By Manuel Quinto-Pozos
Last week we filed an amicus brief in support of students in the Plano school district who wanted to include religious messages in holiday gift bags.
Although the ACLU of Texas is not representing the students, we decided that the issue of students’ First Amendment rights is of such importance that we should file an amicus brief supporting the earlier decisions that require that this lawsuit be allowed to proceed.
The brief by the ACLU of Texas, which was written on our behalf by Ryan Pittman, Kurt Schwarz, and Paul Watler of the law firm Jackson Walker LLP, argues that a number of cases by the U.S. Supreme Court and Federal Courts of Appeals throughout the country have prohibited school administrators from censoring private student speech based on the content or the viewpoint that the speech contains, even when that speech is by students as young as elementary schoolchildren. Additionally, a long history of cases has made it clear that speech that is religious in nature can only be regulated for very compelling reasons. Therefore, the brief argues, it should have been clear to the school officials that what they were doing when they censored religious student speech implicated the students’ constitutional rights.
Here is a brief description of the facts and procedure of the case, as well as the arguments presented in our brief:
The plaintiffs claim that, between 2001 and 2004, several elementary school principals in the Plano Independent School District prevented students and parents from including religious messages in gift bags traditionally distributed by schoolchildren to other students during annual non-curricular “winter break” parties and during students’ “half-birthday” parties. The messages singled out for censorship were all religious and specifically Christian, and included pencils marked with the words “Jesus is the Reason for the Season,” “Jesus loves me this I know for the Bible tells me so,” and a narrative explaining the Christian origin of candy canes. The plaintiffs and other children and parents were allowed to distribute gifts and non-religious messages during the same parties. Additionally, elementary school administrators prevented children from distributing, outside of instructional time, other religious materials, such as invitations to church plays and other events.
Represented by Kelly Shackelford, Jeffrey C. Mateer and Hiram Sasser III of Liberty Institute in Plano, the students and their parents sued the principals and the school district. Because of the way the case has navigated through the courts, the principals have not had to officially respond to the allegations or to justify their reasoning. Instead, they have said they are protected by “qualified immunity,” essentially arguing that either: (1) the actions that they are accused of committing do not amount to a constitutional violation, or (2) an official in their shoes would not have known at the time that those actions would be unconstitutional because such a conclusion was not “clearly established.” The trial court rejected the principals’ argument. The principals appealed the case to a panel of three judges in the U.S. Court of Appeals for the Fifth Circuit, which also rejected the argument. The principals then asked the entire court to reconsider, and the court agreed. Plaintiffs’ counsel also includes Wm. Charles Bundren of Frisco, TX; Clyde Moody Siebman and Larry Phillips of Siebman Reynolds Burg and Phillips LLP of Sherman, TX; and Paul D. Clement and Ashley C. Parrish of King & Spalding LLP of Washington, D.C.
Of course, the brief also recognizes that school administrators can act to address valid concerns, such as a reasonable anticipation that there will be a material and substantial disruption to the school, that the speech in question may be mistakenly attributed to the school, or that the students may be proselytizing to an unwilling captive audience. However, it’s too early in this lawsuit to tell what those concerns could have been, and our brief argues that the case should be allowed to proceed so that both the students and the officials can present all the evidence and arguments.