Faithandthelaw's Blog

The law as it relates to Christians and their free exercise of religion

Infamous Candy Cane Case Before the Fifth Circuit

Posted by faithandthelaw on April 9, 2010


PLANO, Texas, April 7 – Today, the Fifth Circuit Court of Appeals, while sitting at Southern Methodist University’s campus, heard oral arguments in the “candy cane case,” Morgan v. Plano Independent School District (Plano ISD), in which Liberty Institute represents a number of students whose free speech was stifled by the district. The court considered only the issue of the actions of two school officials named in the suit. The Fifth Circuit already decided on the policy issues, which are now on a petition for certiorari at the U.S. Supreme Court.

“Students do not lose their First Amendment freedoms at the schoolhouse gate,” said Kelly Shackelford, Esq., President and CEO of Liberty Institute. “Religious discrimination against students’ speech is illegal.”

Liberty Institute represents a number of students and their families in the case, including a third grader who was banned from giving candy cane pens with a religious message to his classmates, and a student in whose class was told they could not write “Merry Christmas” on holiday cards being sent to American troops overseas.

Charles Bundren, an affiliate attorney of Liberty Institute, argued on behalf of the schoolchildren. Former U.S. Solicitor General Paul Clement, who represents the Barnett sisters as amici, shared argument time and argued that the school officials blatantly disregarded the students? constitutional right to free speech and therefore forfeited their qualified immunity. The Barnett sisters of West Virginia were involved in the landmark student free speech case West Virginia v. Barnette (sic) in 1943, in which the Supreme Court upheld student speech.

The Fifth Circuit considered only the issue of qualified immunity, that is, whether or not the two school officials named in the lawsuit are liable in their individual capacities because of their unconstitutional actions. The district court ruled that the officials are indeed liable, and cannot claim qualified immunity.

 “These students deserve the protection of the law; this discrimination and religious censorship must stop,” said Hiram Sasser, Esq., director of litigation at Liberty Institute.

 Liberty Institute is a public policy and non-profit legal firm dedicated to protecting freedoms and strengthening families.

Courtesy of


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