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Battle over student's mural message may reach high court

By Chris Hamby
First Amendment Center Online intern

Editor’s note: The U.S. Supreme Court on Oct. 3 refused to hear the case.

The religious murals a student painted on construction panels at Boca Raton Community High School in Florida three years ago are gone, but the court battle they sparked may reach the nation’s highest court.

On a Saturday in early 2002, Sharah Harris and many of her classmates gathered to cover the unattractive panels from the school’s renovations with their own murals, which the school sanctioned, stipulating only that the murals not be profane or offensive.

Harris was shocked to find herself pulled from class the following Monday and asked by Principal Ed Harris (no relation to Sharah) to paint over her murals, which read, “Because He Loved, He Gave,” “Jesus has time for you; do you have time for Him?” and “God Loves You. What Part of Thou Shalt Not Didn’t You Understand? God.” One had a cross in the background.

Harris’ mother, Shelda Harris Bannon, sued the school district, claiming administrators had violated her daughter’s First Amendment rights of free expression and religious freedom. She lost in a Florida federal district court and the 11th U.S. Circuit Court of Appeals, but one legal recourse remains — the U.S. Supreme Court.

And this time she has help. The Rutherford Institute has filed an appeal to the U.S. Supreme Court on Harris’ behalf. The institute was founded in 1982 by attorney John W. Whitehead with the goal of creating “a legal organization that would defend people who were persecuted or oppressed for their beliefs without charging them for such services.”

The Court has yet to decide whether it will hear Bannon v. School District of Palm Beach County, but Whitehead said there had been a good sign for Harris and the Rutherford Institute.

After the institute filed a writ of certiorari to persuade the Court to hear the case, the school board filed a response saying the writ didn’t even warrant a response. Earlier this month, though, the Court ordered the school district to respond.

“There is movement in the Supreme Court,” Whitehead said, “and that is always good.”

At issue in the appeal is the lower courts’ interpretation of the First Amendment and numerous legal precedents, particularly the 1988 Supreme Court case Hazelwood School District v. Kuhlmeier.

In Hazelwood, a public high school in Missouri censored student newspaper articles about pregnancy and divorce that administrators deemed inappropriate. The Supreme Court upheld this censorship, ruling that schools had some editorial control over “school-sponsored speech” in a “curricular activity.”

In Bannon, U.S. District Judge Daniel T.K. Hurley ruled that the school did not create a public forum by telling students to express themselves freely on the murals. Rather, the project “falls squarely in the category of school-sponsored speech,” Hurley stated.

Rutherford Institute attorney Richard H. McDuff insists that Harris’ case is not an example of a curricular activity. Although he agrees that the situation in the Hazelwood case did involve a curricular activity, he says Hazelwood’s restrictions should not apply to Harris’ case, which “had nothing to do with a classroom setting.”

Harris’ argument that the painting was not a curricular activity includes four main points: (1) Students were not required to participate. (2) No grades or credit were given for participation. (3) The painting took place on a Saturday. (4) Students had to pay a small fee to participate.

Both lower courts disagreed with her. In its Oct. 12, 2004, opinion, the 11th Circuit said: “Appellant (Bannon) underestimates how broadly the Hazelwood Court defined curricular activities. To be considered curricular, expressive activities need not occur in a ‘traditional classroom setting.’ Instead, expressive activities are curricular so long as they are merely (1) supervised by faculty members and (2) designed to impart particular knowledge or skills to student participants and audiences.”

Faculty advisers were present during the painting, including one from the Fellowship of Christian Athletes, a group Harris was a member of. The 11th Circuit cited opportunities for students to express themselves artistically, appreciate each other’s artwork and promote school spirit as components fulfilling the second half of the requirements for a curricular activity.

Another point of contention is whether the censorship constituted content discrimination or viewpoint discrimination. Content discrimination is allowed under Hazelwood if the activity is curricular and the speech is “legitimately related to a pedagogical concern in disrupting the school environment.”

Ed Harris, Boca Raton principal at the time and a defendant in the suit, said the mural caused disruption in the school environment. The murals received news media attention with newspaper and television reporters showing up at the school.

