• Elementary school students have First Amendment rights

    Date: 01.03.11 | by Judge Tom.

    Just in time for this year’s holiday season, a federal court gave parents of school children some hope regarding their kids’ parties and gift exchange at school.  The case involved the issue of elementary school students handing out goody bags or cards at school with religious messages.

    Students in the Plano Independent School District in Texas were prohibited from giving out pencils with such messages as “Jesus is the reason for the season” and “Jesus loves me, this I know, for the Bible tells me so.” The pencils were allegedly confiscated and banned from the school. Other students were told not to write “Merry Christmas” on holiday cards sent to retirement homes.

    Horia Varlan

    In the case of Morgan v. Swanson, the 5th Circuit Court of Appeals ruled on November 29, 2010, that “It is clearly established that elementary school students have First Amendment rights.”  They may not be as extensive as high school students but the younger students do have such rights. Consequently they may express their opinions, even on religious subjects, if religious viewpoint discrimination hasn’t taken place at school. The case was sent back to the trial court to determine if the school discriminated against the distribution of the materials based on the content of the messages.

    Update:  On December 17, 2010, the Fifth Circuit Court of Appeals announced that it will rehear this case.  The full court (16 judges) heard the case and ruled on September 27, 2011 for the students. Writing for the majority, Judge Jennifer Walker Elrod stated: “We hold that the First Amendment protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech.” Due to the unsettled nature of this area of the law, the court granted immunity to the principals involved although their actions violated the constitutional rights of the children.

    An appeal to the U.S. Supreme Court was filed with an expected decision whether to accept the case or not in June, 2012.

    Read more about student rights and school prayer, religious symbols and religious messages.

    Judge Tom

    This post was written by Judge Tom. Judge Tom is the founder and moderator of AsktheJudge.info. He is a retired juvenile judge and spent 23 years on the bench. He has written several books for lawyers and judges as well as teens and parents including the recently published 'Teen Cyberbullying Investigated' (Free Spirit Publishing). When he's not answering teens' questions, Judge Tom can be found hiking, traveling and reading.

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    4 Comments subscribe to these comments.

    • Clay Boggess
      Mon, 03 Jan 2011 at 06:44

      This ruling is hopefully the start of a positive trend and makes logical sense. While people are allowed to express their views in a respectful manner, the recipient of the message also has the right to receive or reject it as well. I am not sure why an elementary school students first amendment rights would not be the same as a high school students however.
      Dear Clay: First, thanks for your comments. Recognizing that free speech is not absolute (yelling “Fire!” in a crowded theater, for example), age appropriate speech often limits the speaker’s content. Take a look at Bethel v. Fraser as an example of the Supreme Court limiting high school speech because, in part, of the age of some of the students at the school assembly.

    • Clay Boggess
      Mon, 03 Jan 2011 at 12:45

      Elementary school students have First Amendment rights http://bit.ly/eN4P61

    • Askthejudge.info
      Mon, 03 Jan 2011 at 08:02

      RT @BigEFundraising Elementary school students have First Amendment rights http://bit.ly/eN4P61

    • tamm
      Tue, 17 May 2011 at 10:26

      is it possible for a student to be placed in the alternative school for something they did at home when that has nothing to do with school?
      Dear Tamm: As you know, anything is possible. Check your Student Handbook for the policies and rules at your school. It depends on what was done at home. For example, if you posted something online (Facebook, YouTube, etc.) and it had an effect on the school environment, the school may be justified in disciplining you. Cyberbullying has resulted in many suspensions and expulsions. Being off-campus doesn’t necessarily mean you are free to do or say anything you like without consequences. Good luck.
      (This is information only – not legal advice).

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