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Atlanta’s federal appeals court has ruled that a Florida high school principal did not violate a girl’s free speech rights when he refused to allow religious imagery and words such as “Jesus,” “God” and a crucifix to remain on a section of a school mural she painted. But because the panel of the 11th U.S. Circuit Court of Appeals split 2-1 over why the principal’s actions were constitutional, the girl’s lawyer hopes to get the full 11th Circuit or the U.S. Supreme Court to reconsider the ruling. “The court is obviously conflicted,” said Richard H. McDuff, a Fort Lauderdale, Fla., attorney who represented the girl on behalf of the Rutherford Institute, a legal group that defends religious speakers and abortion protesters, among other clients. Lawyers on the other side of the debate, who support a high wall between church and state matters, agreed that the 11th Circuit and federal courts in general are having trouble deciding the circumstances in which a school principal can censor religious expression. “In general, people are uncertain where the Supreme Court is,” said Marc D. Stern, a lawyer with the American Jewish Congress, which submitted a friend-of-the-court brief siding with the school principal in the 11th Circuit case. The problem in this case stemmed from construction at a Boca Raton, Fla., high school that resulted in dozens of large plywood panels in the hallways. To beautify the school, students were invited to paint murals on the panels. According to the 11th Circuit decision, school officials did not specifically prohibit students from expressing religious views, but they did instruct students that their artwork could not be profane or offensive to anyone. Senior Sharah Bannon and other members of the Fellowship of Christian Athletes painted several murals with various religious messages on a Saturday. One was next to the school’s main office, had a crucifix in the background and paraphrased John 3:16. Another mural read, “Jesus has time for you; do you have time for Him?” Another mural announced, “God Loves You. What Part of Thou Shalt Not Didn’t You Understand? God.” By Monday morning, school principal Ed Harris found “a commotion” had ensued among vocal teachers and students gathered around the murals, according to the court, followed by attention from reporters from local newspapers and television stations. Harris and a teacher in charge of the mural project then told Bannon she would need to paint over the religious words and images. “Notably,” the majority decision by Judge Rosemary Barkett and visiting 8th Circuit Senior Judge Frank J. Magill said, Harris also “directed the removal of profanity, gang symbols, and satanic images from students’ murals.” BACKED BY ‘HAZELWOOD’ When Bannon sued Harris and the School District of Palm Beach County, a federal judge summarily ruled for the defendants. The reason: The school mural was not a public forum but a vehicle for “school sponsored speech” that the principal could control as long as the restrictions were reasonably related to educational goals of disassociating the school from religious endorsement and avoiding disruptions from the debate prompted by religious language on the school walls. The basis for the judge’s decision was the U.S. Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier, 484 U.S. 260. In the decision, the justices held 5-3 that a school principal did not violate students’ free speech rights when he edited two stories about pregnancy and divorce out of the student newspaper. Writing for the majority, Justice Byron White, now deceased, held that educators “do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” But for the past 16 years, courts have not settled on whether Hazelwood allows educators to censor speech at the school based on the content of the speech or the viewpoint of the speaker. It’s a critical but hard-to-make distinction, experts said, because censorship based on content is typically easier to defend than censorship based on a speaker’s viewpoint. COURT SPLIT ON REASONING The debate split the 11th Circuit panel. Barkett and Magill held that the principal’s decision was justified because barring the religious messages — along with profane, gang-related and satanic images — was discrimination based on content. Viewpoint-based discrimination, they held, was not allowed by the Hazelwood decision. But Black saw the case differently, concluding the principal’s action “was an instance of viewpoint-based discrimination, not content-based discrimination.” “A finding of viewpoint-based discrimination, however, does not change the result,” Black added, because the Hazelwood case “allows for viewpoint-based discrimination against school-sponsored student expression.” “If viewpoint discrimination were forbidden,” Black added, then a school that allowed a mural to say “God loves you” also might have to allow a mural to say “Your God is dead. Long Live Beelzebub.” “That would be an absurd result,” Black concluded. McDuff, the attorney for the plaintiff, said if Black’s opinion were upheld in the 11th Circuit or around the country, it would represent “a sea change in the law.” Black noted that the 1st and 10th Circuits have held that the Hazelwood decision allows for viewpoint discrimination while the 9th Circuit takes the opposite view. Supreme Court experts say that a split among the circuit courts is one reason the justices will agree to hear a case. ESTABLISHMENT CLAUSE IGNORED Neither of the judges’ opinions addressed one of the school board’s chief defenses — that the principal had to act against the religious messages in order to prevent a problem with the part of the First Amendment barring government establishment of religion. But for her part, Palm Beach School District chief counsel Julieann Rico Allison said she was pleased with the ruling because it “confirms our policy of neutrality is right.” Allison and Sandra Bosso-Pardo, her senior assistant counsel, said dealing with the whipsaw of religion in public schools — risking free speech claims if they clamp down too hard on religious expression or Establishment Clause suits if the schools appear to endorse religion — is one of their most recurring legal problems. “We want to be compliant to the law,” Allison added, and sensitive to each instance of a religious expression dispute. The case is Bannon v. School District of Palm Beach County, No. 03-13011 (11th Cir. Oct. 12, 2004).

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