Judge Says Candy-Cane Case Should Press Ahead

     SHERMAN, Texas (CN) – Three families should advance claims that a school district violated free-speech rights by barring children from handing out religious gifts, a federal judge said.



     “The story begins with a simple candy cane and, like the message conveyed, has no end,” U.S. Magistrate Judge Don Bush said in a Wednesday report and recommendation.
     After Plano Independent School District prohibited students from passing out religious gifts, including candy-cane-shaped pens bearing Christian-themed messages, four families filed a 2004 federal complaint against the school district and two principals.
     The court bifurcated the case, separating the claims against the district and the principals.
     After a full panel review, the 5th Circuit ruled in September 2011 that the principals had qualified immunity. A separate majority also found, however, that their conduct was unconstitutional.
     Two years earlier, the New Orleans-based court upheld the school district’s modified policy on when students could distribute religious materials. The court said the policy, which the district revised in 2005, was “reasonable and facially constitutional.”
     The court’s latest analysis focuses on the families’ claims against the district for monetary, injunctive and declaratory relief under the Texas Constitution and the Texas Religious Freedom Restoration Act.
     “Nothing about this case is ever simple,” Bush said in a footnote Wednesday, lamenting a case so snarled that a statute-of-limitations finding is complicated by the fact that a family gave notice to the school via fax instead of mail.
     “In some aspects, the free speech provision in the Texas Constitution is broader than that guaranteed by the First Amendment,” Bush wrote. “The question is whether under established precedent the Texas Constitution granted plaintiffs greater rights as to speech than would be recognized under the First Amendment.”
     Supporting his position that the district’s 2004 and 2005 policies are not facially unconstitutional under the Texas Constitution, he noted that the families “have not offered any evidence that the two constitutional provisions should be treated separately.”
     Since the district also ditched its 2004 policy, Bush found “that plaintiffs have no facts to support any as-applied constitutional claims relating to the 2005 policy.”
     Bush recommended granting summary judgment for the Texas Religious Freedom Restoration Act claims for the 2005 policy. But some families should proceed with their claims regarding the 2004 policy as applied, he added.
     The magistrate judge narrowed the group to three since one family failed to assert a claim before the act’s one-year limitation.
     The parties have 14 days to file any objections to Bush’s report.

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