Just in Time for Christmas, Infamous Candy Cane Case Appealed to the U.S. Supreme Court

December 22, 2011

Liberty Institute released the following press release today:

Plano, Texas, December 22, 2011—Today, days before Christmas, Liberty Institute filed a writ of certiorari with the U.S. Supreme Court in Morgan v. Swanson, (known nationwide as the “candy cane” case), asking the Court to hold government officials accountable for violating students’ First Amendment rights. Liberty Institute filed the petition on behalf of Plano ISD students who, during Christmas 2003, were banned by school officials from distributing candy cane pens, pencils and other gifts containing religious messages to classmates during non-curricular activities and after school—a clear violation of their constitutional rights to free speech and free exercise of religion.

“Every school official knows that engaging in religious viewpoint discrimination against students is unconstitutional,” said Kelly Shackelford, Esq., president/CEO of Liberty Institute. “Saying that school officials can engage in such religious discrimination without any responsibility is not the law and would send exactly the wrong message to millions of school children and their families.”

The petition asks The Supreme Court to review a deeply divided en banc decision of the Fifth Circuit U.S. Court of Appeals, which narrowly granted two school officials, Lynn Swanson, Principal of Thomas Elementary School, and Jackie Bombchill, Principal of Rasor Elementary School, qualified immunity, despite numerous constitutional violations. While recognizing that the school officials violated the Constitution, a majority of the court determined that the law, however, was not clearly established enough to hold them responsible. In July 2010, a unanimous panel of the Fifth Circuit denied the school officials qualified immunity recognizing that the law prohibiting viewpoint discrimination is clearly established and also rejected the school officials’ argument that elementary school students have no First Amendment rights.

Former U.S. Solicitor General Paul Clement, who will argue the “Obamacare” lawsuit in the Supreme Court in March, serves as co-counsel with Liberty Institute and argued the case alongside former U.S. Solicitor General Kenneth Starr at the Fifth Circuit U.S. Court of Appeals in September. Clement also co-wrote the petition for review to The Supreme Court.

After eight years in litigation, the candy cane case has come to symbolize what many call “the war on Christmas.” Since 2003, the case has affected change throughout the nation, reshaping school district policies, influencing changes to state law, evoking questions about religious expression in schools and forcing the examination of student’s First Amendment rights. By taking the case, the U.S. Supreme Court would likely clarify the law nationwide, which affects over 40 million students.

Liberty Institute is a non-profit legal firm that works to restore and defend religious freedoms in schools, churches and the public arena. Visit www.LibertyInstitute.org or www.CandyCaneCase.com for more information.


Firth Circuit Rules in Candy Cane Case

September 28, 2011

In response to the Fifth Circuit Court of Appeals ruling in the Morgan V. Plano Independent School District, known nationwide as the “candy cane” case, Kelly Shackelford, president of Liberty Institute released the following statement:

“We are encouraged that the Court rejected the principals’ argument that elementary students have no First Amendment protection and ruled that the principals did indeed violate the Constitution by censoring the religious speech of students.

However, we are disappointed that the Court decided not to hold the school principals responsible for their violation of the law.  That part of the ruling sends the wrong message to students that those responsible for teaching them good citizenship are not held responsible for violating the law.”

Morgan v. Plano Independent School District, involves students and families, represented by Liberty Institute, who were denied their free speech rights and who were discriminated against because their speech was religious in nature, including a young boy who was singled out and banned from handing out candy cane pens with a religious message at his class “winter” party, a little girl who was threatened for handing out tickets after school to a religious play, and an entire class of kids who were forbidden from writing “Merry Christmas” on holiday cards to American troops serving overseas. On appeal, the government officials argued that elementary students are too young to have First Amendment rights.

Sixteen judges sitting on the Fifth Circuit Court of Appeals heard oral arguments in this case last May, overturning the three-judge panel that ruled last year two principals could be held personally liable.  Two former U.S. Solicitors General, Paul Clement and Kenneth Starr, now president of Baylor University, joined Liberty Institute by arguing for the students.

This case has been in litigation for nine years, and will now move to the as-applied allegation, which, if proven, the court ruled would be violations of the Constitution. Liberty Institute will also examine whether to ask the U.S. Supreme Court to hear the appeal on the two principals.


