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5th Ct of Appeals 09 2011 Ruling

5th Ct of Appeals 09 2011 Ruling

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U.S. Court of Appeals for the Fifth Circuit ruling filed in September 2011 on a portion of the candy cane case involving the Plano, Texas, school district.
U.S. Court of Appeals for the Fifth Circuit ruling filed in September 2011 on a portion of the candy cane case involving the Plano, Texas, school district.

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Published by: The Dallas Morning News on Jun 11, 2012
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06/11/2012

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*
Judge Graves did not participate in this decision.
REVISED SEPTEMBER 29, 2011IN THE UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT
No. 09-40373DOUG MORGAN, et al.,Plaintiffs-Appelleesv.LYNN SWANSON, et al.,Defendants-AppellantsAppeal from the United States District Courtfor the Eastern District of TexasBeforeJONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA,DeMOSS,BENAVIDES,STEWART,DENNIS,CLEMENT, PRADO, OWEN,ELROD, SOUTHWICK, and HAYNES, Circuit Judges.
*
FORTUNATO P. BENAVIDES, Circuit Judge:This is a qualified immunity appeal that asks us to decide whetherdefendant school principals violated clearly established law when they restrictedelementarystudentsfromdistributingwrittenreligiousmaterialswhileatschool.Answering this question requires recourse to a complicated body of lawthatseeks,oftenclumsily,tobalanceanumberofcompetingFirstAmendment
United States Court of AppealsFifth Circuit
F I L E D
September 27, 2011Lyle W. CayceClerk
 
No. 09-40373
1
PartsIthroughIVofthisopinion,grantingimmunitytothedefendantsbecausethelawwasnotclearlyestablished,arejoinedbyJudgesKing,Davis,andStewart.Judge Dennisalsojoins these Parts in full, except for one point of law in Part IV(A), as discussed in hisspecial concurrence. Judge Owen joins only Parts II through IV.PartVofthisopinionaddressestheconstitutionalityofthe principals’ conduct, asallegedinthecomplaint.Parts V(A) through (C) conclude that one of the incidents involvingPrincipalBomchillwasunconstitutional,whilePartV(D)concludesthattheCourtshouldnotreach the underlying constitutional question as to the remaining incidents. Judges King,Davis, Garza, Stewart,andDenniswouldnot address the constitutionality of the conduct ofeither principal and join only in Part V(D).
2imperatives.This body of law failed to placetheconstitutionality of thedefendants’conductbeyond debate, so they are entitled toqualifiedimmunity.Parts I through IV of this opinion, together with the separate concurrences ofChiefJudgeJones,JudgeKing,JudgeGarza,JudgeOwenandJudgeDennis,reflecttheviewsofthemajority of the en banc Court granting qualifiedimmunity to the principals and the judgment reversing the district court.
1
Although the law was not clearly established, a separate majority of theCourtholdsthattheprincipalsactions—as alleged in the complaintwereunconstitutional. PartsIIIA,C,andDof Judge Elrod’s opinion represent theopinionofthecourtontheseissues,withspecialconcurrencesby both JudgePrado and Judge Owen.IThe plaintiffs in this casearefourformerelementary-school students inthePlanoIndependent School District (PISD), along with their parents. Theplaintiffs are evangelical Christians, which is to say, in their own words, thattheirfaith“stronglyemphasizesthepersonalnatureofpersonalevangelismanddisseminationofreligiousviewpointmaterial.They explain that their religioustrainingandbeliefsrequire themto“communicatereligiousviewpointideastotheirpeers,classmates,andotherstudents,soastointroduce...classmates.. . to the truth of the Christian Faith.” These students and theirfamilies have suedPISDbecauseschoolofficialshave,atvarioustimes and in
 
No. 09-40373
2
Thecasenowbeforeusrepresentsarelativelysmallpartoftheplaintiffslargersuit.Thecomplaintmountsfacialandas-appliedchallengestoseveralversionsofPISD’sstudent-speechpolicy,alongwithclaimsagainstsixschoolofficialsintheirofficial and individualcapacities.Thesevariousclaimsareproceedingin pieces. We have already considered andrejectedafacialchallengetooneversionofPISD’sstudent-speechpolicy.
SeeMorgan v.PlanoIndep. Sch. Dist.
(
Morgan I
),589F.3d740(5thCir.2009).The as-applied challenge to theschoolpolicyandtheofficial-capacityclaims will proceed on their own timetable. In otherwords, this is not our first word on the issues in this case, and it will likely not be our last.
3
Athirdstudent,MichaelaWade,alsoassertsclaimsagainstSwanson.However, thecomplaintplainlyindicatesthat“[t]heWadePlaintiffsdonotseekdamages”;theirallegationsareofferedonlyinsupportoftheplaintiffsclaimsforequitablerelief.This is an appeal fromadenialofqualified-immunity,whichisanimmunityfromclaimsfordamagesonly.
See,e.g.
,
Williamsv. Ballard
,466F.3d330,334(5thCir.2006)(citing
Orellana v. Kyle
,65F.3d29,33(5thCir.1995)).Like the district court below, we do not consider the Wade incident indetermining Swanson’s entitlement to immunity.
4
Morgan v. Swanson
,627F.3d170,
vacated and reh’g granted
,628F.3d705(5thCir.2010) (en banc).
5
Morgan
, 628 F.3d at 705.
3variousways,preventedthemfromevangelizingwhileatschool.Morespecifically, the linchpin of the plaintiffs’ claims is that they have beenprohibited from distributing written religious materials while at school.Beforeustodayaretwoindividualdefendantsmotions to dismiss forqualifiedimmunity.
2
Jonathan Morgan and Stephanie Versher (with theirparents) bring damages claims against, respectively, Lynn Swanson, principalofThomasElementarySchool,andJackieBomchill,formerprincipalofRasorElementarySchool.
3
The district court denied Swanson and Bomchill’s jointmotiontodismissforqualifiedimmunity.The principals appealed, and a panelofthisCourtaffirmed.
4
The principals petitioned for rehearing en banc, and wegranted their motion.
5
A
PlaintiffJonathanMorgan alleges that Principal Swanson violated hisFirstAmendmentrightsinconnectionwithaso-called “winter-break” party atThomas Elementary in December of 2003. The winter-break parties were

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