After 10 Years, Immunity Affirmed in Candy Cane Case

     (CN) - The Texas elementary school principal who forbade a parent from passing out religious-themed candy canes at a third-grade party has immunity, the 5th Circuit ruled Wednesday.
     Now entering its 10th year of proceedings, the case stems from a December 2003 winter party at Thomas Elementary School in which a teacher refused to let third grader Jonathan Morgan pass out candy cane pens attached to Christian-themed cards describing "The Legend of the Candy Cane."
     Some Christians believe the "J" shape of a candy cane stands for "Jesus" or the staff of the "good shepherd," and they say the three stripes symbolize Jesus' blood or the Trinity.
     Jonathan's parents and three other couples sued the Plano Independent School District and several school officials over that and similar incidents, but the full 5th Circuit killed most of the claims in a 2011 ruling that awarded the school officials qualified immunity.
     A free-speech claim remained against Lynn Swanson, the Thomas principal who sided with the teacher in the candy cane incident, but trial court dismissed it as well in February 2013.
     Doug Morgan, the boy's father, appealed, claiming he should have been allowed to distribute the religious materials to other parents at the party.
     A three-judge panel with the 5th Circuit affirmed dismissal Wednesday, finding he failed to prove the right to distribute the religious materials "was so clearly established" that Swanson is not entitled to qualified immunity.
     "Where there are no allegations of malice, there exists a 'presumption in favor of qualified immunity' for officials in general, and for educators in particular," the unsigned opinion states. "Courts recognize that school officials have 'a difficult job, and a vitally important one.' For this reason, educators are entitled to immunity unless 'no reasonable official' would have deemed the disputed conduct constitutional."
     Educators are almost always immune from liability in First Amendment disputes unless there a "precise on point" precedent creating an exception, the New Orleans-based federal appeals court said.
     "In the present case, however, there is no legal authority that clearly establishes the asserted right such that Morgan can overcome Swanson's defense," the judges added.
     Though Morgan is "generally" correct that the right to hand out the religious material is clearly established because viewpoint discrimination regarding private speech is unconstitutional, "such a broad generalization is exactly the kind of proposition that will not suffice for the purposes of qualified immunity analysis, as it simply does not provide the official with any sense of what is permissible under a certain set of facts," the opinion states.
     "For example, the nearly universal prohibition against viewpoint discrimination does not inform an official as to what, precisely, constitutes viewpoint discrimination," the judges continued. "Nor does it enlighten a teacher as to the permissible extent of content restriction in a classroom setting. For these reasons, this court has already rejected the viewpoint discrimination principle as 'far too general' to establish the law in this context."
     The panel also disagreed with Morgan's citing of precedent involving the Plano district as a "clear establishment" of the right to distribute the religious gifts.
     Decided in 2001, Chiu v. Plano Indep. Sch. Dist. has a "radically different factual context," according to the ruling.
     It "dealt with after-school meetings whose express purpose was to allow adults to discuss mathematics instruction," the judges noted. "This court held that - regardless of whether the meetings were properly classified as public forum or limited public forum-school officials could not prohibit the plaintiffs from distributing material related to certain curriculum options."