5th Cir: qualified immunity to principals but free speech violation in banning distribution of religious materials in school

The Fifth Circuit granted qualified immunity to two school principals for their decisions to prevent students from distributing religious materials at school. In a thicket of specially concurring opinions, a separate majority also held that the principals violated the students’ free speech rights. Morgan v. Swanson, No. 09-40373, 2011 WL 4470233 (5th Cir., Sept. 27, 2011). The principal opinions were written by Judge Benavides, nominated by President Clinton, and Judge Elrod, nominated by George W. Bush.

Principal Swanson had forbidden a third grade student from distributing a bookmark with a story describing a Christian origin for the “Candy Cane” during a school-sponsored “winter-break” party. The student’s parents filed a lawsuit claiming viewpoint discrimination in violation of the First Amendment of the Constitution. The claims against Principal Bomchill involved two separate incidents. First, she forbade a second-grade student from distributing tickets during “non-curriculum times” to a passion play at a church. Just a few weeks later, the same student planned to pass out gifts at a school-permitted “half-birthday party.” At the party, she planned to pass out brownies, pencils with the word “Moon,” and pencils with a message invoking Jesus and the Bible. Bomchill would not allow the student to pass out the “Jesus pencils.” The child’s mother, on behalf of her child, brought a lawsuit claiming a violation of free speech. Both principals filed motions for qualified immunity, and the district court denied both motions. The principals appealed to the Fifth Circuit.

A majority of judges agreed with the portion of Judge Benavides’ opinion in which he wrote that the principals were entitled to qualified immunity. Judge Benavides explained that public officials are entitled to qualified immunity unless the official violated a “clearly established” constitutional right. Since the Supreme Court’s decision in Pearson v. Callahan, courts have had discretion to evaluate whether a right was “clearly established” without first deciding if the defendants’ conduct actually violated a constitutional right. 555 U.S. 223 (2009). Exercising that discretion, Judge Benavides examined whether the law “clearly and unambiguously prohibited” the principals’ conduct. First he found that there was no “specific and analogous precedent” that could answer the question. Next looking to whether more general precedent clearly established the rights at issue, Judge Benavides argued that the constitutionality of the principals’ actions turned on which standard for First Amendment speech in schools applied. Under Tinker v. Des Moines, 393 U.S. 503 (1969), schools may not prohibit student speech; under Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988), schools may regulate school-sponsored speech. Judge Benavides held that there were too many conflicting judicial opinions about how to apply these precedents to the precise issue confronting the court, and thus the law was not clearly established. The relationship of the Establishment Clause to the free speech questions in the case further complicated the issue.  Judge Benavides concluded that “the law in this area is abstruse, complicated, and subject to great debate among jurists,” and qualified immunity was appropriate.

A majority of judges did not join Judge Benavides when he chose to exercise the court’s discretion not to decide if the plaintiffs’ acts actually violated the Constitution. He addressed the constitutionality of only one of the acts the plaintiffs were challenging, and held that the free speech rights provided in Tinker should apply in the elementary-school context. Applying this standard, the opinion held that Principal Bomchill’s decision to forbid a student from distributing pencils with religious messages after school on school property violated the student’s free speech rights. Judge Benavides declined to decide if the principals’ other actions violated the Constitution.

A separate majority supported the portion of Judge Elrod’s opinion that held that the principals violated the plaintiffs’ constitutional rights. Judge Elrod wrote that Tinker‘s protections for student speech applied in this case. Furthermore Hazelwood did not apply because this case did not involve school-sponsored speech. Judge Elrod argued that none of the incidents at issue here could be construed as school-sponsored speech. The principals’ actions in these incidents amounted to viewpoint-based discrimination against speech by one student speaking privately to another student. Judge Elrod, writing for the majority, held “that the First Amendment protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech.”

Judge Elrod did not have the support of a majority of judges for other portions of his opinion. Judge Elrod argued that the defendants had waived many of their arguments by failing to raise them earlier. Also, Judge Elrod argued that the First Amendment rights at issue here were clearly established and that the defendants should not receive qualified immunity.

Other judges declared their positions in shorter concurring opinions. Judges Jones, Jolly, and Southwick supported granting qualified immunity, but also supported finding a violation of free speech. Judges King and Davis wrote on behalf of granting qualified immunity but declining to decide if there was a violation of free speech. Judge Garza supported granting qualified immunity, but also declined to decide if there was a violation of free speech. Judge Dennis also supported granting qualified immunity and declining to decide if there was a violation of free speech. Judge Prado argued for not granting qualified immunity for forbidding a student from giving play tickets to interested students or distributing Jesus pencils outside school; but the judge argued for granting qualified immunity for banning the distribution of religious materials at the winter break party and at the half-birthday party. Judge Owen supported granting qualified immunity but also supported much of Judge Elrod’s arguments on behalf of the First Amendment rights of school children.

Judges Smith, DeMoss, Clement, and Haynes joined Judge Elrod’s opinion, and Judge Stewart joined Judge Benavides’s opinion, except for the portion finding one of the principal’s acts to be unconstitutional.

–Nate Vogel, University of Pennsylvania Law School, class of 2011

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