Kelley Baker kbaker@hslegalfirm.com
Karen Haase khaase@hslegalfirm.com @KarenHaase
Steve Williams
Bobby Truhe
swilliams@hslegalfirm.com
btruhe@hslegalfirm.com @btruhe
U.S. Supreme Court Declines Review in “Candy Cane” Case At several presentations over the last year, we have discussed the “Candy Cane” litigation in which students claimed that the Plano, Texas school district violated their First Amendment rights when the school prevented them from distributing religious materials at school. After eight years in litigation, the U.S. Supreme Court refused to review the case last week, which means that the lower court’s decision stands. The case of Morgan v. Swanson originated in 2003 when a third-grade student brought candy cane-shaped pens to school to hand out to his classmates during a “winter party.” The pens had religious messages attached to them, explaining the Christian origin of candy canes. The school principal confiscated the pens and informed the student’s parents that all gifts with a religious nature were prohibited. The principal also told parents that students could not use the term “Christmas” during any school activity. Another student was also prevented from passing out goodie bags, which contained “Jesus is the Reason for the Season” pencils in them, while an entire elementary classroom was told that they could not write the phrase “Merry Christmas” on cards to American troops serving in Iraq. Later in the year, school officials prevented a second-grader from passing out Passion play tickets and pencils with the message "Jesus loves me this I know for the Bible tells me so" on school grounds. A group of parents sued, claiming that their students’ right to free expression under the First Amendment had been violated. The school defended the case, arguing that elementary students (as opposed to high school students) do not have First Amendment rights while at school. The United States Court of Appeals for the Fifth Circuit held that elementary students do, in fact, have First Amendment rights while at school. The court ruled that the principals were within their rights in stopping the candy canes, but found the other restrictions on student speech to be unconstitutional. However, due to the unsettled nature of this area of the law, the court granted immunity to the principals involved.
This case has become a rallying point for some Christian groups which are concerned about free religious expression in public schools and students' rights to distribute religious literature. School officials should be prepared for an increase in the number of students who want to distribute these sorts of materials. Schools must scrupulously protect students’ rights to free expression while at the same time avoiding any perception that the school is itself endorsing a particular religious view. When you have any doubt, you should contact the school’s legal counsel before deciding how to deal with the proposed distribution of religious materials at school. In this case, although the school did not have to pay any legal judgment, it did bear the financial and political cost of eight years of bitter litigation. If you have any questions or concerns regarding the First Amendment or any other issue, please contact your school attorney or Kelley, Karen, Steve, or Bobby. I:\3\7613\E-mail Updates\126 Candy Cane Case.doc