Plano principals immune from damages in candy cane suit

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by TERRY WALLACE

Associated Press

Posted on September 28, 2011 at 6:24 PM

Updated Wednesday, Sep 28 at 6:59 PM

DALLAS (AP) — A federal appeals court says two Plano elementary school principals are immune from liability for stopping students from handing out Christian candy cane pens and other on-campus religious expressions, a federal appeals court ruled Tuesday.

By a 10-6 vote, the full 5th U.S. Circuit Court of Appeals in New Orleans agreed that school principals Lynn Swanson and Jackie Bomchill had qualified immunity from being assessed damages for their actions. That reversed lower-court rulings that would subject Swanson and Bomchill, individually, to damages.

However, a 10-6 majority held that the principals went too far and may have violated the children's free-speech rights.

Four families with students in Plano schools sued in 2004, claiming their children had been banned from handing out pencils saying "Jesus is the reason for the season," candy canes with cards describing their Christian origin, and other religious materials.

The school principals argued that the First Amendment's freedom of speech protection does not extend to the distribution of non-curricular materials in public elementary schools.

In a 44-page majority opinion, Circuit Judge Fortunato P. Benavides ruled that existing court precedents have not established the constitutionality of the educators' actions "beyond debate."

"The law tasked them with maintaining the most delicate of constitutional balances: between students' free-speech rights and the (U.S. Constitution's) Establishment Clause imperative to avoid endorsing religion. But it failed to provide any real, specific guidance on how to do so," Benavides wrote.

Furthermore, "no federal court of appeals has ever denied qualified immunity to an educator in this area. We decline the plaintiffs' request to become the first," he wrote.

However, the 16 judges of the full court realigned over the issue of whether the students' free-speech rights might have been violated.

"This appeal may only involve two students and two principals in a suburban school district in Texas, but it concerns conduct that strikes at the very heart of the First Amendment — discrimination against student speech solely on the basis of religious viewpoint," Circuit Judge Jennifer Walker Elrod wrote in a separate 44-page majority opinion.

The principals were relieved to have been found immune from liability, said their attorney, Tom Brandt of Dallas.

"I'm, of course, very pleased with that ruling. It's been a long, hard fight. They're both very happy with the answer to their prayers," he said.

The Plano-based Liberty Institute, which represented the parents and their children, found a hollow victory in the two-pronged ruling.

"We are encouraged that the court ruled that the principals did indeed violate the Constitution by censoring the religious speech of students," attorney Hiram Sasser said. "However, we are disappointed that the court decided not to hold the school principals responsible for their violations of the law. The court sent the wrong message to students that those responsible for teaching them good citizenship are not held responsible for violating the law."
 

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