Dispatches from the Creation Wars

A dispute over student religious freedom has taken a strange turn. The case involves the public schools in Plano, Texas, where students were told they could not hand out candy canes with religious messages attached to them to their classmates. After the school was sued over this, they changed their policy to allow it and the courts already ruled that the new policy was constitutional.

So far, so good. The school was clearly wrong and the case should have ended, it seems to me, with a consent decree stipulating the new policy. Problem solved. But the plaintiffs have continued to pursue the case on the question of holding the principal of the school personally responsible for the decision.

School officials have “qualified immunity” against lawsuits for actions carried out in the course of their duties. What that typically means is that unless their actions clearly violated a well-established law, you can’t sue them. In this case, the plaintiffs are arguing that the right of the students to hand out the candy canes was extremely well established and could not reasonably have been doubted.

And frankly, they’re right. There have been lots and lots of cases on this issue. It would not surprise me if the principal did not know about those cases, since most school officials are abysmally ignorant of the law even on issues that directly affect their jobs. It strikes me as more likely that their attorney, assuming they advised them that the students did not have such a right, is the one who violated a clear legal norm they should have known about.

But what strikes me as strange is that the attorneys in this case, who are from the religious right legal group the Liberty Institute (formerly the Liberty Legal Institute), keep claiming that the narrow issue of qualified immunity they’re still pursuing has something to do with the constitutional issue in the case. In the Dallas Morning News, it says:

“We are very encouraged,” Kelly Shackelford, president of Liberty Institute, said as the audience filed out of the small, carpeted courtroom. “We finally got a day in court to get to the real issues – that elementary school kids do have First Amendment rights.”…

“If we can take it to the Supreme Court it would be huge,” Shackelford said. “This would be the first time the court has recognized rights for kids since Tinker,” he said, alluding to the 1969 case that defined student rights in public schools. The court ruled that students had the right to wear black armbands to protest the Vietnam War.

And in a press release, the Liberty Institute said:

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.”…

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.

There’s a contradiction there. Twice they admit in the press release that this case, at this point, is only about qualified immunity, not about the substantive question of the students’ rights, which have already been vindicated in the case. Yet in the very next sentence, they have biolerplate about that substantive issue as if that was still at risk here.

It’s not. The case is over on the substantive issue. The students won, as they should. Regardless of what happens on the qualified immunity question, there is no more “discrimination and religious censorship” and the free speech rights of students have already been upheld and enforced.