16 federal judges hear 'Candy Cane Case'

A total of 16 judges on the United States Fifth Circuit Court of Appeals in New Orleans listened Monday to arguments about whether two former Plano ISD principals should be held responsible for actions that may have violated the First Amendment rights of elementary school students.

In a nationally famous so-called "Candy Cane Case" that is now eight years in the making, the two principals were appealing early rulings that they could be held responsible.

Lynn Swanson, who in 2003 was principal at Thomas Elementary School, reportedly had not allowed Jonathan Morgan, then 8-years-old, to pass out candy cane pens with the engraving, "Jesus is the Reason for the Season."

Jackie Bombchill, who at that time was principal at Rasor Elementary School, reportedly denied a student from passing out pencils that had printing on them which included the name of Jesus.

Kelly Shackleford, president and CEO of Liberty Institute in Plano, said it is important that the two principals be held responsible in order to prevent the same thing from happening in other schools across the nation in the future.

"This case will impact every current and future elementary student in the nation," Shackelford said. "Everyone who is a parent or grandparent or just cares about the future of this country should be concerned. If this court rules that elementary students have no First Amendment rights, then neither students nor their parents will have any recourse against religious discrimination, like occurred in this case. It would be a massive shift of power away from citizens and families to the government."

Thomas Brandt, a Dallas attorney who represented the two principals Monday and has represented them in the past, said the two principals were simply following the policy of the school district and the instructions of their superiors.

"They are both Christians and to suggest that they are anti-Christian is ludicrous," Brandt said.

The Fifth Circuit Court of Appeal judges are not expected to make a final ruling in the case until this fall. Should they rule that Swanson and Bombchill were personally responsible for violating children's First Amendment rights, they would be required to pay punitive damages.

"If elementary principals can be held personally responsible for simply following instructions given to them by their superiors, then no one in their right mind would want to be an elementary principal," Brandt said.

Two prominent men joined Shackleford before the Fifth Circuit Court of Appeals Monday in an attempt to show that the two principals should be held responsible.

Paul Clement, former U.S. Solicitor General under President Bush, and former Solicitor General Kenneth Starr, now president of Baylor University, argued for the students.

In April 2010, three judges from the Fifth Circuit Court of Appeals came to Southern Methodist University to hear the case argued, and later ruled in favor of the plaintiffs. Some are predicting that if Monday's en banc judges uphold previous rulings, the case may go to the U.S. Supreme Court.

The First Amendment (Amendment I) to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.

Dr. Doug Otto, PISD superintendent, issued the following statement:

"While Plano ISD is mindful of the Fifth Circuit Court of Appeals debate involving past

and current staff members and a decade-long argument regarding distribution, this

particular case is not directed at the school district. We are reminded that in December 2009, the court ruled in favor of preserving and maintaining a sound instructional environment while appropriately allowing free speech and distribution among students, including religious-oriented

materials."

In December 2009, the United States Fifth Circuit Court of Appeals upheld the district�s

distribution policy as constitutional. The court specifically found that the district policy

offered "ample alternative channels of communication" for students. Emphasizing the

district's "powerful interests" of "maintaining order and discipline, essential both to its

duty to teach and the protected freedom of its students to speak," the court found the

policy facially constitutional as it "simultaneously teaches and protects the student."

The district's general distribution policy is content neutral, allowing students to hand out

items to their classmates or to the general student body without prior approval or

restrictions beyond those related to obscenity, age appropriateness and other guidelines

as stated in the policy language. This policy is consistent with the court's decision which

stresses the district's ability to limit distribution during time "set aside for classroom

instruction."

The court said, "This time, place, and manner regulation serves the powerful

interests of the school in maintaining order and discipline, essential to both its duty to

teach and the protected freedom of its students to speak."

The district's policy states that students at the elementary level can exchange materials

30 minutes before and after school at any entrance or exit and in any gathering areas

approved by the principal. Students may also distribute materials during designated

recess periods and from a designated distribution table.

With the exception of certain annual parties, distribution is not permitted in the classrooms during school hours.

Middle school and secondary school students may distribute 30 minutes before and after

school at any entrance or exit and from the distribution table. In addition, secondary

students may distribute materials in school hallways during non-instructional school

hours and in school cafeterias during lunch and non-instructional time.

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