Acknowledgment to Adjunct Law Prof Blog: http://lawprofessors.typepad.com/adjunctprofs/2011/01/elementary-school-students-enjoy-the-first-amendment-right-of-freedom-of-speech.html
I am not quite sure what to make of this one. Obviously, I am gratified that a federal court recognized free speech within the primary/secondary schools. However, pending further examination of the opinion, I am uncertain whether or not this is a collision with the Establishment Clause and, if so, whether these principals should have been forced to shed their qualified immunity, i.e., their immunity from actions taken in good-faith. Over the past 25 years, we have witnessed far too much litigation pushed by right-wing groups such as Dobson’s Alliance for Justice, as well as the Liberty Counsel. These groups have pushed their religious agenda at the expense of the Establishment Clause and our hallowed separation of church and state.
Again, free speech may be valid in this case; however, I cannot see how — if these school principals were merely attempting to enforce guidelines aimed at maintaining the wall between religion and secular, public activities — this results in the loss of qualified immunity.
Morgan v. Swanson, ____F.3d____ (5th Cir. Nov. 29, 2010), is an interesting case. The Fifth Circuit affirmed thea lower court’s denial of qualified immunity to two elementary school principals from a suit by the parents of elementary school children who were prevented from distributing materials with religious messages in school. The court found that based on the facts as alleged at the pleadings stage, the school had engaged in unconstitutional viewpoint discrimination against the elementary school students based on the religious viewpoint of their speech. Second, the panel noted that the principals had acknowledged that the speech in question was non-disruptive student-to-student speech.
The principals had consistently argued that they should be granted qualified immunity because elementary school students do not possess free speech rights. However, the court stated that elementary school students do possess free speech rights. The panel noted that its decision does not preclude the district court from granting qualified immunity if further development of the facts reveals that the speech in question was other than non-disruptive student-to-student speech; nor did it prevent the principals from raising other grounds for qualified immunity.