Christmas Ornaments: Student Free Speech or Too Much Religion in School?

[COMMENTARY] The parents of a fifth-grade student in Saginaw have just lost a round in a legal battle over candy cane Christmas ornaments with religious cards attached. A federal appeals court has upheld a lower court ruling that the use of these religious cards in a public school violates the constitutional separation of church and state.

The case, Curry v Hensiner, pitted student free-speech rights against a school claiming that the establishment clause (the separation of church and state) required them to turn down a religious product. The fifth-grader, Joel Curry, chose to make candy cane Christmas ornaments that had a card attached explaining how the candy canes were symbolic of Christ. The school, after much deliberation, told him he could not “sell” that product in the school’s simulated market set up in the gymnasium, but he could sell them after school in the parking lot. He was not punished in any way; in fact, he received an A on the project from his teacher.

The parents still filed suit against the school and they were represented by the Alliance Defense Fund, one of the largest and most prominent Christian legal groups in the nation. The district court granted summary judgment in favor of the school and the 6th U.S. Circuit Court of Appeals just upheld that ruling. Attorneys for the parents are filing a motion for an en banc rehearing, which would mean all of the judges on the 6th circuit could consider the case and take a vote on whether to uphold that decision. Should that fail, they will likely ask the Supreme Court to take the case next year.

Continued -

Analysis of the Ruling

The outcome of this case is a bit surprising. In 1995, a coalition of advocacy groups ranging from the ACLU to the National Association of Evangelicals put out a joint report on religion in public schools that sought to explain to school administrators and teachers what is and is not legally allowed. In terms of student religious speech and classroom assignments, that report says:

Students may express their religious beliefs in the form of reports, homework and artwork, and such expressions are constitutionally protected. Teachers may not reject or correct such submissions simply because they include a religious symbol or address religious themes. Likewise, teachers may not require students to modify, include or excise religious views in their assignments, if germane. These assignments should be judged by ordinary academic standards of substance, relevance, appearance and grammar.

And this follows a long history of cases that support that principle. For instance, if the school holds a talent show a student may sing a religious song if he or she chooses. If a teacher gives students the assignment of writing a paper about someone they admire, a student may choose to write about Jesus. In art class, a student may choose to paint a religious subject if he or she chooses to do so. This is all a very well settled area of law and is not considered controversial.

There is also a large body of precedent governing when the school may censor student expression, beginning with the Supreme Court’s ruling in Tinker v Des Moines. That case clearly stated: “In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.” It further set the standard for a constitutionally valid reason, saying that student speech could only be censored if it could reasonably be viewed as leading to “material or substantial disruption” of the school’s educational mission. Obviously, this situation does not meet such a standard.

The school argued that the establishment clause required them to reject the student’s product, but that would be true only if the expression being made here was government speech rather than student speech. They further asserted that they had a legitimate interest in avoiding possible offense by other students. The appeals court agreed:

The school’s desire to avoid having its curricular event offend other children or their parents, and to avoid subjecting young children to an unsolicited religious promotional message that might conflict with what they are taught at home qualifies as a valid educational purpose.

But this rationale does not hold up under scrutiny. How is this situation any different from the situations cited above where a student chooses a religious subject for a class assignment? It is just as likely that a report on Jesus, chosen by a student and read in front of the class as many such reports are, would offend a classmate as well. Or that a religious picture might offend a fellow student in an art class. Or that a religious song in a talent show might offend someone in the audience.

Using that as a basis for censorship is not only constitutionally dubious, it is highly dangerous. The potential for offense does not negate the First Amendment. If the government can use the possibility that a listener might be offended as a reason to censor speech, the First Amendment becomes utterly meaningless. It was written to protect controversial, and thus potentially offensive, speech. Speech that has no potential of offending someone does not need such protection because no one would be motivated to censor it. This is precisely the wrong message to send to our schoolchildren.