(CN) – The 5th Circuit agreed to grant a full panel review of a case against two Texas elementary school principals for allegedly violating the Constitution by barring students from swapping religious gifts, including Christian-themed pens shaped like candy canes. The court will reconsider whether elementary school students were properly found to have First Amendment rights.
In November, a federal appeals panel from New Orleans refused to dismiss the religious discrimination claims against principals Lynn Swanson and Jackie Bomchill on the basis of qualified immunity.
The 5th Circuit had rejected Swanson and Bomchill’s argument in that ruling 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.
The families of four students in the Plano Independent School District sued after their children were barred 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 pencils with the inscription, “Jesus is the reason for the season.”
In an effort to streamline the appeals, the federal judge separated the claims against the school district from those against the principals.
The 5th Circuit found the bifurcation “commendable in concept” but “perverse in execution,” because the lower court had ruled for the school district but not the principals.
Though the November ruling rejected the principals’ motion to dismiss, a different three-judge panel ruled upheld the judge’s ruling for the school district in December 2009.
But the panel noted in November that its ruling was limited and “does not preclude the district court from granting qualified immunity in this case should the facts demonstrate that this is other than non-disruptive student-to-student speech.”
This court is not tasked with determining whether [school officials] actually engaged in religious-viewpoint discrimination … at this juncture,” Elrod wrote in November. “Nor is this court tasked with drawing the line at which student speech may be properly censored because of its potential to disrupt the classroom, or because of its potential to subvert the school’s educational mission.”