5th Circuit: Principal Enjoys Qualified Immunity In Adult Speech "Candy Cane" Case

In Morgan v. Swanson, (5th Cir., April 2, 2014), the U.S. 5th Circuit Court of Appeals upheld the district court's conclusion that a Plano, Texas elementary school principal enjoyed qualified immunity in a suit for damages.  In this aspect of the 9-year old litigation, a student's father complained that the principal did not permit him to distribute candy canes with a religious message attached to other adults at his son's in-class winter party.  In a per curiam opinion, plus two concurrences, the court held that the right asserted by the father was not "clearly established". The court said:

A plaintiff does not overcome the qualified immunity defense by alleging the violation of a right that is only defined “at a high level of generality.”... Instead, there must exist a clearly established “particular right” such that the official had “fair notice” of that right and its concomitant legal obligations

In a prior elaborate decision (see prior posting), the 5th Circuit en banc held that even though the principal's actions were unconstitutional, she enjoyed qualified immunity as to claims that the student should have been permitted to hand out the candy canes to his classmates.

UPDATE: On June 3, 2014, the 5th Circuit filed a substituted opinion (full text) in the case modifying some of its language describing the test for qualified immunity. The quote in this posting was unchanged in the substituted opinion.