But Bannon said the murals created no problems.

“Principal Harris made it out that there was such a commotion and it was a problem,” she said. “That just wasn’t true.”

Bannon said one teacher was offended by it and complained, while many students said they felt bad for her daughter.

Bannon and the Rutherford Institute hope the Supreme Court will agree with them that the mural censorship was an example of viewpoint discrimination, which is not allowed under Hazelwood even if the situation is a “curricular activity.”

In a separate opinion, 11th Circuit Judge Susan H. Black said that although she thought Harris’ case was an example of viewpoint discrimination, she interpreted Hazelwood as allowing viewpoint discrimination. Black did agree, though, with the overall ruling of her colleagues.

The 11th Circuit also noted that the principal directed the removal of other murals, which contained gang symbols, profanity and satanic images. Harris, who is now principal at Glades Central High School, another public high school in the Palm Beach district, was unavailable for comment.

But Whitehead asserts that if a school is going to allow different viewpoints, it can’t discriminate against one, such as a religious viewpoint.

JulieAnn Rico Allison, chief legal counsel for the Palm Beach County school board, wants the Supreme Court to uphold the rulings of the two lower courts.

“This case was important because it addressed the district’s policy on neutrality, which we respect and try to adhere to,” she said. “I think the result was appropriate, and it was one that balanced the rights of the students and the school.”

Nearly lost in the midst of a high-stakes legal battle has been the girl who started it all, Sharah Harris, who recently finished her junior year in college. Bannon said her daughter called her at home after the incident, crying and very upset at being pulled from class to paint over her murals.

Harris has been ridiculed and ostracized because of the incident, Bannon said. A year later, in Boca Raton Community High School’s 2003 graduation, Bannon said she was shocked to hear a student’s graduation speech mentioning the incident, ridiculing her daughter, who was then a year removed from high school.

“If this could happen to our daughter who is strong and outgoing,” she said, “I fear for what could happen to someone who isn’t.

“This came about in a very innocent way and should have never gotten to this point. I hope the Court will recognize that students don’t have to check their rights of speech at the classroom door.”

Bannon, who describes her family as one of “strong faith,” wants an apology from the school and a statement expressing a new school policy that would condone future freedom of expression in this vein, she said.

As an attorney, Whitehead recognizes that a Supreme Court ruling in this case could have far-reaching consequences, revising how Hazelwood is interpreted and, he hopes, greatly expanding the definition of viewpoint discrimination.

McDuff anticipates, based on his experience with the Court, that it will decide whether or not to hear the case by about mid-June.

Whitehead says many similar lawsuits could be avoided if more school board officials and lawyers better understood the nuances of First Amendment law. The Rutherford Institute usually negotiates with schools in an attempt to avoid such lawsuits, he said, and he has noticed a trend in who typically objects to religious speech in public schools.

“In most cases students aren’t the ones who complain,” he said. “It’s teachers and officials who don’t know the law.”

Whitehead said he has also noticed that schools are getting increasingly defensive, often taking legal action very personally and even hiring public relations firms.

In June 2004 the Rutherford Institute, which is based in Charlottesville, Va., released “Religious Freedom Under Siege In America: A Special Report From The Rutherford Institute,” in which it cited numerous cases including Bannon as part of an “unseen epidemic” of government infringing upon individuals’ religious beliefs.

The report says that for devout individuals religion is “a viewpoint that pervades the individual’s entire persona and affects all of the person’s thoughts, actions and attitudes” which cannot “be turned on and off like a television.”

The concluding paragraph of the report says, “We abuse the First Amendment when we use it to drive religious speech into hiding.”

The Rutherford Institute, which gained notoriety in 1997 by helping Paula Jones in her sexual harassment lawsuit against President Bill Clinton, is not associated with any religious organizations, but it has defended the religious rights of many individuals from different faiths.


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Disputes involve Bible and sentencing in Colorado, Florida students' religious mural, Nevada tax protester and Kentucky town's anti-leafleting ordinance. 10.04.05

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