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FHMBK WINS ‘CANDY CANE’ CASE APPEAL

September 29, 2011 | News

FHMBK WINS ‘CANDY CANE’ CASE APPEAL

5th Circuit Court Rules 10-6 in Favor of Granting PISD Principals Qualified Immunity

 Thursday, Sept. 29, 2011 – Fanning Harper Martinson Brandt & Kutchin P.C. (FHMBK) led the charge in successfully convincing the U.S. 5th Circuit Court of Appeals in New Orleans to decisively rule on Tuesday that two Plano Independent School District elementary school principals are immune from liability for allegedly preventing students from passing out religious-themed items to their fellow classmates during school hours.

Known as the “Candy Cane” case, Morgan et al v. Swanson and Bomchill (Case No. 09-40373) was orally argued by lead counsel Thomas Brandt in front of the entire assembled 16-member 5th Circuit Court on May 23.  By a 10-6 vote, the Court agreed that principals Lynn Swanson and Jackie Bomchill deserved qualified immunity from being assessed punitive damages for their actions, reversing a district court’s ruling that could have subjected each of the principals to monetary damages.  (See http://www.ca5.uscourts.gov/opinions/pub/09/09-40373-CV3.wpd.pdf for the Court’s opinion).

Brandt and fellow FHMBK attorneys Joshua Skinner and David Upham argued that Swanson and Bomchill followed the school’s policy, the directions of their supervisors and the advice of the school’s lawyers.  The case originated in 2001 and has wound its way through various courts for much of the past eight years.

Among those expressing support of the principals’ actions was the Texas Association of School Boards Legal Assistance Fund, the National School Board Association, the Texas Association of School Administrators, the Association of Texas Professional Educators, The Texas Elementary Principals and Supervisors Association, and Plano Independent School District.  The cost of the litigation was paid by Plano ISD’s liability coverage through the Texas Association of School Boards Risk Management Fund, a not-for-profit risk pool that specializes in providing coverage to Texas school districts. 

“Our members in the TASB Risk Management Fund are pleased with the ruling of the federal appeals court and we know that district administrators are relieved to have closure,” said Dubravka Romano, associate executive director of Risk Management Services for the Texas Association of School Boards, the Fund’s administrator.  “This case has been in the courts for almost a decade, and this decision marks what we hope is the final chapter.”

Opposing arguments were led by the Liberty Institute and former solicitors general of the United States, Paul Clement and Kenneth Starr.  

Brandt, the head of FHMBK’s local government and employment law practice, told the Associated Press on Tuesday, “I’m, of course, very pleased with that ruling.  It’s been a long, hard fight.  [Lynn and Jackie] are both very happy with the answer to their prayers.”

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