Top court rejects portion of 'candy cane' case: Move by Supreme Court ends second phase of long-running case

The Plano ISD "candy cane case" is one step closer to a resolution after the U.S. Supreme Court refused to hear an appeal made by the Liberty Institute. The case, which began when officials at Thomas Elementary refused to allow a student to distribute candy cane pens with a religious message, has been dragging on since 2003.

The court's action, which was announced Monday, means that a decision by the U.S. Court of Appeals for the Fifth Circuit granting the elementary school principals named in the case qualified immunity will stand. With their immunity, the principals cannot be found personally responsible for the alleged violation of the student's First Amendment rights. The only party that may now be found liable is Plano ISD.

Hiram Sasser, the director of litigation for the Plano-based Liberty Institute, said while the group is upset about the decision, the case will go on.

"We are disappointed the Supreme Court denied review of this case," Sasser said. "We were hoping to finally put this issue to rest: that government school officials should be held accountable when they violate the law and students' First Amendment rights. No student should be subjected to religious discrimination by the government."

Monday's decision was the second time the Supreme Court has refused to hear an appeal in the case, with the previous denial coming in June 2010. That appeal dealt with whether the district's policies were constitutional, which the Fifth Circuit had previously confirmed.

The case centers on Jonathan Morgan, who in December 2003 was a third-grader at Thomas. The candy cane pens contained phrases such as "the hard candy was shaped so that it would resemble a 'J' for Jesus, or turned upside down, a shepherd's staff;" and "a red stripe was added to represent the blood Christ shed for the sins of the world."

When school officials refused to allow Morgan to pass out the candy canes, his parents, as well as the parents of other children who alleged religious discrimination at the hands of Thomas administrators and administrators at Wells and Rasor elementaries, filed suit in December 2004. The other incidents included students who were not allowed to write "Merry Christmas" on cards sent to deployed soldiers, as well as pass out pencils with religious messages and written religious materials.

The lone remaining issue in the hands of the court deals with whether the district violated the student's rights, the central issue of the case which to date has not been argued by either party.

"The lawsuit has been handled in three distinct stages," said Charles Crawford, a Plano ISD attorney who has been involved in the case since Day One. "The first step was whether the policies were constitutional and the answer was 'yes,' and the second stage was are the individuals shielded by qualified immunity and that answer is 'yes.' Now we go to the third stage, which is what actually happened during the events the plaintiffs are complaining about."

Crawford said once the court decides what occurred, a determination will be made on whether the student's rights were violated.

"If the answer to both of those questions is 'yes,' they will determine whether the school district is responsible," he said. "The district can only be responsible for those acts, assuming that they violated the student's rights, if the school board knew about the acts and condoned it."

He said even though the case has been going on for nine years, neither side has taken any discovery from the other side. Through that process, eyewitnesses and other involved parties will be interviewed and documents will be exchanged between both sides prior to the beginning of the trial. He said he doesn't know how long the discovery process will take, but said it could take longer than some others due to the variety of events involved.

"Not all cases are handled like this, but this is a relatively complex constitutional law case that involves not just one incident at one campus, but three incidents at three different campuses at three different points in time," Crawford said. "Just because Jonathan Morgan had his issues with his candy canes, that really has nothing to do in our mind with whether or not one of the other students had issues with their pencils."

In a press release distributed Monday, The Liberty Institute said the rights of 50 million school children had been violated by the decision made by the Supreme Court, stating the issue was bigger than just what happened in Plano. The institute said it hopes the case will cause a reexamination of policies across the country.

"After nearly a decade in litigation thus far, the candy cane case has come to symbolize what many call 'the war on Christmas,' the press release read, "and has affected change throughout the nation, reshaping school district policies, influencing changes to state law, evoking questions about religious expression in schools and forcing the examination of student's First Amendment rights."

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