659 F.3d 359 (5th Cir. 2011), 09-40373, Morgan v. Swanson

Docket Nº:09-40373.
Citation:659 F.3d 359
Opinion Judge:BENAVIDES, Circuit Judge:
Party Name:Doug MORGAN, et al., Plaintiffs-Appellees, v. Lynn SWANSON, et al., Defendants-Appellants.
Attorney:William Charles Bundren, Wm. Charles Bundren & Associates, Frisco, TX, Paul D. Clement (argued), Bancroft, P.L.L.C., Ashley Charles Parrish, King & Spalding, L.L.P., Washington, DC, Jeffrey Carl Mateer, Gen. Counsel, Hiram S. Sasser, Liberty Legal Institute, Plano, TX, Clyde Moody Siebman, Siebma...
Judge Panel:Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK and HAYNES, Circuit Judges. [*] EDITH H. JONES, Chief Judge, together with E. GRADY JOLLY and LESLIE H. SOUTHWICK, Circuit Judges, specially concurring: KING...
Case Date:September 27, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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659 F.3d 359 (5th Cir. 2011)

Doug MORGAN, et al., Plaintiffs-Appellees,

v.

Lynn SWANSON, et al., Defendants-Appellants.

No. 09-40373.

United States Court of Appeals, Fifth Circuit.

September 27, 2011

Revised Sept. 28, 2011.

Revised Sept. 29, 2011.

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William Charles Bundren, Wm. Charles Bundren & Associates, Frisco, TX, Paul D. Clement (argued), Bancroft, P.L.L.C., Ashley Charles Parrish, King & Spalding, L.L.P., Washington, DC, Jeffrey Carl Mateer, Gen. Counsel, Hiram S. Sasser, Liberty Legal Institute, Plano, TX, Clyde Moody Siebman, Siebman, Burg, Phillips & Smith, L.L.P., Sherman, TX, for Plaintiffs-Appellees.

Thomas Phillip Brandt (argued), Joshua Alan Skinner, David Robert Upham, Fanning, Harper, Martinson, Brandt & Kutchin, P.C., Dallas, TX, for Defendants-Appellants.

Kenneth Winston Starr, Baylor Law School, Waco, TX, Kevin Philip Parker, Jackie Lynn White, II, Lanier Law Firm, P.C., Houston, TX, for Gathie Barnett Edmonds and Marie Barnett Snodgrass, Amici Curiae.

Kevin Friedrich Lungwitz, Lungwitz & Lungwitz, P.C., Austin, TX, for Texas Elementary Principals and Supervisors Ass'n, Amicus Curiae.

David Lawrence Horan, Laura Jane Durfee, Richard Salgado, Andrew O. Wirmani, Jones Day, Dallas, TX, Ilya Shapiro, Cato Institute, Washington, DC, for Cato Institute, Amicus Curiae.

Jefferson K. Brim, Brim, Arnett, Robinett, Conners & McCormick, P.C., Austin, TX, for Ass'n of Texas Professional Educators, Amicus Curiae.

Steven W. Fitschen, National Legal Foundation, Virginia Beach, VA, for Wallbuilders, Inc., Amicus Curiae.

Richard M. Abernathy, Charles J. Crawford, Director, Abernathy, Roeder, Boyd & Joplin, P.C., McKinney, TX, for Plano Independent School Dist., Amicus Curiae.

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Jay A. Sekulow, American Center for Law & Justice, Washington, DC, for American Center for Law and Justice, Amicus Curiae.

Christopher Blewer Gilbert, Thompson & Horton, L.L.P., Houston, TX, for Texas Ass'n of School Boards Legal Assistance Fund and National School Board Ass'n, Amici Curiae.

Kurt Allen Schwarz, Ryan David Pittman, Paul Christopher Watler, Jackson Walker, L.L.P., Dallas, TX, for American Civil Liberties Union of Texas, Amicus Curiae.

J. Brett Busby, Bracewell & Giuliani, L.L.P., Houston, TX, for Arc of Dallas, Amicus Curiae.

Frederick W. Claybrook, Jr., Crowell & Moring, L.L.P., Washington, DC, for Christian Legal Society, National Ass'n of Evangelicals and Becket Fund for Religious Liberty, Amici Curiae.

Darren Lee McCarty, Alston & Bird, L.L.P., Dallas, TX, for Claremont Institute for the Study of Statesmanship and Political Philosophy, Amicus Curiae.

Appeal from the United States District Court for the Eastern District of Texas.

