May 23, 2011 Print

5th Circuit Hears ‘Outrageous’ Appeal in ‘Candy Cane Case’

by Jennifer Mesko

Are children required to leave their First Amendment rights at the schoolhouse door?

That was the issue before the full 5th U.S. Circuit Court of Appeals in New Orleans today.

School officials from Plano, Texas, maintain they were correct seven years ago, when they prevented 8-year-old Jonathan Morgan from handing out candy cane pens because they included a message about Jesus.

And two years earlier, when they confiscated pencils that read, ”Jesus is the Reason for the Season.”

And when they banned an entire class from writing “Merry Christmas” on cards to U.S. troops serving in Iraq.

The all-star legal team representing the students includes former Solicitors General Kenneth Starr and Paul Clement — who is defending the federal Defense of Marriage Act in court — as well as the Liberty Institute, a Texas policy group that is associated with CitizenLink.

Eight groups of diverse political views — including the American Civil Liberties Union — have filed briefs in support of the students.

Kelly Shackelford, president and CEO of the Liberty Institute, said the court was listening intently.

“Certainly the court thought it was very serious that they were arguing to take away the rights of all elementary school students,” he said. “They realized how outrageous and how dangerous that would be.”

Shackelford said the school officials attempted to claim separation of church and state.

“The school officials tried to act like they didn’t realize you couldn’t engage in religious discrimination against children in the school,” he said. “They thought maybe they had to ban religious speech, (because someone) might think that the school was pushing religion.”

Hans von Spakovsky, a senior legal fellow at The Heritage Foundation, writes: Rather than acknowledge that they made a mistake … they have spent over a million taxpayer dollars fighting this lawsuit all the way up to the federal appeals court.

“In fact, they claim that they did nothing wrong and should be granted ‘qualified immunity’ because ‘the First Amendment does not apply to elementary school students’ and the ‘Constitution does not prohibit viewpoint discrimination against religious speech in elementary schools.’ And these are the people teaching civics to our children!”

A decision in Morgan et al. v Plano, Texas Independent School District is expected in the fall. Shackelford said he expects the case to go to the U.S. Supreme Court.

Visit the Liberty Institute website.

Read Hans von Spakovsky’s column on the case.

Watch a special video about the case.

Paul Clement, left, and Kelly Shackelford, right, are representing the students. Marie Barnett Snodgrass was the plaintiff in a similar case in 1943, in which the U.S. Supreme Court ruled in favor of students’ rights. Photo courtesy Liberty Institute.

Eight years ago, Jonathan Morgan planned to give his classmates candy cane pens with a message about Jesus. Today, the 16-year-old was in the courtroom. Photo courtesy Liberty Institute.