The 5th U.S. Circuit Court of Appeals in New Orleans has held that Plano school principals violated students’ constitutional rights when they confiscated Christian-themed materials, including candy cane pens, that students planned to hand out at school.  The pencils one girl tried to distribute read, “Jesus is the Reason for the Season,” and the candy cane pens a student tried to pass out in December 2003 had cards attached to them that explained the Christian origin of the candies.

As reported in the Dallas Morning News, the case focused on several winter break parties from 2001 to 2004 at Thomas Elementary and Rasor Elementary. Lynn Swanson, the principal at Thomas, stopped a third-grade boy from distributing the candy cane pens with the Christian message that read, in part, “The blood Christ shed for the sins of the world.”

A month later, Jackie Bomchill at Rasor prevented a girl from handing out tickets for a Christian drama and from distributing religious-themed pencils. The boy’s parents and others whose children were prevented from handing out the materials sued the school district.

The courts have held that the constitutional rights of students are not surrendered at the school door.  The courts have also held however ,that schools can however regulate activities that disrupt the educational purpose.  This was most recently addressed by the Supreme Court  in the  Bong Hits For Jesus case in which a student, during a school sanctioned off premises event, put up a banner on a public sidewalk that read, “Bong Hits 4 Jesus”.  The banner was confiscated and the student disciplined. The court found in part, that as the banner promoted illegal drug use, it did disrupt the educational mission and the speech was therefore not protected under the 1st Amendment.

In this case, we are dealing with censoring of a private exchange of a  a benign religious message.  It is not occurring in the classroom, at the behest of the school or in any type of school sanctioned manner.  The mere fact that it occurs on school premises does not in itself inure it with this quality   There is no disruption to the educational mission and no illegal activity is encouraged.  The school is not sanctioning it, encouraging it or endorsing it simply by the mere fact that it is occurring.

The fact that it is an elementary school student versus a high school student in my mind is irrelevant.  The message is the message regardless of age.  To claim that the 1st amendment applies differently to the message in the 4th grade versus high school in my mind is the very essence of a viewpoint discrimination and the school unacceptably invading the province of the parents how they raise their children.

In the end, the 1st Amendment applies to the government’s attempt to regulate our speech including religious expression. That means that the school can not engage in conduct that endorses  religious viewpoints.  It does not mean that the school can muzzle a student from expressing their viewpoints in a non-school endorsed private manner.  If I do not agree with the message that is my job as a parent to deal with it at home and not to try to censor the message simply because I disagree.

You can read case here.

Three Florida high school students who are members of the  Dove World Outreach Center were sent home from schools this week after showing up in shirts with “Islam is of the Devil,” written on them. School officials stated that the shirts containing the slogan violated the district’s dress codes.  The School District Staff Attorney stated:

“Students have a right of free speech, and we have allowed students to come to school wearing clothes with messages,” …. but this message is a divisive message that is likely to offend students….

This is not a close call. There is no 1st amendment protection for the slogan.  Bong Hits For Jesus” (Morse v. Frederic) makes it clear speech is not protected if school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school”  Propagating hatred towards a religion and by  using incendiary(no pun intended) language to attack the core beliefs of those those who practice it would seem to fit that bill.  The slogan is not protected benign religious expression. It is an expression of hatred. One need look no further than the Dove Outreach Web Site for evidence of this:

“…..To expose Islam for what it is. It is a violent and oppressive religion that is trying to mascarade itself as a religion of peace, seeking to deceive our society.”

Dove World Outreach is a hate group, nothing more.  Of course they also have their own Facebook page.  Another indication that the worlds new “4th largest country” is not doing enough to curb the unchecked escalation of hatred towards Jews, Muslims and other protected classes within its borders.

The beat of hatred rolls on.  Not quite what Sonny and Cher envisioned.

