Fifth Circuit Judges Spend 100 Pages Debating Plano "Candy Cane" Case, First Amendment

Categories: Legal Battles
jesusflag.jpg
Via.
When last we checked in on the nearly 8-year-old (!) case involving those Plano ISD students (and their parents, more to the point) suing the district over those "Jesus is the Reason for the Season" pencils and candy canes they weren't allowed to distribute during winter-break parties, one of the sole remaining issues was whether Lynn Swanson, principal of Thomas Elementary, and Jackie Bomchill, principal of Rasor Elementary, would be cut loose from the litigation. The lower courts refused to do that, which is why, last May, the case went before the 5th U.S. Circuit Court of Appeals in New Orleans.

This morning, a Friend of Unfair Park sends us the 100 pages' worth of back-and-forth between the judges, who ultimately decided in the majority that the principals were immune from prosecution after all. But the doc, which sums up close to a decade's worth of legal fighting, also reveals the judges disagree amongst themselves over whether the principals' decisions violated the kids' First Amendment right. Most say yes, absolutely, among them Circuit Judge Fortunato Benavides, who writes:
Important to the conclusion that Principal Bomchill acted unconstitutionally is the fact that she allegedly restricted Stephanie's "Jesus" pencils solely because of their message. From this pleaded fact, it can only be inferred that Stephanie would have been allowed to distribute her pencils if they had born a secular message.
Judge Jennifer Walker Elrod, who will eventually provide one of the ruling's more disturbing images, goes one step further, insisting that because the principals violated the kids' First Amendment rights, they shouldn't be given immunity:
At the core of the First Amendment's right to free speech is the right of one student to express a religious viewpoint to another student without fear. We hold that this right--to engage in private, non-disruptive, student speech--is protected from viewpoint discrimination under the First Amendment, and that the right extends to elementary-school students. I would also hold that this right is clearly established under existing law.
Judge Priscilla Owen isn't buying it:
"I cannot agree that the law is well-settled regarding the First Amendment rights of elementary school children."
Elrod disagrees:
Imagine the United States of America where the First Amendment protects a minor's right to play violent video games, a person's right to hatefully protest the funerals of our heroic men and women in the military, and the right to possess portrayals depicting animal cruelty, such as videos of people crushing kittens with their shoes, but does not protect a child's right to share 39 a pencil with another child at school merely because the pencil says the word "Jesus."
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29 comments
Docann
Docann

When I was a child (back in the era of the dinosaurs), one of the favorite school parties we looked forward to every year was the Halloween party.  We had cold spaghetti "brains"and peeled egg "eyeballs" to squeal over while a ghost story was told in the darkened classroom.  A parent came dressed as a witch, and had a "boiling cauldron" (with dry ice) of magic potion (Orange Crush).  We had black spider-shaped cookies (that turned our tongues black when we ate them) , and the classrooms were decorated to the hilt. We knew it was all pretend, and we loved it! Then by the time my children got to school, the right-wing Christians decided that Halloween was Satanic.  No more Halloween parties. Same with Valentine parties.  They were declared to be "pagan worship".  Finally, no more Christmas carols during lunch time in the cafeteria.  Kids couldn't ride the school buses to the nursing homes to entertain the residents.  Christmas Break became Winter Holiday.  I'm not a religious fanatic nor a right-wing nutjob, but when children can't have any fun at school, I guess we should take a lesson from the Chinese and go all the way.  Kids in China go to school six days a week and have hours and hours of study.  Then they practice gymnastics or music or whatever else they're deemed talented at doing.  No idle rest time for them!  There wouldn't be any evils such as t.v. watching or playing outside.    

NONE
NONE

So next will come Football Team SPIRIT BURKAS in team colors to support the Friday Nite crazies in order to be inclusive of the Muslim Cheerleaders Rights.

Paul
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.

MattL1
MattL1

The key here is whether or not the child's actions were disruptive of regular school activity.  Did they cause a stir?  If so, the administration had a responsibility to take action.  If not, they should let the kids be.  Lord knows I'm not a fan of religion, especially when related to school, but I also don't like officials over-exercising their authority.  

Guest
Guest

Well, I finally got to 2000 "Likes" for my comments here. I can now quit commenting forever and die a happy man.

Scruffygeist
Scruffygeist

Replace "Jesus" with "Satan."

Same results?

Nah, didn't think so.

Guest
Guest

It seems to me that if there's a time when kids are allowed to give stuff to each other (like at a holiday party), then telling kids they can't give away pencils with "Jesus" on them or candy canes with phony origin stories does seem wrong.

However, I do wonder if the decision wouldn't have been different had the content been different (I guarantee there's a limit somewhere).

Bill Holston
Bill Holston

http://en.wikipedia.org/wiki/T... I'm a Christian I primarily view this as a civil liberties issue. It's complex, like most things. You can't just reject this because you think (very likely accurately) that this is a view imposed by parents. You can't get inside the sincerity of belief. And, I'd feel the same if the pencil said Allah Ahkbar or Dont' eat the Spaghetti Monster. 

