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Fifth Circuit Judges Spend 100 Pages Debating Plano "Candy Cane" Case, First Amendment

When last we checked in on the nearly 8-year-old (!) case involving those Plano ISD students (and their parents, more to the point) suing the district over those "Jesus is the Reason for the Season" pencils and candy canes they weren't allowed to distribute during winter-break parties, one of the sole remaining issues was whether Lynn Swanson, principal of Thomas Elementary, and Jackie Bomchill, principal of Rasor Elementary, would be cut loose from the litigation. The lower courts refused to do that, which is why, last May, the case went before the 5th U.S. Circuit Court of Appeals in New Orleans.

This morning, a Friend of Unfair Park sends us the 100 pages' worth of back-and-forth between the judges, who ultimately decided in the majority that the principals were immune from prosecution after all. But the doc, which sums up close to a decade's worth of legal fighting, also reveals the judges disagree amongst themselves over whether the principals' decisions violated the kids' First Amendment right. Most say yes, absolutely, among them Circuit Judge Fortunato Benavides, who writes:

Important to the conclusion that Principal Bomchill acted unconstitutionally is the fact that she allegedly restricted Stephanie's "Jesus" pencils solely because of their message. From this pleaded fact, it can only be inferred that Stephanie would have been allowed to distribute her pencils if they had born a secular message.

Judge Jennifer Walker Elrod, who will eventually provide one of the ruling's more disturbing images, goes one step further, insisting that because the principals violated the kids' First Amendment rights, they shouldn't be given immunity:

At the core of the First Amendment's right to free speech is the right of one student to express a religious viewpoint to another student without fear. We hold that this right--to engage in private, non-disruptive, student speech--is protected from viewpoint discrimination under the First Amendment, and that the right extends to elementary-school students. I would also hold that this right is clearly established under existing law.

Judge Priscilla Owen isn't buying it:

"I cannot agree that the law is well-settled regarding the First Amendment rights of elementary school children."

Elrod disagrees:

Imagine the United States of America where the First Amendment protects a minor's right to play violent video games, a person's right to hatefully protest the funerals of our heroic men and women in the military, and the right to possess portrayals depicting animal cruelty, such as videos of people crushing kittens with their shoes, but does not protect a child's right to share 39 a pencil with another child at school merely because the pencil says the word "Jesus."

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