Final Candy Cane Claims Melt After 8-Year Thaw

     SHERMAN, Texas (CN) - A federal judge cleared the last school official in an 8-year-old court battle over a ban against students who wanted to freely distribute religious gifts at school.
     Doug and Robin Morgan say that Thomas Elementary School principal Lynn Swanson sided with a teacher who stopped their son from passing out candy cane pens during a holiday party. The pens were attached to Christian-themed cards describing "The Legend of the Candy Cane."
     The Morgans were among four families that took on the Plano Independent School District and several school officials for violations of their children's First Amendment rights.
     After a full panel review, the 5th Circuit ruled in September 2011 that Swanson and a fellow principal had qualified immunity, though a separate majority found their conduct unconstitutional. Judge Fortunato Benavides authored the lead opinion.
     Swanson continued to face an additional claim, however, because Doug Morgan said she violated his free-speech rights as an adult when she barred him from passing out the candy cane cards to other parents.
     U.S. District Judge Richard Schell dismissed the final claim against Swanson on Wednesday finding that the principal has qualified immunity.
     Schell's order adopts the September 2012 report and recommendation issued by U.S. Magistrate Judge Don Bush.
     "After wading through this case for several years, the court takes some license in making a few observations," Bush wrote. "Swanson probably overreacted to Doug Morgan's request. But she was not alone. The PISD also overreacts to these situations. But the parents are not without blame also. There is just no happy medium in what, as Judge Benavides noted, was a balancing act.
     "Unfortunately, much of the confusion over the years has resulted from conflicting judicial decisions carving one exception to First Amendment guarantees only to find an exception to that exception. Schools, in response to an ever-evolving body of law, have reacted with policies trying to comport with whatever constitutional imperative confronts them. All parties are then aggrieved. One believes that the very heart of our First Amendment has been cut out; the other fears backlash from those who would not countenance religious speech with the strident cry of 'thou shall establish no religion.' Ultimately, the courts have done what the court in Shanley v. Northeast Independent School District warned against - become involved in the day-to-day operations of the schools. Based on what the Fifth Circuit has already held in Swanson's qualified immunity appeal, the court finds that plaintiff Morgan's claims should be dismissed." (Italics in original.)
     The individual defendants filed an unopposed motion in January to have the court certify their dismissal orders as final.
     "This finality would allow the court to move forward into the discovery and possibly trial phase against Plano Independent School District without the concern about the possibility of having to re-try the case," the motion states.