After ten years of litigation and three written decisions on the matter from the 5th U.S. Circuit Court of Appeals, one might assume the justice system is finished with the so-called "candy cane" case. And one would assume wrong.

On July 25, the 5th Circuit issued its fourth decision on the religious freedom case in which the parents of a then-third grader alleged that their First Amendment rights had been violated in 2003 when the school district refused to let their boy distribute a candy cane ink pen with a religious message at an on-campus winter break party. [See " Principals Prevail in En Banc 5th Circuit Candy Cane Case" Texas Lawyer, Oct. 3, 2011, page 1.]

The decision in Doug Morgan et al. v. Plano Independent School District concerned whether the plaintiffs strictly complied with the Texas Religious Freedom Restoration Act's [TRFRA] pre-suit notice requirement.

Prior to the party, the boy's parents met with school officials who told them religious materials could not be distributed on school property. Days before the party, a lawyer for the parents sent a demand letter to school officials complaining that the school's procedures were interfering with the boy's right to religious expression. The letter was delivered to school district officials via fax and U.S. mail, but was not sent by certified mail, return receipt requested, according to the decision.

Because the plaintiffs did not strictly comply with TRFRA pre-suit notice requirement, the 5th Circuit ruled in Morgan that the Plano Independent School District had not waived their governmental immunity claim and dismissed the plaintiffs' TRFRA claim for lack of jurisdiction.

"While Plaintiffs request that we certify to the Texas Supreme Court whether this pre-suit notice requirement is jurisdictional, we find the statute clear and are satisfied that the Texas Supreme Court would apply the statute as written," wrote Judge W. Eugene Davis in an opinion joined by Judge Carolyn Dineen King.

"Because it is undisputed that the Morgan's demand letter did not comply with the jurisdictional pre-suit notice requirements, PISD's governmental immunity is not waived," Davis wrote.

Judge Jennifer Walker Elrod dissented to the opinion, noting that the case presented an "important and novel issue of Texas law" and the 5th Circuit should have sent the case to the Texas Supreme Court for resolution via certified question.

Charles J. Crawford, a director with McKinney's Abernathy, Roeder, Boyd & Joplin who represents PISD, says the result of the decision is that the state law claims by the parents are now dismissed. However, the decision does not mean the case is over Crawford says.

"It does not. I truly, truly wish it did," Crawford says, noting that while every claim against individual defendants in the case have been dismissed by the 5th Circuit, some of the plaintiff's First Amendment claims against PISD are still pending.

Hiram Sasser, director of litigation for Liberty Institute, a religious freedom organization that represents the Morgans, says he disagrees with the 5th Circuit's decision.??

"We think this issue should be resolved by the Texas Supreme Court," Sasser says.

Sasser also marvels at the decade-long life of the candy cane case.

"On our side we just want to get to a trial. We want the facts and the law presented and we want a decision on this," Sasser says. "But we've had to wade through a minefield of defense after defense after defense. We just want it before a trier of fact.''