November 2011 Church & State | AU Bulletin

The 5th U.S. Circuit Court of Appeals has held that Plano, Texas, school principals have immunity in a lawsuit alleging they restricted elementary school students’ distribution of religious literature in violation of the Constitution.

The suit arose in 2003 when administrators at Thomas Elementary School prevented an eight-year-old boy from distributing candy-cane pens with religious messages on them. The district that oversees the school was eventually sued by several parents on free speech grounds.

Plano Independent School District changed its practice later, allowing students to pass out religious materials at specific locations and times. That new policy was ruled constitutional by a district court in 2009, but the court also said the earlier actions of the principals made them liable for violating free speech rights. A three-judge panel of the 5th Circuit Court agreed, but the full court did not, granting the principals immunity in a Sept. 27 ruling.

In a separate majority ruling, the actions of the principals were, however, found to be unconstitutional by the appeals court. In a 100-page decision in Morgan v. Swanson, the majority said: “[W]hat one child says to another child is within the protection of the First Amendment unless one of the narrow exceptions discussed [earlier] applies, and none does in this case. Accordingly, we hold that the First Amendment protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech.”