A court case that started with a candy cane could end up deciding the fate of First Amendment rights for elementary school children.
The 5th U.S. Circuit Court of Appeals heard an appeal in New Orleans Monday for Morgan v. Plano Independent School District, commonly known as the “candy cane case,” in which the argument turns on whether elementary students have First Amendment rights, particularly freedom of speech and freedom of religion.
The court heard arguments en banc, or in front of all 17 judges, an occurrence reserved for cases with national implications. Its decision will not be released for three-to-six months.
The case originated in Plano, Texas, when, at a third grade class “winter party” in 2003, student Jonathon Morgan brought in candy cane-shaped pens to share at a class gift exchange. But school officials did not allow him to hand out the pens because they had religious messages attached – cards explaining the treat’s Christian roots. Administrators said the candy canes violated the school district’s policy.
This incident was not the first time parents in the Plano Independent School District had taken issue with what they saw as restrictions on students’ First Amendment rights. At a “winter party” at the same school in 2001, a student’s pencil party favors were confiscated because of the words printed on the sides: “Jesus is the Reason for the Season.”
Disgruntled parents banded together behind the conservative Liberty Institute and sued the school district, contending that school officials violated the students’ First Amendment rights.
The case appeared before a typical three-judge panel of the U.S. Court of Appeals last year, and the court ruled 3-0 in the favor of the plaintiffs, writing in its review of the case, “It has been clear for over half a century that the First Amendment protects elementary school students from religious-viewpoint discrimination.”
But the school district appealed the decision, and so the case was reheard Monday by a full court.
The school district argued that the administrators involved were just following a poorly worded policy and now have been “snagged and dragged into a cultural and political battle,” according to Thomas Brandt, Plano Independent School District’s lead attorney.
But the lawyers representing the students and parents, including two former U.S. Solicitor Generals, Paul Clement and Kenneth Starr, believe there should be no wiggle room in the case of First Amendment rights.
“The school officials are asking the court to change the law to actually allow religious discrimination for the first time in American law,” said Kelly Shackelford, lead attorney and president of Liberty Institute.
The students and parents have more than luck on their side. Eight groups, from conservative watchdogs to the ACLU, filed briefs in support of the plaintiffs.
And they have precedent in their favor as well. In the 1943 Supreme Court decision in West Virginia State Board of Education v. Barnette, in which two sisters refused to salute the American flag because of their religious beliefs as Jehovah’s Witnesses, the Supreme Court ruled that students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.” The Barnette sisters, now in their 80s, were in the courtroom Monday, and they heard calls back to their own First Amendment saga.
“This is ‘cold on the docks’ unconstitutional,” Starr argued. “We come in the spirit of Barnette v. West Virginia, that school districts have the responsibility to obey the law.”