(CN) – In a sprawling reversal, the full 5th Circuit said two school principals in Texas have immunity from claims that they violated the Constitution by barring children from swapping religious gifts, including Christian-themed candy-cane pens. A separate majority of the court ruled that the principals’ conduct had been unconstitutional.
The dispute arose when the Plano Independent School District barred children from distributing religious-themed items as part of a goodie bag exchange during winter break parties.
Some of the banned goods included pens shaped like candy canes that came with a card explaining 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 the three stripes symbolize Jesus’ blood or the Trinity.
Another student was blocked from handing out tickets to her church’s passion play, which represents scenes from the passion and crucifixion of Jesus. She also tried to pass out pencils with the inscription, “Jesus loves me this I know for the Bible tells me so.”
When the parents of these children filed suit, the current principal of Thomas Elementary School and the former principal of Rasor Elementary School moved to dismiss on the basis of qualified immunity.
A federal judge denied their motion, and a three-judge appellate panel affirmed that finding in November 2010, rejecting the administrators’ argument that the First Amendment does not apply to elementary school students.
“It has been clear for over half a century that the First Amendment protects elementary school students from religious-viewpoint discrimination,” Judge Jennifer Walker Elrod wrote for the court on Nov. 29.
In January, the New Orleans-based court granted a rehearing en banc. The full court’s decision said the principals do in fact have immunity since a “complicated body of law,” presenting “a number of competing First Amendment imperatives,” is not clearly established.
“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,” according to the lead opinion authored by Judge Fortunato Benavides.
In a fifth section of the decision not joined by the majority, Benavides said this holding of immunity gives the court “discretion to decline entirely to address the constitutionality of the defendants’ conduct.”
The 16-judge court produced 100 pages on the case, including the lead opinion, six separate concurrences and a separate majority opinion.
Elrod, who wrote the original panel decision, authored the 43-page separate majority opinion that said the principals’ conduct had been unconstitutional. Four judges joined the opinion in full, and five judges joined only parts of one section.
“We are not unsympathetic to school administrators who have to make numerous difficult decisions about when to place restrictions on speech in our public schools,” Elrod wrote. “Certainly, there could be some gray area where the administrator should get the benefit of the doubt in such situations. However, the four incidents in this case are nowhere near the gray area. If we accept the principals’ argument in this case, where the speech is so far from the realm of school-sponsored speech, then it is difficult to imagine a case where the law will be sufficiently clear to overcome immunity. The result would be that in every case involving religious discourse, schools officials could merely throw their hands up in bewilderment, claim ignorance or confusion, and freely censor private religious speech without consequence. The principals’ position in this litigation is extreme: at oral argument, when asked what rights students clearly have regarding religious speech, counsel for the principals replied that he did not know. This is not only unacceptable, it is unreasonable. A reasonable school official is presumed to know the law. It is clearly established law that viewpoint discrimination is verboten.”
Elrod closed with a reflection on religious liberty and the Founding Fathers, noting in a footnote that First Amendment is derived from the Virginia Statute of Religious Freedom introduced by Thomas Jefferson in 1779.
The families’ claims against the Plano School District were dismissed years ago, a decision the 5th Circuit affirmed in December 2009.