The Case between the Devil vs God and the First Amendment Law

The facts are not in dispute. Three years ago the Boca Raton (Fla.) Community High School launched upon a program of renovation. A contractor erected plywood barriers in the halls. The panels were unsightly. Accordingly, Principal Ed Harris approved a pleasant proposal: Students could decorate the panels with murals, so long as the murals were not "profane or offensive."

Thus, on a Saturday in February 2002, Sharah and her friends in the Christian Athletic Club paid a nominal fee and went to work. Alas, one of their panels included a cross with a message, "Because He Loved, He Gave." Another carried this legend: "Jesus has time for you. Do you have time for Him?"


The following Monday morning, to quote from an opinion of the 11th Circuit, Principal Harris heard "a commotion" near Sharah's murals "involving vocal students and teachers." Later that day, the murals received media attention from three TV stations and the Boca Raton News. In a deposition Harris said, "This publicity and controversy distracted the attention of students, teachers and administrators from schoolwork, teaching and administrative duties."

Principal Harris soon caved. He had no more time to spend on the incident. His assistant thus summoned Sharah from her Monday afternoon classes and ordered her to paint over the offending matter. Now! She complied. The horrid commotion subsided. Eventually her mother sued for violation of her daughter's civil rights. The U.S. District Court sided with Principal Harris, and last year a panel of the 11th Circuit affirmed. The mother's appeal, backed by the respected Rutherford Institute of Charlottesville, Va., goes to conference in the Supreme Court this week. We will soon know if the high court will take the case.

The question is, Should the Supremes hear the appeal? Maybe they "should," for the case presents an interesting question of First Amendment law. All the same, daughter Sharah long ago left the high school for college. Nothing remains of the suit except a dubious question of doubtful damages.

In an unsigned "per curiam" opinion, the 11th Circuit panel held that in the context of a public school, authorities must tolerate student expression unless (1) it is likely to result in "substantial disruption" or (2) it might reasonably be perceived as bearing the school's approval.

In the case at hand, both the district court and a three-judge panel in the circuit court concluded that Sharah's murals fell into the second category, i.e., some parents might reasonably perceive that "Jesus has time for you" was the school's official assertion. This finding may not say much for the perceptions of parents in Boca Raton, but there was more. The incident had drawn unwelcome attention from the local media. It had caused a "commotion." How much commotion, one may reasonably inquire, is intolerable commotion? The principal found that the publicity "distracted the attention" of students and teachers. How much "distraction" is constitutionally unbearable distraction?

In a concurring opinion, Circuit Judge Susan H. Black came down firmly on the side of principal Harris and other school administrators. They had "a legitimate pedagogical concern in avoiding disruption to the learning environment from religious debate erupting on school walls." Besides, if the school allowed a mural to say "God loves you," it might also have to authorize a mural proclaiming "Your God is dead! Long live Beelzebub!"

In reaching that conclusion, Black split from her colleagues, Judge Rosemary Barkett and Judge Frank J. Magill, on a murky question of First Amendment law. In censoring young Sharah's mural, was the principal engaging in "viewpoint discrimination" or "content discrimination"? To this longtime observer of appellate jurisprudence, the distinction is either foggily clear or clearly foggy. Barkett and Magill concluded that the principal's order was "a reasonable content-based restriction." Black thought otherwise — it was the "viewpoint" that governed — but no matter. In the end, the judges agreed that the school had a valid interest in avoiding "disruption." Defenders of the First Amendment may be forgiven a small sigh of dissent.

My own conclusion is that Gilbert & Sullivan had it right: A high school principal's lot is not a happy one. If the high court takes this case, the distinction between content and viewpoint may be clarified. But don't bet your bottom dollar on it.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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