Right before Christmas, Liberty Institute filed a writ of certiorari with the U.S. Supreme Court in Morgan v. Swanson, (known nationwide as the “candy cane” case), asking the Court to hold government officials accountable for violating students’ First Amendment rights.
Liberty Institute filed the petition on behalf of Plano ISD students. Liberty argues that the students were banned by school officials in 2003 from distributing candy cane pens, pencils and other gifts containing religious messages to classmates during non-curricular activities and after school. Liberty calls it “a clear violation of their constitutional rights to free speech and free exercise of religion.”
“Every school official knows that engaging in religious viewpoint discrimination against students is unconstitutional,” said Kelly Shackelford, Esq., president/CEO of Liberty Institute. “Saying that school officials can engage in such religious discrimination without any responsibility is not the law and would send exactly the wrong message to millions of school children and their families.”
The petition asks The Supreme Court to review a deeply divided en banc decision of the Fifth Circuit U.S. Court of Appeals, which narrowly granted two school officials, Lynn Swanson, Principal of Thomas Elementary School, and Jackie Bombchill, Principal of Rasor Elementary School, qualified immunity, despite numerous constitutional violations.
While recognizing that the school officials violated the Constitution, a majority of the court determined that the law, however, was not clearly established enough to hold them responsible. In July 2010, a unanimous panel of the Fifth Circuit denied the school officials qualified immunity, recognizing that the law prohibiting viewpoint discrimination is clearly established and also rejected the school officials’ argument that elementary school students have no First Amendment rights.
Former U.S. Solicitor General Paul Clement, who will argue what Liberty calls the “Obamacare” lawsuit in the Supreme Court in March, serves as co-counsel with Liberty Institute and argued the case alongside former U.S. Solicitor General Kenneth Starr [now president of Baylor] at the Fifth Circuit U.S. Court of Appeals in September. Clement also co-wrote the petition for review to The Supreme Court.
After eight years in litigation, the candy cane case has come to symbolize what many call “the war on Christmas.” Since 2003, the case has affected change throughout the nation, reshaping school district policies, influencing changes to state law, evoking questions about religious expression in schools and forcing the examination of student’s First Amendment rights. By taking the case, the U.S. Supreme Court would likely clarify the law nationwide, which affects over 40 million students.
Liberty Institute is a non-profit legal firm that works to restore and defend religious freedoms in schools, churches and the public arena. Visit http://www.libertyinstitute.org/ or http://www.CandyCaneCase.com for more information.
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