Religious Viewpoint Discrimination in Public Elementary Schools: Lessons from the Fifth Circuit

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Education Law Reporter


elementary schools, public, schools, religion, free speech, first amendment


Although each of the Supreme Court decisions has generated considerable legal discussion, one issue that has received little, if any, attention is the extent to which the right to free expression might be restricted if the students claiming that right are in elementary schools. The U.S. Supreme Court and lower federal courts have had a number of occasions to mention that students asserting expressive rights have been of elementary age, but have never made the age of the child dispositive of the case's outcome. That is, until the recent Fifth Circuit decision in Morgan v. Swanson where, in two opinions by the court of appeals separated by five months, Morgan I (issued on June 30, 2010) and Morgan II(issued on November 29, 2010), the court was called upon to determine whether elementary students had free speech rights and, if so, whether the right was well established so as to deprive two elementary school principals of qualified immunity for their conduct towards their students. Not only are the Morgan decisions concerning constitutional rights for elementary students ones of first impression, but they carry the potential for school administrator liability generally when clearly established constitutional rights have been violated. This article will examine the Morgan decisions, the arguments of parties, and the implications of these decisions for expressive rights in elementary schools.


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