Students Fight for Free Speech

Special Report - May 19, 2011
A federal appeals court is preparing to hear arguments in a case that questions whether the First Amendment right to free speech applies to elementary school students in public schools. All 17 judges of the U.S. Court of Appeals for the Fifth Circuit are scheduled to hear what is being called the “candy cane” case on May 23. It is unusual for all the judges in a circuit to hear a case, which underlines the national impact the outcome of this case will have.

Morgan et al. v. Plano (Texas) Independent School District started eight years ago and is considered one of the biggest religious freedom cases in the nation. Two former U.S. Solicitors General, Kenneth Starr and Paul Clement, have joined the Liberty Institute in arguing the case. The case began eight years ago when the Plano school district was alleged to have engaged in three different cases of viewpoint discrimination in the district’s elementary schools. First, eight year-old Jonathan Morgan was prohibited from distributing candy canes with a poem about Jesus attached to them to classmates during a holiday party. In the second instance, school officials confiscated a girl’s pencils that had the word “God” on them, when she and others were handing them out after school. Finally, the same public school officials banned an entire class of students from writing “Merry Christmas” on cards they were sending to deployed soldiers.

The schools have argued that students’ lack “affirmative speech” rights under the First Amendment, and that students’ First Amendment rights can be restricted to specified times, places, and manners in order to ensure they do not distract from the learning environment of the school, and to avoid the implication that the school is endorsing religion. The district has changed its policy to allow limited distribution of some materials during recess, before school, and during designated parties.

In a legal brief, the Liberty Institute argues, “the law has been clear for decades that school officials may not discriminate against student speech solely because it expresses a religious viewpoint,” and contends that this type of discrimination is exactly what took place in the Plano school district.

A three-judge panel of the Fifth Circuit previously ruled in favor of the students’ right to distribute their materials and express a religious message, but later granted the schools’ request to have the case reheard en banc by the full court. That rehearing is what is scheduled for Monday, May 23.

Related resources:
Court Ruling Will Supress Speech - June 28, 2010
UNC System Adopts "Hate-Crime" Policy - March 8, 2010
Stifling Campus Speech - February 22, 2010
Student Free Speech Rights Violated - December 28, 2009
"Free to Speak" Campaign Launched- July 23, 2009

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