May 23 is “Free Speech D-Day” for 41 million kids


Ever heard of the “Candy Cane” case?

It began in 2001 in Plano Texas. In an elementary school during their “Winter Party” (yes, “Christmas Party” is now politically incorrect). Eight-year old Jonathan Morgan was barred from passing out candy canes which contained a religious message.

The same school district, Plano Independent School District, confiscated a little girl’s pencils because they had the word “God” on them. But it doesn’t stop there. Students were also banned from writing “Merry Christmas” on holidays cards which were sent to troops in Iraq.

Parents sued the school district. The case wound up before the 5th Circuit Court of Appeals (New Orleans) in 2010 before the usual panel of three judges and the case was won.

The school district appealed and asked the case to be reheard en banc, meaning in front of the entire 17 justices on the Fifth Circuit. And the Court agreed.

The hearing is scheduled for 9am on Monday, May 23, 2011.

SCOTUS is very selective in which cases they take on however an en banc hearing is almost unheard of.

Kelly Shackelford, an attorney for Liberty Institute tried the original case and explains further in this video:

I had the pleasure of speaking with Counselor Shackelford regarding this case and he had this to say for one:

Now, these same government officials are actually arguing in court that elementary students can be discriminated against and are too young to have First Amendment protection, and if they win this case, they could silence 41 million American school kids and their parents.

Shackelford will again be in the courtroom however because this is such an extremely important case he will have the assistance of 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. Judge Starr stated, “For over a half century the courts have held that children have constitutional rights.” Both Clement and Starr will be working pro bono.

For you “legal eagles” out there the full 79-page brief filed by the plaintiffs for the hearing can be found here however I will be making some notable remarks.

From page 19 on the PDF, STATEMENT OF THE CASE:

This case involves an attempt by certain school officials to engage in the non-plus ultra of forbidden speech restrictions — viewpoint discrimination [emphasis mine] that seeks to eliminate religious and only religious speech from non-curricular aspects of the school environment. In a series of incidents occurring at non-curricular times in non-curricular settings, school officials within the Plano Independent School District (“PISD”) singled out students’ private speech for discriminatory treatment solely because it was “religious” in nature.

From page 25 of the PDF:

A teacher inspected goody bags at winter party and confiscated Michaela’s pencils because they contained a religious message. Jesus is the reason for the Season.”

From page 28 of the PDF:

Stephanie Versher wanted to give out free tickets to her church play. Tickets already given out were ordered to be confiscated and destroyed. Stephanie’s mother was warned that police involvement would occur if she failed to submit material for pre-clearance. 2 police cars pulled Stephanie’s mother over as she was leaving the premises.

From page 31 of the PDF: SUMMARY (FYI Swanson & Bomchill are the school principals and defendants):

The panel correctly concluded that whatever confusion may exist in the law about the ability of school officials to restrict student speech, the law has been clear for decades that school officials may not discriminate against student speech solely because it expresses a religious viewpoint. The complaint’s allegations, which must be taken as true at the motion to dismiss stage of proceedings, makes clear in painstaking detail that Swanson and Bomchill restricted student speech not because it was vulgar, school-sponsored, disruptive, or for any other legitimate reason, but only because it expressed a religious viewpoint.

The plaintiffs will also be using as precedent the landmark SCOTUS decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the Free Speech Clause must “scrupulous[ly]” protect students in the school setting too, lest we “strangle the free mind at its source.” Id. at 637.

In the above case two Jehovah’s Witnesses students were expelled from school after they refused to salute the US flag. The Court stated students could not be compelled to salute the flag and to force them is unconstitutional and in violation of their free speech.

The Barnette sisters, now in their 80’s will be in attendance in the courtroom.

The ACLU has joined the case because of the “free speech” aspect, not the “freedom of religion” aspect however they will not be in attendance.

Also majorly concerned about this case is ARC an organization who represents persons with mental and developmental disabilities. Their point being if the Court decides elementary-age children have no “free speech rights” would this also apply to mentally disabled adults who may be considered to have a “mental age” of only 6, 7, or 8?

So to sum this up, this is a case of viewpoint discrimination, i.e. students were denied “freedom of speech” unless it agreed with the school district’s “viewpoint” which is no mentioning of God or any religious symbols on the school premises. Major, major implications here and a hugely important case.

The justices will make their decision immediately after the 2-hour hearing however the decision will not be released for 3-6 months.

FYI Liberty Institute “advances freedom” at no charge, all their services come from donations. Liberty Institute is also representing Catherine Engelbrecht who started King Street Patriots in Houston and is being sued by an offshoot of ACORN and the Harris County (Houston) Democratic Party; they are respresenting as well Chaplain John Wega whose civil war replica chapel in Gettysburg was arsoned.

Crossposted at Conservative Outlooks

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Deplorable Reagan Conservative. Pro-life, pro 2A. Waiting for Obama's "legacy" to be undone.

Twitter: @LadyImpactOhio

"We the People tell government what to do. It does not tell us."__Ronald Reagan in his farewell speech.

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May 20, 2011 1:59 am

LIO, thanks for this information. WOW! This could turn out to be a very significant case.

This will take place next Monday? Is there a link you can provide so that I can follow up on this? Or do you intend to follow up with results?