Dispatches from the Creation Wars

The 5th Circuit is currently hearing an en banc appeal of a case where a school district refused to allow a student to hand out candy cane-shaped pens with religious messages attached to them. And the religious right continues to lie about the case, particularly in the Worldnutdaily. Look at what they’ve claimed about the case in just the last couple weeks. On May 17:

A hearing is scheduled Monday before the 5th U.S. Circuit Court of Appeals in New Orleans that could determine if students in elementary schools have the protections of the First Amendment to the U.S. Constitution…

But Kelly Shackelford, the president and CEO of Liberty Institute, told WND the fundamental question in the disagreement is whether the appeals court will “strip away the First Amendment rights of kids and their parents in the schools.”

“This is really serious, very dangerous,” he said, noting it would be the highest level for such a decision in the nation, short only a ruling from the U.S. Supreme Court.

“This is chilling. What this means if they have no First Amendment rights is that they have no right to have a viewpoint different from the government,” he said…

“If they win this case, they could silence 41 million American school kids and their parents,” the Institute explained.

Shackelford sees the possibility of a slippery slope: If an elementary school student has no First Amendment rights, what about a middle school or junior high student. Then what about a high school student. And what about adults, too? …

“This would be a massive transfer of power from citizens and students and their parents to the government. The government would decide whether students have those rights.”

And on May 23:

A decision by school officials to bar a student from handing out candy-cane pens with a Christian message to classmates at a “winter” party arrived today before the full panel of judges of the 5th U.S. Circuit Court of Appeals, who will have to decide whether the First Amendment’s speech protections apply also to youngsters in this instance.

But this is all nonsense. In fact, the court already ruled on the First Amendment issue, in favor of the kids. The school was clearly wrong and the Appeals Court already ruled that way. So why is the case continuing? As I explained last year, the only real issue left in the case is the question of qualified immunity.

Public employees like school principals are given qualified immunity from being sued for decisions made or actions taken as part of their official responsibilities. That means they can’t be sued personally for those decisions, but can be sued in their official capacities. But the plaintiffs in this case want to sue them personally, not just sue the school. And the school officials are claiming that they have qualified immunity.

The key legal question is whether the student’s right to hand out such items was “clearly established.” Qualified immunity goes away only in cases where the official action violated a clearly established right. And the school officials are arguing that even if their actions did violate the student’s rights, that right was not clearly established by court precedents that they should have been aware of.

Now, I happen to agree with the plaintiffs that the right in this case was clearly established. But that is an entirely different question from the substantive First Amendment issue, which has already been decided. The case being appealed was solely on the qualified immunity question. But they have to scare people into thinking that their rights are still at risk in order to keep the money flowing in.