On Monday, May 23, all seventeen judges on the Fifth Circuit Court of Appeals, sitting en banc, will hear oral arguments in a case that will determine whether elementary school children have First Amendment rights under the U.S. Constitution. Such en banc hearings are rare and for cases of national impact.
Morgan v. Plano Independent School District, known nationwide as the “candy cane” case, involves several students who were denied their free speech rights and who were discriminated against because their speech was religious in nature, including a young boy who was singled out and banned from handing out candy cane pens with a religious message at his class “winter” party, a little girl who was threatened for handing out tickets after school to a religious play, and an entire class of kids who were forbidden from writing “Merry Christmas” on holiday cards to American troops serving overseas. On appeal, the government officials are now arguing that elementary students are too young to have First Amendment rights.
“This case will impact every current and future elementary student in the nation,” said Kelly Shackelford, Esq., president and CEO of Liberty Institute. “Everyone who is a parent or grandparent or just cares about the future of this country should be concerned. If this court rules that elementary students have no First Amendment rights, then neither students nor their parents will have any recourse against religious discrimination, like occurred in this case. It would be a massive shift of power away from citizens and families to the government.”
Paul Clement, former U.S. Solicitor General under President Bush (who will also represent the U.S. House of Representatives in its effort to uphold the Defense of Marriage Act), and former Solicitor General Kenneth Starr, now president of Baylor University, will assist Liberty Institute in arguing for the students. Judge Starr stated, “For over a half century the courts have held that children have constitutional rights.”
The arguments by the government officials are so troubling that eight groups of diverse political views have filed briefs in support of the students, including conservative groups as well as the ACLU.