Supreme Court turns away case about free speech rights of elementary students

The U.S. Supreme Court on Monday turned down its latest opportunity to rule on the free speech rights of public school students. The move makes final a federal appeals court decision in the case of elementary school students who were prohibited from passing out religious materials.

The high court declined to hear a further appeal in the case, following its normal practice of not explaining why.

The case stems from a 2003 incident in which a third-grader at Thomas Elementary School in Plano, Texas, was prohibited from passing out candy cane pens at a winter party. The pens were attached to a written message, The Legend of the Candy Cane, claiming that candy canes represent Jesus.

The message ends with, “So, every time you see a candy cane, remember the message of the candy maker: Jesus is the Christ!”

A student at neighboring Rasor Elementary School was prevented from distributing tickets to a religious play and pencils with the phrase, “Jesus loves me this I know for the Bible tells me so.”

The students and their parents sued the school district and the principals of their schools, claiming the actions violated their First Amendment rights. Lawyers for the district argued that school officials should be entitled to “qualified immunity” – a legal doctrine under which government officials are immune from lawsuits unless they violate rights that are “clearly established.”

The school argued that the law was unclear as to whether elementary students are entitled to the same free speech protections that older students have under the landmark Tinker case.

A federal judge disagreed, as did a three-judge panel of the 5th U.S. Circuit Court of Appeals in 2010. The panel ruled that “it has been clear for over half a century that the First Amendment protects elementary school students from religious-viewpoint discrimination(.)”

However, the school district appealed again – this time to the full Fifth Circuit, which in September voided the earlier ruling and sided with school officials.

A majority of the appeals court’s judges found that it was not clear whether Tinker or the standard for “school-sponsored” speech – Hazelwood v. Kuhlmeier – should apply to the distribution of materials in an elementary school. They also held it was unclear how Tinker might apply to elementary students, and whether the First Amendment’s Establishment Clause might require a ban to prevent the school from being seen as endorsing a particular religion.

“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,” the court ruled.

The court went further, however, opting to decide the merits of the case in order to clarify the law for future disputes.

First, the judges made clear that elementary school students are entitled to First Amendment rights under Tinker – that is, they are allowed to express themselves provided they don’t materially and substantially disrupt school or invade the rights of others.

The court also ruled that Hazelwood does not apply to any of the speech at issue in the case, because no one would mistakenly attribute the speech to the school. Hazelwood, the court said, should be interpreted as a narrow exception to student First Amendment rights.

“Accordingly, we hold that the First Amendment protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech,” Judge Jennifer Elrod wrote for the majority.

The Supreme Court’s decision not to become involved leaves that decision in place. It is now binding precedent in the Fifth Circuit states of Texas, Mississippi and Louisiana.

Despite nine years of litigation, the case is continuing on other issues still before the district court and the Fifth Circuit.