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Elementary Students Have Rights on Christmas Messages, Court Rules

By Mark Walsh — December 02, 2010 2 min read

Just in time for the holiday season, a federal appeals court has given a boost to parents and children who challenged a Texas school district’s refusal to allow elementary school students to distribute items with Christmas and other religious messages at school parties and events.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, said that it is clear that elementary-age children have First Amendment rights of free speech and to be free of religious viewpoint discrimination. The court upheld a federal district court’s denial of qualified immunity to two elementary school principals in the Plano Independent School District.

The principals “have consistently argued both before the district court and this court that qualified immunity should be granted because elementary school students do not have any First Amendment rights,” the 5th Circuit panel said in its unanimous Nov. 29 opinion in Morgan v. Swanson. “No law supports [their] novel proposition. It is clearly established that elementary school students have First Amendment rights.”

The ruling stems from a lawsuit challenging restrictions on the distribution of a number of religious items at various school functions. One student distributed goodie bags at a school holiday party with pencils stating “Jesus is the Reason for the Season.” School officials allegedly confiscated the pencils and banned them from school property, court papers say.

Another student was allegedly barred from distributing pencils at her classroom birthday party with the message “Jesus loves me, this I know, for the Bible tells me so.”

Another parent alleges in the suit that students were prohibited from using the term “Christmas” at school and could not write “Merry Christmas” on holiday cards sent to retirement homes.

Since the school principals were seeking immunity at an early stage, the 5th Circuit’s ruling accepts the suit’s allegations as true. The lawsuit will now proceed in district court, and the families will have to prove they suffered religious-viewpoint discrimination to ultimately win the suit.

But the appeals court says school officials should have known from Supreme Court decisions and other 5th Circuit rulings that elementary school students have First Amendment speech rights as long as their speech is non-disruptive. The panel said the rights of elementary students may not be “coextensive” with those of high school students, but the younger students do have such rights.

Efforts by students to distribute such religious trinkets to their classmates have led to a number of lawsuits in recent years. In the same Plano district, a separate 5th Circuit panel last year upheld a 2005 district policy establishing time, place, and manner limits on when such materials may be distributed. The policy evolved out of some of the very controversies at issue in this week’s ruling. (I blogged about that December 2009 ruling here and discussed it in a slightly different context in this Education Week story.

A Hat Tip is in order to the National School Boards Association’s Legal Clips site for this case. The site also has a link to a Word document charting the many cases about the distribution of religious materials in schools.

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


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