Yesterday, in a complicated series of eight opinions from 16 judges spanning 100 pages, a majority of the U.S. 5th Circuit Court of Appeals, sitting
en banc, held that Plano, Texas school principals had qualified immunity in a lawsuit charging them with restricting elementary school students' distribution of religious literature because the law was not clearly established. A separate majority of the court held that the principals' actions were unconstitutional. In
Morgan v. Swanson, (5th Cir., Sept. 27, 2011), Judge Elrod wrote for the majority on the issue of constitutionality. She said:
In short, whatever latitude school officials may have with respect to school-sponsored speech under Hazelwood, or with government-endorsed speech under the Establishment Clause—that is, speech that could be erroneously attributed to the school—outside of that narrow context, viewpoint discrimination against private, student-to-student, non-disruptive speech is forbidden by the First Amendment.....
[W]hat one child says to another child is within the protection of the First Amendment unless one of the narrow exceptions discussed above applies, and none does in this case. Accordingly, we hold that the First Amendment protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech.
Education Week reports on the decision.
