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The Candy-Cane Cops

Posted By Hans von Spakovsky On December 13, 2011 @ 4:00 pm In Featured | Comments Disabled

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.


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