It’s Xmas… wait, make that Christmas… in July for elementary school students’ rights

A federal appeals court has handed Texas schoolchildren an early holiday gift — and, thanks to the court, they can actually call it a “Christmas present” out loud.

The Fifth Circuit U.S. Court of Appeals, in a decision released July 1, ruled 3-0 that “it has been clear for over half a century that the First Amendment protects elementary school students from religious-viewpoint discrimination(.)” The ruling involved the intertwined claims of three students who claimed that administrators at Plano’s Thomas Elementary School and Rasor Elementary School prevented them from distributing Christian-themed goodie bags and literature to their classmates.

The ruling in Morgan v. Swanson comes at a preliminary but crucial phase of the students’ First Amendment case. Government employees often succeed in having all (or substantially all) of an injured party’s constitutional claims thrown out of court at the starting gate, because of a legal doctrine called “qualified immunity.”

To gain immunity, the government official must show that — regardless of whether he did or did not commit a violation — his conduct did not defy legal standards that were “clearly established” at that time. If no “clearly established” law was violated, then the government official cannot be forced to pay money damages — which can leave the plaintiff with the prospect of an empty victory.

That is the maneuver that the principals of Thomas and Rasor attempted before the Fifth Circuit. Their lawyers argued that no Supreme Court or Fifth Circuit ruling expressly says that the free-speech rights recognized at the high-school and middle-school level in the Supreme Court’s landmark 1969 Tinker case apply to children as young as elementary school.

In an opinion authored by Judge Jennifer Walker Elrod, the Fifth Circuit made short work of the principals’ argument. Nothing in Tinker, or in any Supreme Court case applying Tinker, suggests an age-qualification for free-speech rights, the judges said. Based on Tinker and forty years of caselaw applying it, the principals “had fair warning that the suppression of student-to-student distribution of literature on the basis of religious viewpoint is unlawful under the First Amendment with respect to elementary school students,” the court held.

The ruling is significant, because federal courts typically hesitate to hold school officials personally liable for even the most egregious disciplinary overreaching. The deference tends to be greater when dealing with younger children, whose speech arguably is less valuable to the public discourse than that of 17-year-olds. So the court had to be unfailingly certain that Tinker‘s protection extends to the lowest grades, and that no reasonable principal could have believed otherwise. (One hopes that this is a principled First Amendment decision that would have come out the same way had the speakers been Buddhists, or atheists, and not an expedient decision based on the judges’ identification with the pro-Christian sentiment. The Supreme Court’s enthusiasm for student speech rights is suspiciously prone to vacillation based on the justices’ ideological support for the speakers’ message.)

If the allegations in the complaint are true — and at this point they are just one side’s unproven assertions — Plano school officials engaged in rank bullying behavior of the type that administrators eagerly punish when it is exhibited by 15-year-olds. The complaint alleges that Rasor school officials threatened to kick a child out of school, and threatened her mother with arrest, if the child continued to distribute pencils with a Christian message at school, and that the principal even confiscated one of the pencils and upbraided the child as she distributed them on the sidewalk after school hours.

It seems quite unlikely that the principals can prevail so long as the applicable legal standard is Tinker, which protects student speech unless it is unlawful (libelous, threatening, obscene) or incites substantial disruption of school. Even the most talented school attorney will have difficulty establishing that receipt of a “Jesus is the reason for the season” pencil threatened to ignite third-graders to riot.

Because the facts (albeit at this very early stage) seem so unpromising for the schools, their only hope may be to convince the Fifth Circuit to reconsider its qualified immunity ruling, or to persuade the Supreme Court to take it up. Lawyers for the principals told McClatchy Newspapers that both options are under consideration.