5th Circuit Dismisses "Candy Cane" Religious Expression Case For Failure To Use Certified Mail In Pre-Suit Notice

In the so-called "candy-cane case", Morgan v. Plano Independent School District, (5th Cir., July 26, 2013), the U.S. 5th Circuit Court of Appeals yesterday, in a 2-1 decision, dismissed the remaining claims on jurisdictional grounds because plaintiff gave notice of his lawsuit to the school by fax, regular mail and e-mail, rather than by certified mail return receipt requested as specified in the Texas Religious Freedom Restoration Act (TFRA), Sec. 110.006.  In the suit, originally filed 8 years ago by parents of several elementary school students, plaintiffs challenged school policy which allowed students to distribute only secular gifts, not religious ones, at the school's annual winter break party. The policy prevented  a third-grader from distributing a “candy cane ink pen” with a laminated card containing a religious message about the legend of the candy cane and its Christian origins. The majority opinion by Judge Davis held that TFRA's pre-suit notice requirement is a jurisdictional prerequisite to bringing suit.  Judge Elrod, dissenting, would have certified to the Texas Supreme Court the question of whether or not TRFRA's notice-by-certified mail requirement is jurisdictional. (See prior related posting.)