©2009 Brian Cuban

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The Supreme Court has said no but oddly enough the  former  Alaska high school student Joseph Frederick who offered Jesus up a toke during a school sanctioned Olympics rally  will be $45,000  richer for it. The money no doubt to be used for some prime Mexican sensimillia for further offerings.  The school district will pay Frederick $45,000. In exchange Frederick will drop remaining claims not heard by the U.S. Supreme Court.  The settlement also calls for the district to spend as much as $5,000 to hire a neutral constitutional law expert to chair a forum on student speech at his former high school.

The United States Supreme Court initially agreed to take the case after Frederick, a Juneau, Alaska high was suspended for ten days for allegedly “disrupting” an off-campus school sanctioned rally by unfurling a 14-foot-long banner that read:

“BONG HITS FOR JESUS”

Frederick was suspended in 2002 after he unfurled the banner just outside school grounds as the Olympic torch relay moved through the Alaskan capitol, headed for the Winter Games in Salt Lake City. Frederick was not on school grounds when he put up the banner; he was standing on a public sidewalk. He was asked to take the sign down and refused. He was then suspended for ten days. He appealed to the 9th Circuit Court of Appeals, who agreed that his First Amendment rights were infringed upon. The 9th Circuit found that the banner did not disrupt the educational mission of the school, as it was on a public sidewalk and therefore, was considered protected free speech. The school district appealed to the United States Supreme Court. The school’s position was that it was a school-sponsored event in which the students were dismissed from class, and therefore, he should be bound by the same rules as if he were in the classroom. Ken Star, famous for checking into former President Bill Clinton’s “cigar collection,” represented the school district. (Mr. Star was the independent prosecutor in the Lewinsky “affair.”)

The Supreme Court ruled in favor of the school district upholding their right to suspend Morse. The justices ruled that Frederick’s free speech rights were not violated by his suspension over what the majority’s written opinion called a “sophomoric” banner.   In writing for the majority Chief Justice John Roberts stated:

“It was reasonable for (the principal) to conclude that the banner promoted illegal drug use– and that failing to act would send a powerful message to the students in her charge,” (Opinion)

Roberts also stated that while the court has limited student free speech rights in the past, young people do not give up all their First Amendment rights when they enter a school sending a strong signal that this case is limited to its facts. The Supreme Court ruling while taking the school district off the hook under the United States Constitution did not put an end to the controversy.  There was still litigation pending in the appellate court to determine whether Fredrick’s rights were violated under the Free Speech Provision of the Alaska Constitution. The settlement puts that to rest as well.  There very well could have been a different result under the Alaska Constitution which much to Sarah Palin’s chagrin reads differently than the U.S Constitution.

“Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.”

I frankly called this one wrong when the case first hit the news. I would have bet the mortgage that even a conservative court  was going to come down on the side of the student.  Public sidewalk. Not a voluntary membership school-sponsored event such as football, band, etc., which are privileges. The school did not offer students the opportunity not to take the day off from school.  In my opinion once the student left school grounds, he was “Joe Q. Bong-hitter” and was free to put up any sign he wanted as long as it did not cause an “educational disruption,” incite others to violence, or break some constitutional man-made law. The “center right” Supreme Court did not agree with me holding that a banner “promoting drug use” did disrupt the educational mission.  I did not see the banner as promoting drug use.

How would the landscape of such cases change under the Barrack Obama presidency with as many as 3 new appointments to the Supreme Court?   There is no doubt that if President-elect Obama gets the right people on the bench we will have a much more activist court.  It will  drive the Federalists crazy.  When you throw out terms such as “economic justice” it leaves little doubt that Constitutional definitions and context are fair game for radical change. Every provision of the Constitutional will be looked at in context of who is invoking it and the justice sought as compared to what it actually says. This will be especially interesting in the free speech and right to privacy areas. Would a new left leaning court find the principal’s interpretations and actions reasonable?  What does that mean for the next student offer up some “religious smoke”?  What if the sign had said “HOOKA HITS FOR JESUS!“  Jesus is probably getting high right now at the thought of it…