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  • The Candy-Cane Cops

    People who are supposed to be teaching our children civics want to deny them the protection of the Constitution.

    It’s known as the candy-cane case. And it’s all about religious discrimination.

    The Fifth Circuit Court of Appeals will hear oral arguments today [May 23, 2011] in Morgan v. Swanson. The case demonstrates just how badly political correctness has corrupted our public schools and illustrates the extremes to which radical school administrators will go to impose their ideological, anti-religious views on our children.

    The lawsuit was filed by the families of several elementary-school students in Plano, Texas. The suit states that, although the schools hold birthday and “winter break” parties, no Christmas parties are allowed. Moreover, the schools ban all “references to and symbols of the Christian religion and the celebration of the Christian religious holiday, Christmas,” at the winter-break parties. Even “red and green Christmas colors” are banned. And students were explicitly instructed “not to write ‘Merry Christmas’ on greeting cards sent to United States soldiers [or to retirement homes] because that phrase might be offensive.”

    Apparently the schools never considered that such rigorous censorship might be offensive. Indeed, they went further. Students were allowed to exchange gift bags at the winter-break parties. However, the suit alleges, “students and parents [were] interrogated by school officials…as to whether or not the contents of their gift or ‘goodie’ bags…contain any religious viewpoint, religious references or religious message.” If they did, the bags were confiscated by school officials.

    One student’s bags were seized because they contained pencils inscribed with the phrase “Jesus is the Reason for the Season.” Another student was banned from giving his friends candy-cane-shaped pens with a laminated card entitled the “Legend of the Candy Cane,” which explained the Christian origin of candy canes. Another student, “during noncurriculum times and with no material and substantial disruption to the operations of the school,” was giving her friends tickets to a free Christian drama production at her church. Principal Jackie Bomchill ordered the tickets confiscated and destroyed because they “expressed a ‘religious’ viewpoint.”

    One student’s mother asked for a meeting with Bomchill to get prior approval for her daughter to give her friends two pencils at her own birthday party during lunch recess, one inscribed with the word “moon” and the other with the phrase “Jesus loves me this I know for the Bible tells me so.” Instead of engaging in a calm discussion, the principal handed the mother a letter threatening that “law enforcement officials” would be called to arrest her and told her that the Jesus pencils could only be distributed “outside of the school building.” However, when the daughter attempted to do just that, outside of the school building, Bomchill grabbed her, took the pencils, and berated her. Bomchill told the mother her daughter would be “kicked out of school” if she made any further attempts to distribute religious items. School officials even called the police, who pulled over the mother on her way home.

    Since these events, the school district and the principals have only compounded their errors. Rather than acknowledge that they made a mistake, apologize, and change their discriminatory policies, they have spent over a million taxpayer dollars fighting this lawsuit all the way up to the federal appeals court. In fact, they claim that they did nothing wrong and should be granted “qualified immunity” because “the First Amendment does not apply to elementary school students” and the “Constitution does not prohibit viewpoint discrimination against religious speech in elementary schools.” And these are the people teaching civics to our children!

    As a three-judge panel of the Fifth Circuit wrote in its review of the case, “It has been clear for over half a century that the First Amendment protects elementary school students from religious-viewpoint discrimination.” This issue was decided in West Virginia State Board of Education v. Barnette, a 1943 decision of the Supreme Court. The Court recognized that school officials are subject to the Constitution and that the Free Speech Clause of the First Amendment is no exception. Students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.” As the Court pointed out in Barnette, the fact that school officials “are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

    The Texas school district has tried to argue that the Barnette decision really doesn’t say what it says, or that it doesn’t really apply to elementary schools because supposedly there is no evidence that the plaintiffs in that case were elementary-school students. In a delicious irony, former U.S. solicitor general Ken Starr has filed an amicus brief on behalf of the Barnette sisters, the plaintiffs in the 1943 case.

    The two sisters, now in their seventies, were elementary-school students in West Virginia at the time. As practicing Jehovah’s Witnesses, they believed that pledging allegiance to the flag was a form of prohibited idol worship. After declining to participate in that ceremony, they were expelled from school. The sisters’ family took their challenge all the way to the Supreme Court and won. As their amicus brief says, the Plano school district is trying to “unravel decades of clearly established law” and to “unwisely turn back the clock to an era in this nation’s history when religious bigotry was often tolerated in the public schools.”

    What is worrisome about this case is that the Fifth Circuit granted en banc review after its own three-judge panel clearly reached the correct decision when it ruled against the school district and these intolerant principals. We may hope that the entire court will not overturn this panel decision or grant immunity to the school officials for their biased and inequitable behavior. This case is a clear example of how the extreme liberal view that nothing may be said or done that could somehow, possibly “offend” anyone leads to gutting the First Amendment and destroying our free-speech rights.

