Last Monday, the full Fifth Circuit Court of Appeals, sitting en banc, heard oral arguments in the case of Morgan v. Swanson — the “Candy Cane Case.” The plaintiffs in the case — children and their parents — are suing the Plano, Texas, school system, along with two elementary school principals and other school employees, for allegedly restricting the students’ distribution of religious literature at school. The oral argument concerned a particular issue in the case: whether the principals should be personally dismissed on the grounds of “qualified immunity.” Qualified immunity protects school teachers, principals, and other public officials from personal liability, unless their alleged conduct violated “clearly established” law. Last year, panel of the Fifth Circuit denied the principals this immunity, and the full court is reconsidering that denial.
On the day of the argument, NRO published a piece entitled “Candy Cane Cops,” in which Hans Von Spakovsky wrote that the case “illustrates the extremes to which radical school administrators will go to impose their ideological, anti-religious views on our children.” He insisted that “three-judge panel clearly reached the correct decision when it ruled against the school district and these intolerant principals” and noted his concern that the full court had decided to review this decision.
Spakovsky fails to mention that his account of events largely reflects not established facts but merely plaintiffs’ allegations. To be fair, at this stage of the litigation, the court must assume these allegations to be true. Still, NRO readers need not make such an assumption.
Moreover, at times he makes assertions that suggest a lack of familiarity with the case. For instance, he lays the blame for the time and expense of the litigation solely on the defendants: “Rather than acknowledge that they made a mistake, apologize, and change their discriminatory policies, they have spent over a million taxpayer dollars fighting this lawsuit all the way up to the federal appeals court.” On the contrary, the school district offered to settle the case, to give the plaintiffs nominal damages and attorneys fees, and to enforce a neutral school policy that would allow inter-student distribution of religious as well as non-religious materials, subject to certain neutral time, place, and manner regulations. Plaintiffs rejected this offer and instead sought to challenge even this neutral policy (which challenge failed) and simultaneously to seek crushing punitive damages against the principals individually.
It was not “anti-religious ideology” that motivated the principals’ alleged conduct. According to the plaintiffs’ own allegations, the principals’ actions were motivated by obedience to policies and customs mandated by the local school district. And according to these same allegations, these policies and customs had been vetted by the schools’ attorneys, and reflected not any anti-religious hostility, but the district’s mistaken understanding of what the Establishment Clause requires.
It has been suggested that the teachers are not entitled to any such “Nuremberg” defense; that no reasonable school principal would obediently impose restrictions discriminating against religious speech. Instead, the principals should have defied their superiors, secure in the knowledge that the law is “clearly established” that the Free Speech Clause prohibits, and the Establishment Clause in no way justifies, any restriction targeting religious viewpoints.
The trouble with this argument is that many federal judges seem to have made this same mistake. Various federal courts remain under the impression that that the First Amendment permits schools to impose special restrictions on student religious speech. Several federal appellate courts have upheld school officials’ decisions to prohibit students from expressing religious messages, whether in completing a school assignment, in distributing religious messages at holiday parties, or in selecting music to perform at a school concert. In each of these cases, students were otherwise free to choose the content of their speech; school officials targeted religious speech for restriction.
Even more strikingly, several federal courts have held that the First Amendment’s Establishment Clause requires such discriminatory restrictions. Just a few years before the events of this case, the Fourth Circuit, in Peck v. Upshur, enjoined an elementary school from allowing anyone to distribute religious literature on tables placed in the school hallways. The opinion, written by the conservative jurist Michael Luttig, imposed an injunction aimed at religious speech, even though the school had adopted a neutral policy that generally opened up the tables for distribution of non-religious as well as religious literature. Just three years ago, a district judge in Louisiana cited Peck and ordered a comprehensive ban on the distribution of religious (and only religious) literature by anyone, anywhere, at elementary schools. Indeed, the largest school district in the Fifth Circuit — Houston — has for decades operated under such a comprehensive and discriminatory injunction. And just a month ago, the ACLU filed suit against a Tennessee school district to obtain a similar anti-religious-speech injunction.
All of these court decisions may reflect a mistake — perhaps a serious mistake — as to what our Constitution permits, prohibits, or requires. Perhaps the correct rule is a vigorous and comprehensive neutrality vis-à-vis all student religious and non-religious speech. But if so, many federal judges simply have not yet received the memo.
Where federal courts — and our society — are so confused and divided on these questions, is it a wonder that Plano school officials may have thought that inter-student distribution of religious materials might pose problems? Was it not reasonable for the school’s teachers and administrators to obey a policy reflecting this (mistaken) understanding? Conversely, is it just or equitable to force school teachers and administrators into personal bankruptcy for obeying their own school district’s policies — and for following their own lawyers’ (mistaken) advice?
