If you visited the Texas Capitol on December 21, 2015 you might have seen an exhibit featuring George Washington, Thomas Jefferson, Ben Franklin and the Statue of Liberty huddled around a manger. You know, a manger….like where Jesus was born. Washington was on one knee, and the others looked equally worshipful. But there was no baby in the manger. The manger contained the Bill of Rights.
The exhibit included a banner that read: HAPPY WINTER SOLSTICE. AT THIS SEASON OF THE WINTER SOLSTICE, WE HONOR REASON AND THE BILL OF RIGHTS. KEEP STATE AND CHURCH SEPARATE.
The exhibit included a disclaimer: “Private display, not endorsed by the state.” The display was sponsored by the Freedom from Religion Foundation (FFRF, soon to be known as “the Plaintiff”). Governor Abbott ordered its removal the next day. The governor wrote that the display mocked religious beliefs, promoted ignorance and falsehood by suggesting that our nation’s Founders worshipped the Bill of Rights, rather than Jesus. Abbott described the exhibit as “tasteless sarcasm.”
The FFRF applied to exhibit the same display in 2016 and was turned down, based on the governor’s strongly held views expressed in 2015. So….a lawsuit. FFRF claimed that its First Amendment rights were violated by the governor’s “unbridled discretion.”
This case is important for K-12 leaders because schools sometimes create a “limited public forum.” For example, if you raise money with a “buy a brick” campaign and allow donors to put a message on the brick, you are probably creating a limited public forum. This case tells us that district officials can exercise discretion about what can be said in a limited public forum, but that discretion cannot be “unbridled.”
The lower court held that the governor’s order to remove the FFRF’s exhibit was aligned with the state’s “public purpose” policy. It was a reasonable application of the policy, and therefore, it was not “unbridled” discretion. The 5th Circuit reversed that decision. The appellate court held that “reasonableness” was only half of the test. The governor’s decision also has to be viewpoint neutral. So the court sent the case back to the district court for a ruling on the neutrality of the governor’s viewpoint.
So let’s think about how this applies to a public school. If your school creates a limited public forum, you can make some decisions about what is acceptable and what is not. But in making those decisions you must be both 1) reasonable and 2) viewpoint neutral. You cannot discriminate against a viewpoint because you find it offensive. What may look like “tasteless sarcasm” to you may, instead, simply be another viewpoint.
The case is Freedom from Religion Foundation v. Abbott, decided by the 5th Circuit on April 3, 2020.
DAWG BONE: BRIDLE THAT DISCRETION, COWBOY.
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Tomorrow: a school shooting you may not have heard about.