The ‘Candy Cane’ Plaintiffs Are in the Right: A Response to Upham

by Hans A. von Spakovsky

With due respect to Professor Upham, what has come to be called the “candy cane case” (Morgan v. Swanson), is certainly not a lawsuit where conservatives should be rooting for the principals. There are so many points in error in his post, it is hard to respond to them all. But I will make a few main points.

First, Upham accuses me of making claims that “even the plaintiffs have never made.” However, all of my descriptions of the outrageous facts come from either the lower court decisions or other pleadings filed in the case, and, if it matters, the plaintiffs’ lawyers agree with my characterization of their claims. He faults me for not saying these were only the plaintiffs’ allegations, but as my article specifically said more than once that “the suit alleges” or “the suit states” when describing the facts in the case, that does not seem to be a fair criticism. Besides, the school district concedes many of these facts.

Upham’s main point seems to be that the principals of the Plano Independent School District (Plano ISD) who apparently discriminated against these students should not lose their immunity from suit because this is a “contentious and complex area of the law.” That would be an easier argument to make if not for the fact that this is the third lawsuit against the school officials in the Plano ISD for this type of behavior, something Dr. Upham fails to mention. So far, they have lost every case.

Plano ISD school officials previously tried to ban parents from complaining about their new “fuzzy math” curriculum. Just like in the current case, where the principals banned all expression of personal viewpoints by parents and students, school officials refused to allow parents to distribute any materials critical of the new curriculum, including calls for an independent evaluation and even a report by the Texas Education Agency. The district lost that case when the Fifth Circuit held the Plano ISD school officials violated clearly established law by engaging in unconstitutional viewpoint discrimination. (See Chiu v. Plano ISD, 339 F.3d 273 (5th Cir. 2003).) Plano ISD school officials also tried to ban a Christian club, SWAT, from meeting on campus, having a sponsor, or being listed on the school’s website, while allowing several other non-curricular clubs. In SWAT v. Plano ISC, a Texas federal court concluded that the decision to exclude the religious club was “flagrant denial for equal access.” In the current case before the Fifth Circuit, the district court found that Plano ISD school officials again engaged in unlawful viewpoint discrimination, a decision affirmed by a three-judge panel (although we are now awaiting the en banc decision on how clear the law must be before principals are liable for violating students’ First Amendment rights).

The point of all this is that school officials should have been well aware that what they were doing was wrong. They are not entitled to qualified immunity for their misbehavior unless their conduct was objectively reasonable in light of clearly established law at the time of the violation. Given their prior litigation history, the principals of Plano cannot meet this standard.

Upham’s claim that the plaintiffs refused a reasonable settlement and are trying to impose a “crushing liability” is also untrue. The plaintiffs filed a suit for nominal damages, which would probably be less than $100. They also sought punitive damages for the repeated unconstitutional behavior, which would, however, have only been a small multiple of the nominal damages. More importantly, one brief filed in the case established the obvious — all damages of any sort that may be awarded are fully covered by the school district’s insurance company, TASB. There is no real liability for the individual defendants in this or practically any other civil-rights cases due to the proliferation of insurance coverage.

On the settlement offer, it is true that the Plano ISD offered to settle by paying all the families’ attorneys fees and giving them $100 a piece, but according to lawyers I talked to involved in the case, the school district adamantly refused to admit fault or promise that they would not engage in such unlawful viewpoint or religious discrimination in the future. The families responded to the offer, saying they were willing to take 50 percent of the proposed payments, which were very little to start with, if Plano ISD would simply agree not to discriminate again. The school district steadfastly refused.

Mind you, the district initially claimed that it did not tell the school officials to engage in viewpoint discrimination against religious speech. But during oral argument, for the first time, lawyers admitted that administrators told school officials to engage in viewpoint discrimination. Their anti-religious views, which Upham disputes, are vividly illustrated by an affidavit filed in the lawsuit by a local pastor who is also a licensed attorney. He was invited to a meeting with the superintendent of Plano ISD in 2005. The superintendent actually admitted that Plano’s policies were unconstitutional, but “stated he did not want to adopt new policies, as the current policies were sufficient to protect students from unwanted proselytizing.”

And what was the superintendent’s view of “unwanted proselytizing?” According to the affidavit, the superintendent claimed that students who “invited other students to an activity at their church or gave a student a pencil with the phrase ‘Jesus is the Reason for the Season’” were engaging in unwanted proselytizing. In fact, the superintendent expressed his belief that parents were putting their students up to this behavior as part of an organized conspiracy “of parents or evangelical churches that were seeking to proselytize kids in the public schools.” If that paranoid view does not meet the definition of anti-religious ideology, I am not sure what would.

Upham spends a great deal of time talking about the court decisions on this issue. But the bottom line is that there have been five Supreme Court cases since 1980 holding that discrimination against religious speech in the educational setting is not allowed. (See Widmar v. Vincent, 454 U.S. 263 (1981); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995); Board of Ed. v. Mergens, 496 U.S. 226 (1990); Lamb’s Chapel v. Center Moriches Union Sch. Dist., 508 U.S. 384 (1993); and Good News Club v. Milford Central Sch., 533 U.S. 98 (2001).)

How many Supreme Court decisions does it take for these same school officials — who have lost two recent lawsuits for violations in their district alone — to get it?

Any school official should know and accept that religious discrimination against students is against the law. Period. This should be especially true in this case, where the officials are principals (who are supposed to be teaching the teachers not to discriminate) and it is in a school district with a sordid history of religious and viewpoint discrimination that has been chastised by the courts twice. I agree with Upham that there are some instances where the federal courts have intruded too deeply into the education of our children. But this is not one of them.

— Hans von Spakovsky is a senior legal fellow at the Heritage Foundation’s Center for Legal and Judicial Studies.

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