Morgan v. Swanson

• Decision Date: 30 June 2010
• Docket Number: No. 09-40373.,09-40373.
• Citation: 610 F.3d 877
• Parties: Doug MORGAN; Robin Morgan; Jim Shell; Sunny Shell; Sherrie Versher; Christine Wade, Plaintiffs-Appellees,v.Lynn SWANSON, In Her Individual Capacity and as Principal of Thomas Elementary School; Jackie Bomchill, In Her Individual Capacity and as Principal of Rasor Elementary School, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

610 F.3d 877

Doug MORGAN; Robin Morgan; Jim Shell; Sunny Shell; Sherrie Versher; Christine Wade, Plaintiffs-Appellees,v.Lynn SWANSON, In Her Individual Capacity and as Principal of Thomas Elementary School; Jackie Bomchill, In Her Individual Capacity and as Principal of Rasor Elementary School, Defendants-Appellants.

No. 09-40373.

United States Court of Appeals, Fifth Circuit.

June 30, 2010.

William Charles Bundren (argued), Wm. Charles Bundren & Associates, Frisco, TX, Hiram S. Sasser, Liberty legal Institute, Plano, TX, Clyde Moody Siebman, Siebman, Burg, Pjillips & Smith, L.L.P., Sherman, TX, for Plaintiffs-Appellees.

Thomas Phillip Brandt (argued), Joshua Alan Skinner, Fanning Harper Martinson Brandt & Kutchin, P.C., Dallas, TX, Charles J. Crawford, Abernathy, Roeder, Boyd & Joplin, P.C., McKinney, TX, for Defendants-Appellants.

Christopher Blewer Gilbert, Thompson & Horton, L.L.P., Houston, TX, for Tex. Ass'n of School Boards Legal Assistance Fund, Amicus Curiae.

Paul D. Clement (argued), Ashley charles Parrish, King & Spalding, L.L.P., Washington, DC, for Gathie Barnett Edmonds, Marie Barnett Snodgrass, Amici Curiae.

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

Before DeMOSS, ELROD and HAYNES, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

This appeal arises from the district court's denial of Lynn Swanson and Jackie Bomchill's (Appellants) Second Motion to Dismiss based on qualified immunity. Appellants argue, as they did below, that the First Amendment does not apply to elementary school students. Because it has been clear for over half a century that the First Amendment protects elementary school students from religious-viewpoint discrimination, we AFFIRM.

I.

Appellees allege that “[Appellants] have in the past, and continue in the present, to ban the distribution of religious messages by [Appellees] and other students while on school property,” thereby resulting in “religious viewpoint discrimination in violation of clearly established law.” Appellants deny that they practiced viewpoint discrimination; however, because the motion on appeal is a Rule 12(b)(6) motion, the court must, for purposes of this review, accept the allegations contained in Plaintiffs' Second Amended Original Complaint as true.¹ Set forth below are the allegations contained in the Appellees' 118-page complaint.

A.

Each elementary school classroom in Plano Independent School District (Plano ISD)² hosts a “winter break” party at which students, if they so choose, may exchange “goodie bags” containing gifts. At the December 2001 winter break party at Thomas Elementary School, Michaela Wade gave each of her classmates a goodie bag containing, among other items, a pencil inscribed with the phrase “Jesus is the Reason for the Season.” Each gift bag was sealed and had a sticker affixed to it which addressed the bag to a specific student in Michaela's class. Before allowing her to distribute the goodie bags containing the pencils, the school officials searched her gift bags in order to determine whether they contained any “religious” material. Upon discovering the pencils, Plano ISD officials confiscated and banned them from school property.

Swanson, the principal at Thomas Elementary School, called Michaela's mother, Christine Wade, to inform her of the school's action and to explain that the candy canes that were also in Michaela's goodie bags were acceptable gifts but the pencils were unacceptable because they were inscribed with a religious message. Swanson informed Christine Wade that Plano ISD administrators specifically instructed her that the school district would not allow Michaela to pass out pencils with the phrase “Jesus is the Reason for the Season” affixed to them because of the religious viewpoint of the gift. At the 2001 winter break party, school officials permitted Michaela to hand out candy canes without a religious message attached and permitted her classmates to pass out goodie bags containing gifts inscribed with secular phrases and symbols, such as snowmen and snowflakes. Neither Michaela nor her younger sister Bailey attempted to distribute gifts at their respective winter break parties in subsequent years because they believed that Swanson (and Plano ISD) would continue to prohibit their distribution of religious materials.³

B.

