Student religious speech contested
'God Bless America' art on school yearbook cover triggers federal lawsuit
By refusing to grant a temporary restraining order, U.S. District Judge Joe Billy McDade allowed Ridgewood Elementary School in Rock Island to replace the slogan or use an alternative cover. The school claimed the design of the 12-year-old artist, Melissa DeLaRosa, conflicted with the separation of church and state.
Attorney Steven Ames, who represented the student, argued that the design was not a violation of the First Amendment's Establishment Clause based on rulings that protected schools that mentioned or taught religion.
Although the court did not rule that using "God Bless America" on the cover was an Establishment Clause violation, the judge did say school officials were "rightly concerned" about the matter.
One factor that apparently swayed McDade was the age of the students who would receive the yearbook. In issuing his decision, he noted that elementary school students would have more problems than high school students discriminating between speech initiated by the school vs. that produced by students.
"[McDade] felt the school had the discretion to decide what was printed on the cover," Ames said.
The judge, who issued his ruling from the bench, cited Hazelwood School District v. Kuhlmeier as precedent for the school to alter the student's design. The U.S. Supreme Court's 1988 decision gave administrators greater leeway to control some student publications.
Principal John Frieden said the yearbook was sent to the printers with a new design. He said DeLaRosa asked the school not to use her artwork if she could not include "God Bless America."
McDade will rule on the student's request for a permanent restraining order next month, but Ames said it is a moot point because the yearbook will have already been printed. Ames noted, however, that the judge could still find the school violated the student's First Amendment rights.
Student religious free speech has sparked lawsuits at two other schools.
A federal court in New Jersey ruled in February that the Egg Harbor Township School District did not violate the free-expression rights of a student who was forbidden from distributing gifts bearing religious messages at classroom parties.
Daniel Walz, 9, and his mother Dana Walz, with the help of religious civil-liberties advocate The Rutherford Institute, sued the school district over three incidents in which they claim the school restricted Daniel's free speech.
The first incident occurred in April 1998 at the H. Russell Swift Elementary School, when Walz was forced to return pencils he had given to his prekindergarten classmates that bore the message "Jesus loves the little children."
The other two incidents occurred during December of Walz's kindergarten and first-grade years when he wanted to pass out candy with a religious story attached.
While the school district did not have a policy on the distribution of religious materials at the time of the first incident, the board adopted one in the summer of 1998. The policy said Walz could distribute items bearing religious messages so long as it was not during instructional time.
Walz and his mother still sued the school district.
U.S. District Judge Jerome Simandle said the district's restriction was "extremely reasonable."
The Rutherford Institute filed an appeal in April.
In another religious freedom of expression case in Wisconsin, the U.S. Court of Appeals for the Seventh Circuit ruled that a school district acted properly in not allowing a student group to paint a crucifix on a school mural at Tremper High School in Kenosha.
In spring 1998, Kenosha Unified School District invited the student Bible club Trojans Loving Christ to paint a mural inside the school along with other groups, but would not allow the students to include a cross.
The students, with the help of the Liberty Counsel, a Florida-based religious advocacy group, sued the school district. They claimed the restriction violated their First Amendment rights.
The appellate court disagreed.
Interim Superintendent Joseph Hentges maintained that Tremper had been supportive of religious freedoms by encouraging the Bible club and giving its students the opportunity to participate in creating the school mural.
The Liberty Counsel will ask the U.S. Supreme Court to hear the case.n
Cases: DeLaRosa v. Rock Island Schools, No. 02-4030 (C.D. Ill. April 16, 2002); Walz v. Egg Harbor, 187 F.Supp.2d 232 (D.N.J. 2002); Gernetzke v. Kenosha Unified School Dist., 274 F.3d 464 (7th Cir. 2001)
reports, Spring 2002