A month after the Freedom From Religion Foundation and the ACLU of Ohio sued the Jackson City School District over a portrait of Jesus in a middle school, the district moved it to Jackson High School.
The ACLU of Ohio and FFRF thwarted the overt attempt to elude the Constitution by filing an amended legal complaint in early April, adding as plaintiff “Sam Doe 4,” who has a minor child attending Jackson High School, and “Sam Doe 5,” a student who attends Jackson High School. Also filed is a motion for a temporary restraining order and memorandum in support of the motion.
FFRF Senior Staff Attorney Rebecca Markert first complained Jan. 2 about the unconstitutional painting. Superintendent Phil Howard refused to remove it, warning “it would take a court order to remove the picture.” The lawsuit was filed Feb. 6 on behalf of several local plaintiffs, all parents of children or students in the district. The suit sought removal of the portrait and a permanent injunction barring “any substantially similar display.”
The devotional painting titled “the Head of Christ” was prominently displayed on an entrance wall at Jackson Middle School.
The Jesus painting was moved March 13 to the high school near its Fine Arts Department. The school board adopted a policy in February designating the high school space and the middle school foyer as “limited public forums.”
At the portrait’s new location in a public area at Jackson High, it’s encountered by nearly 700 students, faculty, staff and community members. The school board meets at Jackson High, and the school hosts a variety of other events there that are open to the public.
The district also announced, a claim not previously made, that it did not even own the portrait, saying that it was owned by the Hi-Y Club, a Christian service club at the high school.
Howard, a co-defendant, told The Associated Press that the portrait was moved at the request of the club, which put it up in 1947 in the high school. In 2004, the high school moved to a new building and the previous building became the middle school. No middle school clubs claimed to own the portrait.
The plaintiffs note that district employees, not high schoolers with the Hi-Y Club, removed the portrait from the middle school, transported it to the new location and affixed it to the high school wall with permanent bolts.
At the school board’s March 12 meeting, Howard acknowledged that the limited public forum policy was new and that the portrait violates the Establishment Clause if it is government speech.
“We have to respect the rights of the club,” Howard is quoted as saying. “Failure to do so might open the district to even another lawsuit — this time by the H-Y Club” — or violate the Constitution by “turning the portrait into government speech.”
Howard claimed that “it’s student speech, not government speech.”
The plaintiffs suspect that the district hoped FFRF and the ACLU of Ohio, which had a middle school plaintiff and others with standing to sue, wouldn’t be able to find a plaintiff who attended the high school.
“This is a transparent effort to shake off a lawsuit, and we’re grateful to the high school student and parent of a student who have come forward to ensure the challenge continues,” commented FFRF Co-President Annie Laurie Gaylor.
“It doesn’t matter which public building the portrait is in. It’s an unconstitutional endorsement of religion on the part of a public school,” said Nick Worner, with the ACLU of Ohio.
FFRF and the ACLU allege that display of the portrait infringes on the plaintiffs’ First Amendment right to freedom of religion, causing them to question whether their religious beliefs will be respected by the school district. The display forces them to view a portrait representing religious views promoted by the district that differ from the way they choose to view religion and morality.
The school district actions have “no legitimate secular purpose.”
“None of the rationales offered by the school board can obscure what any reasonable observer would recognize: 1) that the prominent display of a portrait of Jesus in a school hallway is government speech 2) that the display and maintenance of the portrait endorses one particular religion; and 3) and that the school board acted with a predominantly religious purpose when it accepted, installed and displayed the portrait of Jesus Christ at Jackson City High School.”
The plaintiffs charge that the so-called “limited public forum” is a contrivance, lacking any evidence of a written or well-established prelitigation policy for such usage. Two of the school’s only three noncurriculum-related clubs are Christian-based organizations. The Jackson High School student handbook lacks a procedure for creating new clubs on currently unrepresented interests, creating “de facto, viewpoint discrimination” in terms of access to the limited public forum.
The facts of the case are nearly identical to those in a 1994 case decided by the 6th Circuit appeals court in which the court held it’s impermissible to place a copy of the same ‘Head of Christ,” a famous portrait by Warner Sallman, in a public school hallway with trophy cases.