Public Schools should protect the 1st Amendment free speech and 1st Amendment Religious liberties of kids.

To be clear, I am not in favor or teaching religion or school sponsored prayer or any officially sanctioned religious activity. I'm just saying, I thing the rights to practice your religion and the right to free speech should be protected, as long as it is not disruptive.

Titus Groan
Titus Groan

So we have that

People pushing religion in school = toolsPeople suing about it = toolsOr to summarize, Plano = Tool Academy

OK, got it.

Montemalone
Montemalone

"At the core of the First Amendment'sright to free speech is the right of one student to express a religious viewpointto another student without fear. We hold that this right--to engage in private,non-disruptive, student speech--is protected from viewpoint discriminationunder the First Amendment, and that the right extends to elementary-school students. I would also hold that this right is clearly established under existinglaw."

But it wasn't just a student talking to a student. It was parents. The kids didn't go out and buy those pencils, the parents did. They wanted to force their religion on their kids' classmates.

Montemalone
Montemalone

Imagine if those xtian in training 7 year olds came  home bearing pencils with "Allah Be Praised" stamped on them.

Sloppy Joe
Sloppy Joe

A Dallas newspaper without Cowboys coverage. This sucks ass! Get Richie Whitt's midget fingers back on the keyboard now! Joe Tone, this is your fault. I don't know where you are right now, but if you're not working on your resignation, you're wrong.

TimCov
TimCov

Personally, I believe both sides in the case are overreacting:1. The people at the school went "OMG! He's giving out personal property with a harmless religious message. He must be stopped!"2. The parents went "OMG! They stopped our child from handing out our personal property with a religious message while he was in the facility they control and on the time he should be learning. We should be free to spread our religious message when and wherever we want. We'll sue!"

Both sides are wrong. If the kid was trying to force the pencils on kids who didn't want it, that is when the school should have stopped it. And, the parents are using this as a platform to forward their own agenda to do what they want where they want.

DuckDuckGoose
DuckDuckGoose

This entire topic is tiresome. Eight years debating a pencil having "Jesus" written on it ..

txmoderate
txmoderate

There is already an established precident by the US Supreme Court saying that students do NOT have a First Amendment right to free speech. Joseph Frederick proved it by displaying a "Bong Hits 4 Jesus" banner at an Olympic Torch parade on a city street during a break allowed by his high school for the purpose of watching the parade. SCOTUS ruled that the school could suspend the young man for his message, which they did. http://en.wikipedia.org/wiki/M...

Albert Gonzalez
Albert Gonzalez

When I was growing up back in the 50's and 60's  we always started our day in school with a small prayer or moments of silence . Now days we become a nation that is been run by a small group of people who feel they are been discriminated by acknowledging that we are a God loving  country.. Ever since we took God out our life we started to become what we are now.

Buckeye
Buckeye

Way to go!  You don't "Like" your own comments, do you?  'Cause that just ain't right.

MattL1
MattL1

Well done.  It's not easy to get people to click a button 2000+ times.  I hope to get there someday.

Jack E. Jett
Jack E. Jett

2001..........Congratulations...proceed to GO and collect $200....(from Wilonsky).

TimCov
TimCov

Are they made from real Sharia Scouts?

Zeeba Neighba
Zeeba Neighba

I think your comment speaks to the heart of the issue. Certainly the 1st Amendment's protection of religious freedom is a vital aspect of this country. But so is the separation of church and state. Freedom of religion also equates to freedom FROM religion. And I don't care what religion it is, Allah, Buddha or Jesus, students should have the reasonable expectation of being to attend a public school without being proselytized to. That's the real issue here.

Michael C
Michael C

I'm leaning a bit more toward the parents overreacting, but I'll agree with you.

And how much is all this costing us as taxpayers when what little money is left for public  education should be going to more worthwhile causes than lawyers. 

I'm not really impressed with the "Christian" attitude and lives that these parents are living. I'm assuming they can't convert others by example (living a Christian life and setting a good example) so they have to send their preteen kids out to school to do the job for them.

Montemalone
Montemalone

If it had been a piece of toast with his face...

Mike
Mike

It's not that they don't have any rights, but that the school can take some action to limit activity when connected with the school.  The judges perceived the activity as one on one, not an overt activity where the student attempts to exploit school resources (newspaper, field trip) to make a statement.  The principal also messed up by saying it was allowed if not religious.  You can't make it a violation if children give it each other items.  I expect the person suspended broke the rule of no banners except approved by the school. 

You could make a rule that would be legal that the teacher has to approve every sharing of items in the classroom, but would you want teacher to enforce it.

Montemalone
Montemalone

Wrong.

A few religious freaks in the government forced god on us.Altered the Pledge of Allegiance. Mandated prayers in schools.

If you want to believe in baby jeebus, do it on your own time and away from me.

MattL1
MattL1

You can't like your own comments.  I've tried.

Scruffygeist
Scruffygeist

There's money in that? Sweet! Less than 300 away from my $200. I'm as surprised as anyone that I get even 1 like.

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