by Rob Luther
...Hear my words that I might teach you...
...But my words like silent raindrops fell
and echoed in the wells of silence.
--Simon & Garfunkel
On July 31, 2006, a federal judge ruled against the members of the band "Pawn" and in favor of the Rossford Exempted Village School District in a case that had received strong media attention nationwide. Pawn, a self-described Christian rock band from northwest Ohio, was originally scheduled to perform at a local public high school during school hours to supplement an anti-drug and anti-alcohol assembly. However, after further consideration, school administrators replaced Pawn with another band, fearing that a performance by a band with Christian affiliations would violate the Establishment Clause of the First Amendment. Believing their First Amendment rights to free speech, as well as their Fourteenth Amendment rights to equal protection has been violated, Pawn turned to The Rutherford Institute for help. Institute attorneys then filed a lawsuit against the school district seeking an injunction and damages.
Pawn's attorneys argued that according to Good News Club (a case that TRI successfully litigated before the Supreme Court), the invitation for Pawn to perform provided them with a limited public forum. Good News Club v. Milford Cent. Sch. 533 U.S. 98, 131 (2001).Upon Pawn being granted this limited public forum, attorneys for The Rutherford Institute argued that the school district was not permitted to engage in viewpoint discrimination. In other words, the state could not censor Pawn's speech even though the state may have disagreed with their message.
Unfortunately, the fact that Pawn's performance was scheduled to occur at a public high school during regular school hours forced Pawn up against a mountain of precedent that reflects the vast amount of discretion administrators have to determine who may speak and what message may be conveyed during the school day.
The case's biggest obstacle was Hazelwood, a seminal case and a timeless favorite of school administrators. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988). In Hazelwood, a Missouri high school student wished to publish articles in the school newspaper that addressed social concerns within the school district, particularly, the issue of three students' pregnancies, sexual activity within the school, birth control and the divorce rate within the district. When the principal objected to the publication of these articles, the student brought suit asserting his First Amendment right to free speech. The Supreme Court found that because a public high school was not a traditional public forum the school had the authority to censor the articles without violating the student's First Amendment rights.
The language of Hazelwood that was particularly damaging to Pawn's claim recalled that:
"The control that educators are entitled to exercise over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school is greater than [other] personal expression that happens to occur on the school premises." Id. at 271.
The school district also countered Pawn's reference to Good News by arguing that since only one band was performing, no "exchange of ideas" was set to take place; therefore, the school contended that forum analysis was inapplicable. The school district also recalled the doctrine of "government speech," which recognized that when government chooses to solicit an activity, as to "speak on behalf of itself," the government is not subject to the usual content/viewpoint based rules. In sum, the school argued that they had the right to cancel Pawn's performance because they were not obligated by law to act in a viewpoint neutral manner. Rust v. Sullivan, 500 U.S. 173 (1991). That being the case, it comes as no surprise that Federal District Judge Jack Zouhary ultimately sided with the school by concluding that "[t]his is not a case about the state discriminating against speech and religion, but rather about the state having control over who speaks on its behalf."
Is it consistent with the educational mission of the public school system to be so "closed-minded" to its own students' views on important topics that face not only these students but the world at large? The famous words of Tinker recall that "t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969).The irony of this case is that the school district admitted that they had discriminated against Pawn and had had no qualms about doing so because the law as it currently reads grants public schools this discretion. Yet even if the school's intentions were sincere, they were still misplaced as the band explicitly conceded that they would not make any religious references during their performance.
Social critic M. Stanton Evans reminds us in his book The Theme Is Freedom: "The Founding Fathers wanted to protect religion from federal government interference, not diminish its influence in our public life." Even so, this case demonstrates that misguided notions about the separation of church and state are alive and well in our public schools--for better or for worse.
Rob Luther is a student at Ohio Northern University Pettit College of Law and an intern with The Rutherford Institute's 2006 Summer Intern Program.