Texas Law Claims Won’t Stick in Candy Cane Case

(CN) - A school district had insufficient notice that its ban on Christian-themed gifts might spur religious discrimination claims under Texas law, the 5th Circuit ruled.

Doug and Robin Morgan say that Thomas Elementary School principal Lynn Swanson barred 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."

Before joining three other families in a federal complaint against the Plano Independent School District, the Morgans notified Swanson and several district officials of possible litigation to protect their son's religious expression.

The Morgans' attorney sent their letter by fax, U.S. mail and email in December 2003, a year prior to initiating the lawsuit.

Six years into the legal battle , the school district moved for partial summary judgment.

It highlighted that the family made several claims under the Texas Religious Freedom Restoration Act (TRFRA), which requires presuit notice by certified mail with return receipt requested.

Though a federal judge concluded in 2012 that the three other families failed to give proper notice under TRFRA and thus could not advance such a claim, the notice that the Morgans gave passed muster with the court.

A divided three-judge panel of the 5th Circuit disagreed last week, however, as to the Morgans.

"While plaintiffs request that we certify to the Texas Supreme Court whether this pre-suit notice requirement is jurisdictional, we find the statute clear and are satisfied that the Texas Supreme Court would apply the statute as written," Judge W. Eugene Davis wrote for the majority. "Because it is undisputed that the Morgans' demand letter did not comply with the jurisdictional pre-suit notice requirements, PISD's governmental immunity is not waived."

Judge Jennifer Walker Elrod wrote in dissent, "I am not so satisfied."

Elrod noted that she would certify the case to the Texas Supreme Court, rather than guess how the state's high court would rule. Her dissent highlights previous decisions by the Texas Supreme Court that she says conflict with the opinion of her fellow panel members.

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