It's nice when the courts put hypersensitive, bigoted school officials in their place. In a law.com article,
A second-grader's singing of a fire-and-brimstone religious song in a public-school talent show does not violate the First Amendment's Establishment Clause, and prohibiting it deprives her of free speech, a federal judge ruled Monday.
U.S. District Judge Freda Wolfson in Trenton, N.J., sustained a civil liberties challenge to the Frenchtown Elementary School District Board of Education's refusal to let 8-year-old Olivia Turton perform "Awesome God" in the after-school "Frenchtown Idol" contest.
Wolfson found the school board's proffered reason for excluding the song -- namely, that it "had a legitimate pedagogical concern in distancing itself from proselytizing religious speech" -- a subterfuge for unlawful viewpoint discrimination.
The rules for the contest hadn't excluded religious songs. The only rule was that the lyrics must be G-rated. It's sad when you have to make that clear in an elementary school talent contest, huh?
Here were the offending lyrics:
When He rolls up His sleeves
He ain't just puttin' on the ritz
(our God is an awesome God)
There is thunder in His footsteps
And lightning in His fist
(our God is an awesome God)
Well, the Lord wasn't joking
When He kicked 'em out of Eden
It wasn't for no reason that He shed his blood
His return is very close and so you better be believing
that our God is an awesome God
According to the facts in the case,
(W)hen Turton told her music teacher she intended to sing "Awesome God," the teacher decided to submit the lyrics -- due to their content -- to School Superintendent Joyce Brennan for review. Brennan found the song inappropriate because of its "overtly religious message and proselytizing nature..."
Brennan did offer to let Turton select a replacement -- perhaps one with less strident religious content.
Instead, Turton's mother brought the matter to the attention of the school board, which backed Brennan's decision, leading to the law suit, O.T. v. Frenchtown Elementary School District Board of Education, 05-2623.
The Turtons challenged the board's action under 42 U.S.C. 1983 as a violation of constitutionally protected free speech. They were represented by Fair Lawn solo Demetrios Stratis, the New Jersey counsel for the Alliance Defense Fund in Scottsdale, Ariz., a group that deals with religious free-speech issues.
Those school board officials really need to read up on that First Amendment stuff. The Supreme Court gets really antsy when you try to restrict speech because of content. I guess they're just prejudiced, too.
Ruling on cross motions for summary judgment, Wolfson accepted the challengers' argument that "Frenchtown Idol," an extracurricular activity that was open to participation by any child in the town, constituted a limited public forum, in which government "intentionally open[s] a nontraditional public forum for public discourse." In such a forum, the government "may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum ... nor may it discriminate against speech on the basis of its viewpoint."
Wolfson found the school board's decision to exclude "Awesome God," despite the contest's general tolerance for songs with religious themes, constituted viewpoint discrimination. As for the board's argument that it was the song's proselytizing nature that made it objectionable, Wolfson found that the contest rules did not disqualify songs with messages exhorting the audience to action.
Lastly, Wolfson found that the board's viewpoint discrimination could not be justified by the Establishment Clause. Unlike U.S. Supreme Court cases against prayer at public school graduations or football games, participation in the talent show was entirely voluntary and the content was "selected, developed, practiced and performed by the individual students and without substantial interference by the school." The only oversight imposed by the school was that the content be G-rated.
"For these reasons, this Court rejects the notion that the Frenchtown Idol audience would perceive Plaintiff's song as the 'public expression' of anyone other than Plaintiff herself," Wolfson wrote.
Surprisingly, the ACLU found time out from suing cities which have crosses in their seals to file an amicus brief on behalf of the plaintiff. Well, even a broken clock is right twice a day.
Cross-posted at Common Sense Political Thought.
|