Court Rules Young Students Have Religious-Speech Rights

By Mark Walsh — September 28, 2011 2 min read
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A full federal appeals court has ruled that elementary school students have First Amendment free-speech rights to discuss religion with their classmates.

The U.S. Court of Appeals for the 5th Circuit, in New Orleans, held that based on facts alleged in a long-running suit involving incidents in the Plano, Texas, school district, two school principals likely violated the rights of two students who were barred from distributing items such as religious-themed candy canes and pencils with religious messages to fellow students.

“We hold that the First Amendment protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech,” Judge Jennifer Walker Elrod wrote in a part of her opinion, joined by nine of the 16 participating judges. “Therefore, the principals’ alleged conduct—discriminating against student speech solely on the basis of religious viewpoint—is unconstitutional under the First Amendment.”

However, a separate majority said the two principals were entitled to qualified immunity from personal liability in the lawsuit because rulings on student religious speech in public schools are far from clear for administrators.

“The principals are entitled to immunity because the general state of the law in this area is abstruse, complicated, and subject to great debate among jurists,” Judge Fortunato P. Benavides wrote for some of those judges.

The 5th Circuit court’s Sept. 27 decision in Morgan v. Swanson includes eight separate opinions covering a total of 100 pages.

Some judges would not have granted immunity to the principals. And those who did not sign on to the majority’s opinion on elementary students’ rights suggested that it was too soon in the litigation to decide the constitutional issues. Judge Carolyn Dineen King said the case would benefit from further factual development on whether parents were influencing their elementary-age children to proselytize in school.

The lawsuit covers several incidents in which school administrators allegedly barred students from distributing items such as religious-themed candy canes or pencils with messages like “Jesus is the Reason for the Season” or “Jesus loves me, this I know, for the Bible tells me so.”

The case has been bouncing up and down for several years, with a 5th Circuit panel in 2009 rejecting a facial challenge to one of the school’s policies on students distributing materials to their classmates.

Last year, another 5th Circuit panel ruled that elementary school children have First Amendment rights and that the principals were not entitled to qualified immunity. The full 5th Circuit set aside that ruling, and as noted above, its decision this week went along with the idea of elementary student speech rights but said the area was so unsettled that the principals deserved immunity.

The full 5th Circuit noted that its decision that the principals likely violated the First Amendment rights of the two students applied to only two out of several incidents detailed in the suit.

“The case now before us represents a relatively small part of the plaintiffs’ larger suit,” Judge Benavides said. "[The] various claims are proceeding in pieces. ... This is not our first word on the issues in this case, and it will likely not be our last.”

A version of this news article first appeared in The School Law Blog.