If upheld, the panel’s decision to strip the principals of qualified immunity not only would impose unjust personal liability on school employees, it would move the law in a decidedly anti-conservative, anti-traditional direction. First and foremost, it would aggravate the intrusion of unelected federal judges into our public schools — an area traditionally entrusted to local and democratic control.
Before World War II, federal courts rarely intervened in the important and delicate relationships between local communities, schools, teachers, parents, and children. But beginning in the 1940s, by force of Franklin Roosevelt’s unprecedented four terms in office, the federal courts became overwhelmingly dominated by progressive jurists. In a long series of cases, over several decades, these progressives undertook an aggressive and unprecedented interpretation of the First and Fourteenth Amendments.
These new interpretations imposed extensive new restrictions on public schools. Beginning with Everson v. Board of Education (1947), the Supreme Court held, for instance, that the Establishment Clause applied to the states via the Fourteenth Amendment — despite the compelling textual evidence, historical record, and precedent to the contrary. Moreover, the Court construed this Clause to prohibit any school-sanctioned prayer, reading of the Bible, or posting of the Ten Commandments — despite the fact that such practices had been common in our public schools for generations. The Court effectively required public schools to secularize and even sanitize the school atmosphere of anything suggesting approval of, or “excessive entanglement” with, religion.
Similarly, beginning with Tinker v. Des Moines (1969), the Court armed school children with new rights to speak their minds at school — rights to be asserted against the authority of their own teachers. Traditionally students had no such right. They had, at most, the right to remain silent, and the duty to obey their teachers.
As the culture wars have continued unabated, these two lines of cases have come into conflict. In countless threatened or actual lawsuits, schools districts have faced competing, often contradictory lawsuits for permitting either too much, or too little, religious speech in schools.
Some of these disputes are resolved by the distinction between governmental and non-governmental speech, but this distinction is often obscure. For instance, a school’s permissive policies may signal endorsement, especially where a permissive policy allows the majority’s religious opinions to become, de facto, the dominant opinions. Similarly, where the children are particularly young, and the school environment is itself comprehensively regulated — such as in elementary schools — the children may not perceive the difference between what their teachers permit and what their teachers endorse.
In the midst of all this confusing litigation, qualified immunity has been a vital safeguard for our school teachers and administrators. It has served to mitigate the effects of the federal judiciary’s intrusion into public schools. Prior to this case, federal judges had uniformly acknowledged the difficulties faced by school officials in navigating between the conflicting requirements of the new First Amendment jurisprudence. Judges had consistently granted qualified immunity to school officials, even when finding that those officials improperly discriminated against religious speech.
To cite one example, two years ago, Judge Milan Smith of the Ninth Circuit dissented from his colleagues’ approval of a school policy that discriminated against student-selected, religious music at a concert. Despite his conclusion that school officials had engaged in religious-viewpoint discrimination and thus violated the Constitution, he found that they should enjoy immunity from personal liability: “I readily acknowledge that no bright lines exist in this complex field of First Amendment law, and I sympathize with school officials, who often find themselves in a Catch-22, subject to criticism and potential law suits regardless of the position they take. Because of this unfortunate reality, I conclude that qualified immunity is appropriate in this case.”
Despite the surprising consensus among federal judges, the Fifth Circuit panel denied the principals qualified immunity. Conservatives should keep in mind that this unprecedented contraction of qualified immunity would menace conservative Christians no less than secular liberals. School officials would, to be sure, think twice before engaging in anything resembling religious discrimination. But at the same time, officials could equally fear allowing too much religious speech. For example, the Supreme Court has held that sometimes student-led prayers at school events are unconstitutional, but sometimes permissible. Without a broad shield qualified immunity, a Christian school principal would risk bankruptcy simply for allowing the wrong kind of student-led prayer.
A genuinely conservative approach — one that reflects our nation’s political, cultural, and constitutional traditions — would eschew all these lawsuits against schools and school personnel. Conservatives would follow the lead of Justice Clarence Thomas, who has boldly called for a reversal of both Everson and Tinker, and their respective progeny. But barring such an unexpected restoration of local authority over public education, conservatives, at the very least, should seek to protect teachers and administrators from personal liability in this contentious and complex area of the law.
— David Upham is assistant professor of politics at the University of Dallas, and of counsel to the firm of Fanning Harper Martinson Brandt & Kutchin, who are representing the principals in the case.