Fifth Circuit Court of Appeals Hears Candy Cane Case

May 23, 2011

Moments ago, all seventeen judges sitting on the Fifth Circuit Court of Appeals heard oral arguments in one of the nation’s most important cases involving free speech, Morgan v. Plano Independent School District. Known nationwide as the “candy cane” case, the case’s outcome will likely determine whether or not elementary students are too young for the First Amendment right to free speech.

“The school officials are asking the court to change the law to actually allow religious discrimination for the first time in American law; the judges were very attentive and active today, and we are hopeful they will reject this radical request from the school officials,” said Kelly Shackelford, Esq., president/CEO for Liberty Institute, which represents several students and their parents in the case.

The case involves several students who were discriminated against because their speech was religious in nature, including a young boy who was singled out and banned from handing out candy cane pens with a religious message at his class “winter” party, a little girl who was threatened for handing out tickets after school to a religious play, and an entire class of kids who were forbidden from writing “Merry Christmas” on holiday cards to American troops serving overseas. On appeal, the government officials are now arguing that elementary students are too young to have First Amendment rights.

Paul Clement, former U.S. Solicitor General under President Bush (who will also represent the U.S. House of Representatives in its effort to uphold the Defense of Marriage Act), and former Solicitor General Kenneth Starr, now president of Baylor University, joined Liberty Institute by arguing for the students.

Judge Starr stated in the argument, “This is ‘cold on the docks’ unconstitutional. We come in the spirit of Barnette v. West Virginia, that school districts have the responsibility to obey the law.”

“The big surprise today in the courtroom is that now the defendants are trying to shift their argument by throwing Plano Independent School District and their representation under the bus, and that school officials have no responsibility to know that they cannot engage in religious discrimination against student speech,” said Charles Bundren, Esq., affiliate attorney with Liberty Institute.

The arguments by the government officials are so troubling that eight groups of diverse political views have filed briefs in support of the students, including conservative groups as well as the ACLU. In fact, during today’s arguments, one of the judges asked the attorney for the school officials exactly what religious speech they couldn’t ban; his answer was, ‘I don’t know.’

Liberty Institute is a public policy and non-profit legal firm dedicated to protecting freedoms and specializes in First Amendment and Constitutional cases.

For more information and to see a video on this case, visit www.libertyinstitute.org.

Audio of the oral argument will be posted online at http://www.ca5.uscourts.gov/OralArgumentRecordings.aspx.

For the full press release click here.


Liberty Institute arguing “Candy Cane Case”: Implications for First Amendment Rights of 41 Million School Children and Parents

May 18, 2011

On Monday, May 23, all seventeen judges on the Fifth Circuit Court of Appeals, sitting en banc, will hear oral arguments in a case that will determine whether elementary school children have First Amendment rights under the U.S. Constitution. Such en banc hearings are rare and for cases of national impact.

Morgan v. Plano Independent School District, known nationwide as the “candy cane” case, involves several students who were denied their free speech rights and who were discriminated against because their speech was religious in nature, including a young boy who was singled out and banned from handing out candy cane pens with a religious message at his class “winter” party, a little girl who was threatened for handing out tickets after school to a religious play, and an entire class of kids who were forbidden from writing “Merry Christmas” on holiday cards to American troops serving overseas. On appeal, the government officials are now arguing that elementary students are too young to have First Amendment rights.

“This case will impact every current and future elementary student in the nation,” said Kelly Shackelford, Esq., president and CEO of Liberty Institute. “Everyone who is a parent or grandparent or just cares about the future of this country should be concerned. If this court rules that elementary students have no First Amendment rights, then neither students nor their parents will have any recourse against religious discrimination, like occurred in this case. It would be a massive shift of power away from citizens and families to the government.”

Paul Clement, former U.S. Solicitor General under President Bush (who will also represent the U.S. House of Representatives in its effort to uphold the Defense of Marriage Act), and former Solicitor General Kenneth Starr, now president of Baylor University, will assist Liberty Institute in arguing for the students. Judge Starr stated, “For over a half century the courts have held that children have constitutional rights.”

The arguments by the government officials are so troubling that eight groups of diverse political views have filed briefs in support of the students, including conservative groups as well as the ACLU.

View full press release.


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