June 12, 2012: Without comment, the U.S. Supreme Court declined yesterday to review a federal appeals court ruling that found the free-speech rights of elementary school students were "likely violated," but that cited school administrators were immune from liability because those rights were not clearly established.
The case involves the distribution of religiously themed candy canes and pencils with messages like "Jesus is the Reason for the Season" or "Jesus loves me, this I know, for the Bible tells me so." Another incident involved a student distributing free tickets to a Christian "passion play" during non-curricular free time. Both incidents occurred at two schools in the Plano (Texas) Independent School District (PISD).
Mark Walsh covered the long-running litigation for Edweek:
The full U.S. Court of Appeals (5th Circuit, New Orleans) had ruled last September that based on facts alleged in the suit, two school principals likely violated the rights of two students who were barred from distributing the religious-themed items.
The First Amendment "protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech," the 5th Circuit court majority said in a 9-7 ruling. "Therefore, the principals' alleged conduct—discriminating against student speech solely on the basis of religious viewpoint—is unconstitutional under the First Amendment."
However, a separate majority on the appellate court held that the two principals were entitled to qualified immunity from personal liability in the lawsuit because it was not clearly established that administrators lacked authority to bar student speech based on a religious viewpoint.
"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," one 5th Circuit judge said in that part of the decision.
Both sides in the case filed appeals with the Supreme Court.
The parents, represented by Supreme Court litigator Paul D. Clement (former Solicitor General 2005-2008), argued that the case would be a good vehicle to clarify the law about the free expression rights of students, especially with regard to religious speech.
The parents' appeal drew several friend-of-the-court briefs, including one from four former U.S. attorneys general and three former U.S. secretaries of education.
...The full 5th Circuit noted last September that its decision that the First Amendment rights of the two students were likely violated applied to only two out of several incidents detailed in the parents' lawsuit. "The case now before us represents a relatively small part of the plaintiffs' larger suit," one of the 5th Circuit's judges said at the time. "The] various claims are proceeding in pieces. ... This is not our first word on the issues in this case, and it will likely not be our last."
Reported for California's Children by Elizabeth J Carlyle.