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK and HAYNES, Circuit Judges. [*]

BENAVIDES, Circuit Judge:

This is a qualified immunity appeal that asks us to decide whether defendant school principals violated clearly established law when they restricted elementary students from distributing written religious materials while at school. Answering this question requires recourse to a complicated body of law that seeks, often clumsily, to balance a number of competing First Amendment imperatives. This body of law failed to place the constitutionality of the defendants' conduct beyond debate, so they are entitled to qualified immunity. Parts I through IV of this opinion, together with the separate concurrences of Chief Judge Jones, Judge King, Judge Garza, Judge Owen and Judge Dennis, reflect the views of the majority of the en banc Court granting qualified immunity to the principals and the judgment reversing the district court.1

Although the law was not clearly established, a separate majority of the Court holds that the principals' actions— as alleged in the complaint— were unconstitutional. Parts III A, C, and D of Judge Elrod's opinion represent the opinion of the court on these issues, with special concurrences by both Judge Prado and Judge Owen.

I

The plaintiffs in this case are four former elementary-school students in the

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Plano Independent School District (PISD), along with their parents. The plaintiffs are evangelical Christians, which is to say, in their own words, that their faith " strongly emphasizes the personal nature of personal evangelism and dissemination of religious viewpoint material." They explain that their religious training and beliefs require them to " communicate religious viewpoint ideas to their peers, classmates, and other students," so as to " introduce ... classmates ... to the truth of the Christian Faith." These students and their families have sued PISD because school officials have, at various times and in various ways, prevented them from evangelizing while at school. More specifically, the linchpin of the plaintiffs' claims is that they have been prohibited from distributing written religious materials while at school.

Before us today are two individual defendants' motions to dismiss for qualified immunity.2 Jonathan Morgan and Stephanie Versher (with their parents) bring damages claims against, respectively, Lynn Swanson, principal of Thomas Elementary School, and Jackie Bomchill, former principal of Rasor Elementary School.3 The district court denied Swanson and Bomchill's joint motion to dismiss for qualified immunity. The principals appealed, and a panel of this Court affirmed.4 The principals petitioned for rehearing en banc, and we granted their motion.5

A

Plaintiff Jonathan Morgan alleges that Principal Swanson violated his First Amendment rights in connection with a so-called " winter-break" party at Thomas Elementary in December of 2003. The winter-break parties were conducted yearly at Thomas Elementary in individual classrooms for attendance by all students. The parties were conducted pursuant to written " guidelines and regulations" 6 and were planned and supervised by volunteer room parents and individual classroom teachers. Although the parties were conducted in individual classrooms, they were

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governed across each grade level by strict, specific guidelines.

Third-grader Jonathan Morgan wished to distribute a gift to his classmates at the 2003 winter-break party, as he alleges was common practice at his school. Students typically brought gifts for their classmates to the winter-break parties in gift bags, or " goody bags." Morgan's proposed gift was a " candy cane ink pen," attached to a laminated bookmark containing a written message, " The Legend of the Candy Cane" :

A candy maker wanted to invent a candy that was a witness to Christ.

First of all, he used a hard candy because Christ is the Rock of Ages. This hard candy was shaped so that it would resemble a " J" for Jesus, or, turned upside down, a shepherd's staff. He made it white to represent the purity of Jesus.

Finally, a red stripe was added to represent the blood Christ shed for the sins of the world, and three thinner red stripes he received on our behalf when the Roman soldiers whipped him. Sometimes a green stripe is added as a reminder that Jesus is a gift from God.

The flavor of the cane is peppermint, which is similar to hyssop. Hyssop is in the mint family and was used in the Old Testament for purification and sacrifice. Jesus is the pure lamb of God, come to be a sacrifice for the sins of the world.

So, every time you see a candy cane, remember the message of the candy maker: Jesus is the Christ!

Morgan intended to distribute these " Legend of the Candy Cane" pens inside his gift bags, which would be inscribed, " TO: [Classmate's name], FROM: Jonathan Morgan." 7

Morgan's parents suspected, based on conversations with other parents, that school officials would not allow Jonathan to distribute the " Legend of the Candy Cane" in the classroom. Thus, they arranged a meeting with Principal Swanson on December 4, 2003.8 Principal Swanson confirmed at the meeting that Jonathan would not be allowed to distribute " The Legend of the Candy Cane" at the winter-break party. She offered that he could distribute a goody bag at the party containing nonreligious items, and that he would be permitted to distribute " The Legend of the Candy Cane" at a table in the school library. This offer failed to mollify the Morgans, who never attempted to avail themselves of the " library information table" option. Instead, they consulted their attorney, who sent a demand to Swanson on December 17, 2003, informing her that it was unconstitutional to exclude religious gifts from the classroom parties. Counsel further opined that any Establishment Clause concerns arising from the distribution of religious materials in elementary

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schools were unfounded. The Morgans demanded that Jonathan " and other students" be allowed to distribute religious gifts at the classroom parties, lest they seek redress in federal court.

The next day, December 18, 2003, counsel for the school district responded. 9 The district denied the Morgans' allegations that only religious gifts would be forbidden at the winter-break parties, citing PISD's policy FNAA (LOCAL), which prohibited distribution of " any written material, tapes, or other media over which the school does not exercise control and that is intended for distribution to students" without prior approval from the school. The day before, Carole Griesdorf, another PISD administrator, had given a similar explanation in an e-mail to the Morgans, noting that "...

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