Still Arguing Plano ISD's 'Candy Cane Case,' This Time in Front of the Whole Fifth Circuit

Still Arguing Plano ISD's "Candy Cane Case," This Time in Front of the Whole Fifth Circuit

By Robert Wilonsky Wed., May 25 2011 at 4:19 PM

Doug Morgan, left, and son Jonathan, whose Jesus pencils lead to a lawsuit that's 8 years old and only getting older

Out of the blue today I got a call from somebody at the Liberty Institute, who said she was returning my message. "I guess you're calling about 'The Candy Cane Case,'" she said. Um ... no? I think it was about this, actually, but that was a couple of weeks ago. But ... you don't mean this Candy Cane Case, do you? Yuh-hunh. The very same one.

You remember, right? Eight years ago, Jonathan Morgan and other kiddos brought some religious paraphernalia to their Plano Independent School District elementary schools 'round Christmastime, including "Jesus is the Reason for the Season" pencils and "candy canes with cards describing their Christian origin." District officials said that was a violation of PISD policy, Bill O'Reilly (who got his facts wrong) called it the latest salvo in the War on Christmas ... and off the courts they went, ho-ho-ho. Finally, the U.S. Court of Appeals for the Fifth Circuit ruled that PISD's policy was constitutional, and last June the U.S. Supreme Court refused to even hear the case. And that was that.

Only it wasn't, because the courts refused to dismiss Lynn Swanson, principal of Thomas Elementary, and Jackie Bomchill, principal of Rasor Elementary, from the original litigation. Which is what led to an en banc hearing in front of all 16 judges of the Fifth Circuit just two days ago.

"They grant that to very few cases, and the majority have to say yes, and they said yes in this case," says Josh Skinner, the Dallas attorney repping the Plano principals who asked for the Monday hearing in order to have the teachers released from the lawsuit.

Liberty's making a Big Deal out of this, insisting the hearing's "outcome could impact 41 million American students" who, it says, are being deprived of their "constitutional freedoms." Here's Liberty Legal's brief prepared for Monday's oral arguments, which, it insists, "is to ensure that school officials treat all students' religious and non-religious views with even-handed respect [because] the Constitution and clearly established law demand nothing less." They've even made a lengthy video, which was posted to YouTube last week and which follows after the jump. (Ken Starr cameo!)

Skinner was kind enough to send his brief, which says, in short: Everyone else in the district's been dismissed from the suit, so his clients should be too. And as for the video ...

"It misrepresents what happened, that's the biggest problem with it, and it misrepresents the legal issues," he tells Unfair Park. "The long and the short of it is they weren't discriminating against anyone. Nobody was being prevented from distributing something because it was religious. District policy didn't allow anything to be distributed. And the legal issue is a very narrow issue dealing with the fact the case law is confusing, but the plaintiffs' attorneys have described it as trying to take rights away from lots of school children, and they're ignoring cases from around the country talking about how confusing it is. Some of the cases involved religious materials, and in some of the cases it's not religious materials. But across the board judges have been unsure how involved federal courts should be in elementary schools."

He says an answer from the court is expected within three to six months. In other words, Christmas is coming early for someone. Your presents, however, are after the jump.

Supplemental en Banc Brief of Appellants Swanson Bomchill (00387658)

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Paul

I don't know which is worse, the arguments over the rights to free speech or the fact that the story espoused by this child and his parents about the origin of the candy cane are so bogus.

http://www.snopes.com/holidays...

Personally, If I had a child in public school, I would have him/her pass out pictures of Ganesha, which would be oh so appropriate for the school environment.

Michael Garrett

This case seems to have been taken too far out of proportion. These children were not trying to force their religion onto other students.. they were simply sharing gifts with each other.

I’m not sure what merit the appeal holds.. it just seems to be wasting more taxpayer money during a time when school budget cuts and lack of funding have been top news stories.

At least after-school programs are not affected by this case… http://bit.ly/canecandy

Alan Okpechi

It reminds me of a little girl who had a pencil taken away from her in Plano because it said "Jesus" on it. I mean, how far is this going to go?

