Morgan v. Swanson

What Happened

In December 2003 and January 2004, elementary school students at two Plano, Texas schools — Jonathan Morgan at Thomas Elementary and Zachary Hood at Rasor Elementary — tried to distribute items with religious messages during school events where other students were freely sharing secular materials.

At Thomas Elementary, students were having a “Winter Break” party where they could give gifts to classmates. Jonathan, a first-grader, brought pencils and candy canes with attached religious messages — including one titled “A Candy Cane Legend” linking the candy cane’s shape to Jesus. His teacher, Sharon Swanson, confiscated the items. During a later “Goodie Bag” event, where students placed items in classmates’ bags, Jonathan tried to include tickets to a church performance of a play — and Swanson again confiscated them. At an “Express Yourself Day” where students presented items about their heritage, Jonathan’s religious-themed presentation was restricted.

At Rasor Elementary, Zachary Hood tried to distribute candy cane pens with religious messages during a similar exchange event. His teacher, Lynn Huff, allowed students to hand out secular items but told Zachary he could not distribute items with religious content. Principal Jackie Bomchill backed the decision.

The children’s parents sued under § 1983, alleging First Amendment viewpoint discrimination. The school officials raised qualified immunity.

What the Court Decided

The Fifth Circuit, sitting en banc, held that the school officials’ conduct violated the students’ clearly established First Amendment rights — at least with respect to the pure distribution of materials during non-instructional time. The court denied qualified immunity on those claims.

The majority worked through the qualified immunity analysis in two steps:

Step one — constitutional violation: The court held that the students’ distribution of religious materials during non-instructional time was private speech, not school-sponsored speech. Because students were free to distribute secular items but not religious ones, the officials engaged in viewpoint discrimination — “the most egregious form of content discrimination” and “presumptively unconstitutional.”

The court applied Tinker v. Des Moines (1969): student expression may only be restricted if it “materially and substantially disrupts the work and discipline of the school.” There was no evidence of any disruption. The school officials couldn’t point to any legitimate pedagogical concern beyond their desire to avoid anything religious.

Step two — clearly established: The court found that by 2003-2004, it was clearly established that schools could not suppress private religious speech solely because of its viewpoint. The court cited a “robust consensus” of its own and other circuits’ precedent dating back to the 1990s.

However, the court granted qualified immunity on the “Express Yourself Day” claim, because that event was arguably school-sponsored speech subject to the more deferential Hazelwood standard.

What It Means in Practice

Morgan v. Swanson is the Fifth Circuit’s most thorough en banc treatment of qualified immunity analysis in a First Amendment context. Beyond the religious-speech holding, the opinion is valuable for its detailed methodology:

1. How to identify clearly established law: The court surveyed Supreme Court precedent, its own circuit precedent, and a “robust consensus” of other circuits. It shows how to build a “clearly established” argument from multiple sources.

2. Forum analysis in schools: The opinion carefully distinguishes between traditional public forums, designated public forums, limited public forums, and school-sponsored speech — each with different First Amendment protections.

3. Viewpoint discrimination is always suspect: Even in limited or nonpublic forums, the government may not engage in viewpoint discrimination. Religious viewpoints are viewpoints — suppressing them because they are religious is viewpoint discrimination.

How You Can Use It

• Viewpoint discrimination claims: If government officials treated your religious (or political) speech differently from comparable secular speech, cite Morgan. “Viewpoint discrimination is presumptively unconstitutional.” 659 F.3d at 375.
• Qualified immunity analysis: Use Morgan’s methodology to argue clearly established law. The en banc court demonstrated how to aggregate authority from multiple circuits to establish a “robust consensus.”
• Key quote: “The Constitution ‘forbids a state to hide behind the way it labels its intentions or the way it misdirects its goals.’ The Supreme Court has long held that the government may not suppress speech because of its religious viewpoint.” 659 F.3d at 376-377.
• Template: “Under Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc), [defendant]‘s suppression of Plaintiff’s [religious/political] expression while permitting comparable [secular/opposing] expression constitutes viewpoint discrimination in violation of clearly established First Amendment law.”
• School context: If a student or parent’s religious speech is being suppressed during events where secular speech is permitted, Morgan is directly on point.

How It Can Be Used Against You

• School-sponsored speech distinction: If the expression occurred during an activity that could be characterized as school-sponsored (like a class presentation or school newspaper), the more deferential Hazelwood standard applies and qualified immunity may attach.
• Disruption: If the speech actually caused or was reasonably expected to cause substantial disruption under Tinker, restrictions may be justified.
• Proselytizing vs. distributing: Some courts distinguish between passively distributing materials and actively proselytizing to a captive audience. If the speech could be characterized as coercive or disruptive, the analysis changes.
• Establishment Clause concerns: Defendants will argue they were trying to avoid an Establishment Clause violation — that allowing religious materials could appear to be school endorsement of religion.

How to counter: Emphasize that private student speech is not government speech. The Establishment Clause does not require — and cannot justify — viewpoint discrimination against private religious expression. Cite Board of Education v. Mergens and Good News Club v. Milford Central School for the principle that a school’s neutral accommodation of private religious speech does not violate the Establishment Clause.