Plano ISD, Swanson, and other school officials at Thomas Elementary School also prevented students from passing out “religious” materials at December 2003 winter break parties. For his December 2003 winter break party, third-grader Jonathan Morgan chose to give his classmates goodie bags containing candy-cane-shaped pens along with a laminated card entitled the “Legend of the Candy Cane” that explained the Christian origin of candy canes. Each bag was individually addressed to a specific classmate with a tag specifying that the gift was from Jonathan Morgan.

Several weeks before the winter break party, Jonathan's parents, Doug Morgan and Robin Morgan, met with Swanson in order to determine whether she would permit students to exchange gifts bearing “religious” messages. The Morgans discussed with Swanson how

students and parents are being interrogated by school officials at the “winter break” parties as to whether or not the contents of their gift or “goodie” bags-which they have brought to school to distribute to their classmates during the “winter break” party-contain any religious viewpoint, religious references or religious message and if the students or their parents acknowledged that the gift bags do contain religious messages or religious viewpoint materials, the bags are then confiscated by school officials and are banned from the classroom and prohibited from being distributed by the students while they are on school property. Swanson affirmed that those actions of school officials have occurred in the past and will occur in the future.

Swanson further emphasized that students were forbidden from using the term “Christmas” in conjunction with any school event or activity (including writing “Merry Christmas” on greeting cards sent to retirement homes) and affirmed that the school would permit secular gifts to be distributed between students at the winter break parties but would prohibit religious-viewpoint messages and gifts of a religious nature.

On the day of the party, Jonathan and his father unsuccessfully attempted to meet with Swanson and then proceeded to Jonathan's classroom. Jonathan's teacher met them at the door and prevented Jonathan from bringing his goodie bags into the classroom to exchange with his classmates because they contained “religious” messages. Once Swanson arrived at Jonathan's classroom and was apprised of the situation, she immediately informed the Morgans that Jonathan could place his goodie bags in the school library or he could distribute his gift bags on a public sidewalk off of school property. All of Jonathan's other classmates were allowed to exchange gift bags inside the classroom.⁴ Swanson only prohibited students from exchanging materials that contained a “religious” viewpoint. Swanson allowed students to exchange other materials, ⁵ and, other than noting the “religious” nature of the materials, Swanson offered no other justification for her censorship of Jonathan's speech.

C.

In January 2004, “[w]hile at school, but during non-curriculum times and with no material and substantial disruption to the operations of the school,” Stephanie Versher spoke with her friends about a Christian drama and gave free tickets to those who were interested in attending. After Stephanie had distributed several tickets, Bomchill, the principal of Rasor Elementary School, another Plano ISD school, instructed Stephanie's teacher to stop her from distributing additional tickets and to confiscate and discard tickets that she had distributed. Bomchill's only justification for restricting Stephanie's distribution of the tickets was that the tickets expressed a “religious” viewpoint and that other students might “disagree” with the Christian viewpoint and complain to school officials.

D.

Plano ISD permits students to celebrate their birthdays with parties at school. Students with summer birthdays may celebrate their half-birthdays during the school year with their classmates while at school. Celebrants often distribute snacks and small gifts to their classmates. For example, students have distributed bookmarks with printed messages, key rings with words and symbols, bracelets, and pencils with various words and symbols. The parties are celebrated during “non-curriculum times” at school-“primarily at the end of the lunch period or during a snack break between instructional time.”

For her half-birthday party, on January 16, 2004, Stephanie wanted to give her classmates brownies along with two pencils: one inscribed with the word “moon” and another inscribed with the phrase “Jesus loves me this I know for the Bible tells me so.” Stephanie's mother, Sherrie Versher, unsuccessfully attempted to meet with Principal Bomchill prior to the party to discuss the snacks and gifts, so on the day of the party, she took the pencils and brownies to the school's office and requested to see Bomchill. Upon arriving, Sherrie Versher received a letter accusing her of distributing material to students on school property and threatening that “law enforcement officials” would be called to arrest her.⁶ Bomchill also accused Sherrie Versher of distributing religious-viewpoint materials to students at school.

Furthermore, Bomchill threatened that, if Stephanie distributed any more religious-viewpoint material while on school property, the school would call the police and Stephanie “would be in trouble.” Bomchill allowed Stephanie to distribute the brownies and the “moon” pencils but not the “Jesus” pencils. According to Bomchill, such “religious” material (i.e., the tickets and “Jesus” pencils) can only be distributed “outside of the school building.”...