Supreme Court Asked to Appeal Restraint on Display Religious Tiles

Nov 16, 2002 03:00 AM EST

The families of two children who were killed in the Columbine High School shootings are asking the U.S. Supreme Court to overturn a ruling that limits religious speech in public schools.

The case stems from a dispute between Columbine High School, which became infamous after the April 1999 shootings, and family members who want to memorialize their slain children on religious-themed wall tiles at the school.

If the Supreme Court agrees to hear the case, it could rule on several points, whether students have the right to express religious views in school and whether school administrators have the authority to censor those viewpoints.

The conservative Rutherford Institute, which is representing the families, has asked the court to overturn a decision by the U.S. Tenth Circuit Court of Appeals, which ruled in June that school administrators had the right to remove wall tiles they deemed inappropriate because of religious content.

In its petition to the court, the civil-liberties group argues that school administrators lacked the legal justification to remove the tiles since they had opened the memorial project to community members.

"The appeals court has said, in essence, that the Constitution allows public officials to search out and censor religious speech simply because it is religious," said John W. Whitehead, the group's president. "This is hostility toward religion, not tolerance and inclusion of all."

The families of shooting victims Kelly Fleming and Daniel Rohrbough sued the school after learning their tiles, which contained religious symbols and scripture verses, were censored and removed from school walls. They had painted the tiles as part of a project to "reclaim" the school after the shootings that left 15 people dead and 23 injured.

U.S. District Judge Wiley Y. Daniel agreed with the families in October 2001 when he found the school in violation of the families' First Amendment rights.

Daniel's decision was initially put on hold by the Tenth Circuit and then overturned in June. While Daniel said the school had created a limited public forum that permitted religious tiles in the school, the appeals court disagreed.

The three-judge panel said the school had the discretion to limit religious speech, basing its decision on the Supreme Court's 1988 Hazelwood School District v. Kuhlmeier case, which involved censorship of a school newspaper. The appeals court considered the tiles "school-sponsored speech," thus giving administrators the authority to censor them.

Steven H. Aden, an attorney with the Rutherford Institute, said the court made a dangerous mistake by citing the Hazelwood ruling. If the Supreme Court lets the decision stand, he said, the six states that constitute the Tenth Circuit -- Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming -- are in store for regressive school policies toward religious speech.

"Under this decision, those six states could now impose an authoritarian-style regime on free expression by students or community members within the confines of a public school," he said.

Schools in those states could put broad restrictions on every facet of religious speech based on the Tenth Circuit's interpretation of Hazelwood, Aden warned.

"If the Tenth Circuit's decision is allowed to stand, the six states comprising that circuit could have religion-free student art displays," he said. "Even if a community art display was held in a high school gym, the school officials could require that no works be displayed with religious symbols."

Attorney Alexander Halpern, who represented the school district, made Hazelwood the centerpiece of his argument. He said the Supreme Court gave school administrators wide latitude when it ruled they could limit speech for a "legitimate pedagogical concern" to create a safe school environment.

He said Columbine High School needed the authority to review and reject certain tiles; otherwise community members could have drawn potentially objectionable messages on the tiles.

"The whole point was that the school came in and said, 'You can put up tiles, but here are the rules,' " Halpern said. "That's not the same as saying, 'You can put anything you want on the tiles and then put them up.' You lay down the rules in advance, then you're not creating a forum for expression. You're really asking people to make decorative things to put up in the school."

Halpern was also quick to dismiss Aden's concern that the Tenth Circuit's ruling could silence any form of religious expression.

"Public schools are a very special and specific kind of environment," Halpern said. "In some respects, they are more like a library than a public park. It's not unusual for a court to say that in the context of a public school, the school administration has much more authority to regulate what appears on the walls of the school than other circumstances."

Halpern and Aden disagreed on the likelihood that the Supreme Court would take up the case. The limits it put on student expression in the Hazelwood decision have been challenged in lower courts with mixed results, creating some conflicts, Aden said. But Halpern said the Tenth Circuit's decision was reasonable, and one he did not think the Supreme Court would consider addressing.

By Robert B. Bluey