementary school students have First Amendment speech rights as long as their speech is non-disruptive. The panel said the rights of elementary students may not be "coextensive" with those of high school students, but the younger students do have such rights.

The full 5th Circuit's order granting rehearing in the case is here.

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