The newest argument that the secularists are capitalizing on is "students don't have First Amendment Rights protections." I would think that the in this case the government is infringing on the rights of the student who wishes to pass out a note proclaiming the truth. Christmas is not secular.

Read about the case here: http://www.afterschooling.org/...

What do yall think? Should this second appeal be denied or should it be okay for kids to pass out religious notes during school?

Tad Banyon

"...in this case the government is infringing on the rights of the student who wishes to pass out a note proclaiming the truth. "

The truth? If it was the undeniable truth, there wouldn't be a need to pass it out, it would be taught in the cirriculum like all the other true things, such as evolution.

Lakewooder

McLovin is suing PISD? Awesome.

Guest

Now that I see a picture of this Doug Morgan person, his passionate interest in candy canes suddenly makes sense (yes, I know he's the father of the pencil kid, but the joke works better with candy canes).

Oak Cliff Townie

Sorry But Candy Canes ? What a bunch of wimps

I prefer to see The Righteous Fight the DEVIL.....And the devil would have no problem telling Kelly Shackleford where those candy canes need to go.

Cliffhanging Mom

Ok, I'm a tad bit embarrassed to tell this story, but in the spirit of the All Knowing, All Healing Candy Cane....my kid arrived back at our (heathen) home after school one day, saying that a guy had visited the school passing out Bibles.

Only took a second to figure out that it was a Gideon, passing them out on the public SIDEWALK in front of the school on National Prayer Day.

"I was worried that you would be mad if I took one, so I didn't." You could have taken a Bible. Why would I care? "I dunno, but it looked kind of small. It was the New Testament. When did that come out?"

balls connoisseur

I'm notifying CPS as we speak! Gasp! Dear Lord, may your powers of holy and sweet sticky goodness rain down on this family. In your blessed name we pray with tooth decay, Amen!

balls connoisseur

What's the problem? Didn't Jesus feed the multitudes with a candy cane? That's what I learned as a child attending the Church of Reese's Pieces.

Dan Cutrer

Follow the money!

Liberty raises beaucoup with their direct mail and website, asking "partners" to help them ... whatever. The more improbable their litigation, the more they haul in

The legislation recently passed in Austin won't cover suits of this kind, if Liberty had to cover what the taxpayers are needlessly spending, it wouldn't be nearly as profitable, or as much fun!

DISD Teacher

Emotionally needy parents often use their children to get attention.They initiate some sort of drama and then live for all the conflict.They are called "conflict-seeking".As a teacher, it's awful to watch.

99% of us agree NOT to use our kids to make a point or make our lives more interesting; we keep our religious beliefs to ourselves. We don't do this because we have to, we do it because we respect that others have their own beliefs and because, after all, these are just kids.

But you always have to have 1 needy person cause problems.

ThatGuy

The Candy Cane story is a total fiction. Pencils? Let the court decide. But the Candy Cane thing is absolute bunk. I am a Christian and I hate all this crap that is made up to give everything some secret meaning. By the way, the Twelve Days of Christmas is just a song. There is no hidden meaning to that either.

GusMitchem

These same "christian" assholes would be the first people to sue / complain / arm themselves if any person of any other religious group tried the same thing.

Picture this a young Muslim man decides to hand out some material about brukas or maybe a Hindu comes in advocating that all war is wrong.

Guest

And if it were muslims doing something like this, people like you would be demanding everyone be tolerant of their culture instead of calling them assholes like you do with christians, hypocrites.

Tad Banyon

Yeah, because its only Christian phony, self-important displays of so-called "faith" we don't like being forced to sit through. The non-Christian phony, self-important displays of so-called "faith" we love to painfully endure.

Tad Banyon

I wish that every time a Christian made a big public legal argument like this, a group of Muslims went out and did the exact same thing, just to watch all the Christians denounce their actions and demand they be ordered to stop. Can you imagine the chaos at a high school football game when the announcer asks everyone to join them in a prayer to Allah? Can you imagine how ugly things would get within minutes of a kid passing out candy with passages from the Quran? It would be a very effective way to illustrate beyond any doubt the hypocrisy of Christian activists who are so insecure about their faith that they have to make a public spectacle out of it.