10th Circuit: Controversial campus statue not unconstitutional

By The Associated Press
07.29.05

DENVER — An appellate court yesterday ruled that a public university had not unconstitutionally endorsed an anti-Catholic viewpoint by allowing on campus a statue depicting a clergyman with a bishop's miter that some said was offensive to the Roman Catholic Church because of its phallic appearance.

A student and faculty member filed a lawsuit after the statue — titled "Holier Than Thou" — was installed on Washburn University's campus in September 2003. The display was part of a larger outdoor display at the municipal university in Topeka, Kan. The statue has already been removed, as scheduled, from the campus.

Ruling in O'Connor v. Washburn University, the 10th U.S. Circuit Court of Appeals upheld a lower court's decision and said the school had not violated the First Amendment.

"This court holds that the statue's placement on Washburn's campus under these circumstances does not constitute an unconstitutional endorsement of an anti-Catholic message," the opinion said.

The court also said that in the context of art, any reasonable observer would understand the school did not endorse an anti-Catholic message, regardless of whether the statue actually sent such a message.

In addition, the court said the plaintiffs' request for a preliminary injunction seeking the sculpture's removal was moot because the statue had already been removed.