Three years ago, a federal appeals court issued an important ruling that elementary school children have First Amendment free-speech rights to discuss religion with the classmates.
The decision stemmed from a now-infamous incident in the Plano, Texas, school system in which a principal barred a student from distributing candy canes to his classmates with Christian messages attached.
Now, a panel of the same court—the U.S Court of Appeals for the 5th Circuit, in New Orleans—has ruled on a separate legal claim stemming from that same day at the 2003 winter break party at Thomas Elementary School in Plano.
The latest appeal involves a claim not by a student but by a parent, Doug Morgan. He was in attendance at the party that led to the 2011 decision by the full 5th Circuit court on elementary-student rights.
The elder Morgan is asserting the claim that his own First Amendment speech rights were violated when Principal Lynn Swanson barred him (as well as his son, Jonathan) from distributing the religious materials.
A federal district court held that the principal had qualified immunity from the parent’s claim, and it declined to go further and rule on the constitutional issue.
In its April 2 decision in Morgan v. Swanson, a three-judge panel of the 5th Circuit court affirmed the district court.
“The sole question before this court is whether Morgan’s asserted right to distribute the material was so clearly established that Principal Swanson is not entitled to qualified immunity,” the appeals court said. “The district court did not address the actual constitutionality of Swanson’s conduct, and because we find that she is entitled to immunity, we need not reach that question today.”
The panel said the elder Morgan has not identified any cases that clearly established a parent’s right to distribute materials while visiting a school, and “nor are we aware of such a case.” Thus, the court said, the parent could not overcome the principal’s immunity from his claim.
Two judges on the panel wrote concurrences suggesting that parents may have some First Amendment free-expression rights when schools create a forum that includes them. But “the contours of those rights” are not clearly established, said Judge Fortunato P. Benavides, and thus the principal is entitled to immunity.
Judge Edith Brown Clement wrote that the elder Brown had the same free-speech right as his son to distribute the religious materials under the circumstances of the case. But she said his claims were bound by the immunity holding of full 5th Circuit’s decision in the student’s case.
In that 2011 ruling, which the U.S. Supreme Court declined to review, the full 5th Circuit had held that despite the existence of a free speech right among elementary school students to discuss religion, the state of the law in this area was so confused that Swanson was immune from the suit filed on behalf of Morgan’s son.
Judge Clement, in her concurrence this week in the parent’s case, said that “if Jonathan Morgan’s right to share his religious message was not clearly established enough then to deprive Principal Swanson of qualified immunity, the same must be said” for the father’s claim.