Justices Decline Review of Religious Speech Case

By Mark Walsh — June 11, 2012 3 min read
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The U.S. Supreme Court on Monday declined to step into a thorny case involving the free-speech rights of elementary school students and the potential legal liability of school administrators who try to limit religious speech.

The justices refused to review a ruling by a federal appeals court that elementary school students have First Amendment free-speech rights to discuss religion with their classmates, but that administrators involved in the case were immune from liability because those rights were not clearly established.

The appeal stems from a long-running lawsuit over several incidents in which administrators in the Plano, Texas, school district 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 full U.S. Court of Appeals for the 5th Circuit, in New Orleans, had ruled last September that based on facts alleged in the suit, two school principals likely violated the rights of two students who were barred from distributing the religious-themed items.

The First Amendment “protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech,” the 5th Circuit court majority said in a 9-7 ruling. “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 on the appellate court held that the two principals were entitled to qualified immunity from personal liability in the lawsuit because it was not clearly established that administrators lacked authority to bar student speech based on a religious viewpoint.

“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,” one 5th Circuit judge said in that part of the decision.

Both sides in the case filed appeals with the Supreme Court.

The parents, represented by high-profile Supreme Court litigator Paul D. Clement, argued that the case would be a good vehicle to clarify the law about the free expression rights of students, especially with regard to religious speech.

“The en banc 5th Circuit has sowed confusion as to the one aspect of this court’s student speech jurisprudence that is beyond debate: school officials cannot discriminate against private, non-curricular speech solely on the basis of its religious viewpoint,” the appeal in Morgan v. Swanson (Case No. 11-804) said.

The parents’ appeal drew several friend-of-the-court briefs, including one from four former U.S. attorneys general and three former U.S. secretaries of education.

“Public schools serve as laboratories for citizenship by teaching students to exercise First Amendment rights responsibly, not by teaching that the government may suppress disfavored religious or political messages,” said the brief, which was signed by former attorneys general Edwin Meese III, William P. Barr, Alberto R. Gonzales, and Michael B. Mukasey; and by former education secretaries William J. Bennett, Lamar Alexander, and Rod Paige.

On the other side, the two school principals filed briefs opposing the parents’ appeal and their own conditional cross-appeal, Swanson v. Morgan (No. 11-941) that argues the 5th Circuit went further than it needed to by ruling on the free-speech rights of elementary students.

“The law was and is unclear as to the relative scope of establishment clause and free speech rights of elementary school children,” which supports immunity for the principals in the case, one of their briefs says.

The justices declined without comment to hear the appeals from either side.

That is probably not the end of the case.

The full 5th Circuit noted last September that its decision that the First Amendment rights of the two students were likely violated applied to only two out of several incidents detailed in the parents’ lawsuit.

“The case now before us represents a relatively small part of the plaintiffs’ larger suit,” one of the 5th Circuit’s judges said at the time. “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.