    Hans von Spakovsky is a senior legal fellow at the Heritage Foundation’s Center for Legal and Judicial Studies.

    UPDATE: On September 29, the Fifth Circuit Court of Appeals held that the restrictions imposed by the teachers and school principals in the Plano Independent School District in Texas barring elementary school children from “distributing written religious materials while at school” was unconstitutional and a violation of the children’s First Amendment rights. However, the court provided the school officials with qualified immunity because it said that answering the question of whether they had acted improperly required “recourse to a complicated body of law that seeks, often clumsily, to balance a number of competing First Amendment imperatives [and t]his body of law failed to place the constitutionality of the defendants’ conduct beyond debate.” The parents in the case are appealing the grant of qualified immunity, since it lets the school officials off the hook; their brief is due at the Supreme Court on December 26—a very appropriate date, given that the kids were barred from distributing anything that mentioned Christmas.

    *This post was first published in NRO.

    Posted in Featured [slideshow_deploy]

    7 Responses to The Candy-Cane Cops

    1. Call Me Mom says:

      Students may not "shed their Constitutional Rights" at the schoolhouse door, but you would be hard pressed to prove that they are not being denied the ability to exercise those rights. Particularly in regard to being interrogated by school personnel about possible criminal offences.
      Do we really wonder about the college students participating in the occupy protests when they have been subjected to hypocrisy regarding their rights for their lifetimes? If we don't step up to the plate, as adults and rectify this situation, our nation will be lost. http://americanfederalist.blogspot.com/2007/01/in

    2. DougRagan says:

      Someone please tell the public school system that the majority of Americans are offended by incredible stupidity.

    3. Riley says:

      Heavily censoring this from students tends to have the opposite effect, as time has shown. It only piques their interest and the pendulum swings the other way for the religious/secular fight.

      I think the primary reason this is so pursued is the fear government officials have of getting sued by anti-religion groups – it's easier to (or has been until now) to just say NO religion on school grounds instead of making intelligent decisions about the 1st amendment and its application in schools.

      In a way, it is laziness. But I hope that government officials will now be forced to truly do what they are paid to do – make informed decisions and provide an example to students about what leadership is, instead of just taking the least risky route.

    4. Bobbie says:

      It's the drastic overreaction when the offense is not apparent and time is consumed. There's absolutely no mention of any religion and it isn't fair to put any on the name Jesus when He the Man, didn't preach or promote one. If people want to be offended for attention they will and people in authoritative positions are the center of attention displaying cowardly weakness in the name of the most historically peaceful Man on earth. Where is the line of expected tolerance and mature behavior of these adult authoritative abusers? NO WHERE? These adults are teaching the youth intolerance at tax payers expense! Non productive costs out of our control.

      There is absolutely no reason the history of the Man Jesus can't be taught in public schools. Different for Mohammad, he preached a religion. The reaction and policies to political correctness are creating a country of insecure people at a cost in more ways than one. What minority of Americans want this representing them? They need to grow up!

    5. Dan says:

      When I read these articles, which are more and more prevalent every day, not to mention all the other atrocities that take place in our schools, I have to ask myself if every single teacher in this school believes this way? If not , why are they not standing up to the administration for these children's rights? With these damn unions they can't be afraid of losing their jobs. Maybe when you get your accreditation as a teacher, you should be required to take an oath, much like a doctor, that starts out with, " First do no harm".

      • Porter says:

        I can tell you that not every teacher feels the same way. It's not a union issue as teacher unions in Texas aren't the power they are in other states. The issue is usually the threat of lawsuits from a parent. At that threat, administrators bend over to do anything to avoid it including violating the rights of other kids and families. Teachers don't speak out because their annual contract can be canceled by the district and they lose their job. That follows them to other districts and teaching jobs.

    6. Leon Lundquist says:

      Thanks Hans, for the update. It just goes to prove that no matter how much Over Control you give these Progressives they always want more. I have come to believe that it is the plan of our Domestic Enemy to bring the United States Government to such a dispicable state of ill repute that Americans will willingly give up our Constitutional Representative government in favor of a small d democracy, the like of which we see in Europe. I see a conspiracy to undermine America. To back that up there are Bills perpetually introduced that are anathemas to American style democracy. to make to Presidential Election subject to a popular vote. It reminds me of the 10th Amendment Violation when the Senate was made a popular election choice rather than as the Founders intended, Senators are selected by the State Legislatures. Sure enough the States lost enormous power and it has resulted in the present Senate, which refuses to do its job. Sickening, really.

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