In Morgan v. Swanson, (5th Cir., July 1, 2010), the U.S. 5th Circuit Court of Appeals refused to grant qualified immunity to two Plano, Texas elementary school principals who were sued for refusing to allow elementary school students to hand out religious-themed items during school parties and at other non-curricular times. The court held that it is clearly established that the First Amendment applies to student-to-student distribution of non-curricular materials in elementary schools, and that the First Amendment prohibits viewpoint discrimination against religious speech in elementary schools. (See prior related posting.)
UPDATE: An amended opinion was filed on Nov. 29, 2010 adding that nothing in the opinion prevents the district court from granting qualified immunity if the facts show this was something other than non-disruptive student-to-student speech.
