In the 2011 Fifth Circuit case of Morgan v. Swanson, the Court held en banc that Defendants, who are principals of elementary schools in the Plano Independent School District, are entitled to qualified immunity from the suit for the alleged First Amendment violations against school children. According to plaintiffs’ complaints, defendants banned the distribution of religious messages by students while on school property. For example, plaintiffs alleged that during a winter break party, one of the defendants refused to allow a student to distribute pencils stating “Jesus is the Reason for the Season.” That defendant also refused to allow another student to distribute laminated cards entitled “Legend of the Candy Cane,” which explained the Christian origin of candy canes. Students were forbidden from using the term “Christmas” in conjunction with any school event or activity. The other defendant would not allow a student to distribute tickets to a Christmas drama. The District Court denied defendants’ motion to dismiss based on qualified immunity. Defendants appealed, arguing that the First Amendment does not apply to elementary school students.

On appeal, a panel of the Fifth Circuit (DeMOSS, ELROD, and HAYNES) rejected defendants’ argument. The Court explained that because defendants asserted qualified immunity in a motion to dismiss, the Court had to accept as true plaintiffs’ allegation that their actions “did not cause substantial and material disruption of school operations.” Further, the facts alleged provided no indication that the events were curricular or that the speech was inconsistent with the school’s “basic educational mission.” Thus, the Court need only determine, under the facts pleaded, whether it was clearly established at the time of the alleged misconduct that elementary school students had a First Amendment right to be free from religious-viewpoint discrimination while at school. The Court determined that it has been clear for over half a century that the First Amendment protects elementary school students from religious-viewpoint discrimination. Defendants had fair warning that the suppression of student-to-student distribution of literature on the basis of religious viewpoint is unlawful under the First Amendment with respect to elementary school students. Their conduct, as alleged, violated the students’ clearly established First Amendment rights. Thus, defendants were not entitled to qualified immunity.

The panel withdrew its original opinion of June, 30, 2010, and on November 29, 2010, substituted an opinion that was substantially similar to the withdrawn opinion, and reached the same result. It added, however, the following: “Our holding, however, does not preclude the district court from granting qualified immunity in this case should the facts demonstrate that this is other than non-disruptive student-to-student speech. In addition, nothing prohibits Appellants from raising other grounds for qualified immunity in the future.”

On December 17, 2010, the Fifth Circuit announced that it would rehear the matter en banc. The Court released its en banc opinion on September 27, 2011. Judge BENAVIDES, joined by Chief Judge JONES, and Judges KING, JOLLY, DAVIS, GARZA, STEWART, DENNIS, OWEN, SOUTHWICK, and PRADO (partially), wrote for a majority that decided: “The defendants in this case are entitled to qualified immunity because existing precedent failed to place the constitutionality of their conduct ‘beyond debate.'” The majority emphasized that “no federal court of appeals has ever denied qualified immunity to an educator in this area,” and “[w]e decline the plaintiff’s request to become the first.” Whereas Judge BENAVIDES’ opinion addressed the constitutionality of the principals’ conduct, Judges KING, DAVIS, GARZA, STEWART, and DENNIS did not agree that it was appropriate to reach the constitutionality of the conduct of either principal.

Judge ELROD, writing for a majority that included Chief Judge JONES, and Judges JOLLY, SMITH, DeMOSS, CLEMENT, PRADO, OWEN, SOUTHWICK, and HAYNES, and was of the opinion that the principals’ alleged conduct violated the students’ First Amendment rights. Judges SMITH, DeMOSS, CLEMENT, and HAYNES fully joined Judge ELROD’s opinion. Chief Judge JONES, and JUDGES JOLLY, PRADO, OWEN, and SOUTHWICK, joined varying sections thereof. In the remainder of Judge ELROD’s opinion, she dissented from the majority’s decision to reverse, explaining that she would affirm the District Court’s denial of the motion to dismiss because the facts alleged in the complaint did not entitle the principals to qualified immunity.

Chief Judge JONES, joined by Judges JOLLY and SOUTHWICK, specially concurred to state: “I regretfully vote to reverse the denial of qualified immunity to these principals.” Continuing, Chief Judge JONES declared: “I vote to adopt [the parts] of Judge Elrod’s analysis showing that the actions of these principals violated the students’ freedom to communicate with their peers in each of the four instances before us.”

Judge KING, joined by Judge DAVIS, specially concurred in Judge BENAVIDES’ opinion to the extent it granted qualified immunity, but disavowed other parts. Judge KING declined to join Judge ELROD’s opinion that the complaint stated a claim for a violation by the principals of the First Amendment rights of the students.

Judge GARZA specially concurred to express his belief that the principals were entitled to qualified immunity, but he too was reluctant to declare as a matter of law, based on the pleadings, that the underlying incidents amounted to First Amendment violations.

Judge DENNIS specially concurred in Judge Benavides’ opinion to the extent it granted defendants qualified immunity. Judge DENNIS explained his disagreement with other parts of Judge BENAVIDES’ opinion.

Judge PRADO partially concurred, concluding that under pertinent precedent, the principals’ actions were not objectively unreasonable in light of clearly-established law. Thus, Judge PRADO was in favor of extending qualified immunity with respect to those incidents.

Judge OWEN also specially concurred in Chief Judge JONES’ concurrence except to the extent it adopted portions of Judge ELROD’s dissenting opinion. Judge OWEN was not convinced that the law is well-settled regarding First Amendment rights of elementary school children.