Court cites Hazelwood to defend school’s removal of religious reference

As co-president of the Taconic Hills Middle School student council, an eighth grade student had a warm message to share with her classmates at the school’s annual “Moving Up” ceremony in June 2009.

“As we say our goodbyes and leave middle school behind, I say to you, may the LORD bless you and keep you; make His face shine upon you and be gracious to you; lift up His countenance upon you, and give you peace.”

But a decision issued last month from the 2nd Circuit Court of Appeals in New York defended the New York school district’s right to remove that very closing line from the unnamed student’s speech. No surprise here, but Hazelwood — specifically the permission of “content-based discrimination” — was cited by the court as the “governing standard” in its ruling.

According to the court, the student’s address for the ceremony constituted “school-sponsored expressive activities.” The middle school, for example, “funds and generally organizes” the ceremony, which is held in the school auditorium. The school’s letterhead appears on promotional materials for the ceremony. If observers such as “students, parents, and members of the public might reasonably perceive [the speech] to bear the imprimatur of the school,” then the school essentially has the right to use Hazelwood to change a student’s speech.

The irony lies in the fact that the school’s single reason for creeping into the gray area of the student’s First Amendment free speech freedoms was, well, the First Amendment.

As the student’s English and Language Arts teacher, student council faculty adviser, principal and superintendent reviewed the speech, they grew concerned the final line was “too religious” and therefore would infringe upon the Establishment Clause. The student was referencing Verses 24-26, Chapter 6 of the Book of Numbers of the Old Testament.

The key to the appeals court’s decision, however, was to determine whether the school’s actions “reasonably related to legitimate pedagogical concerns.” By labeling the removal as a “content-based restriction” on speech, it explained “the final sentence in [the student’s] speech consisted of a direct quotation from the Old Testament calling for a divine blessing of the audience, rather than a statement offering a religiously-informed viewpoint on an otherwise secular subject matter.”

That fear has been reversed in other cases, most notably when high school cheerleaders in Texas decided to paint Bible verses on banners that the football team would tear through upon entering the field. By directly quoting Hebrews 12:1 — “And let us run with endurance the race God has set before us” — school officials, like those in Taconic Hills, feared they were violating the law on religious expression at public school events.

Administrators said the cheerleaders couldn’t use the banners. In response, 15 cheerleaders and their parents sued the district. An injunction allowed the cheerleaders to keep the banners for the rest of the season, and a jury trial is set for this June. The Texas attorney general, Greg Abbott, wrote a letter to the superintendent defending the cheerleaders’ First Amendment rights.

Is there a ideological gap between these two cases? Or is the logic surrounding Hazelwood and First Amendment rights so circular that no one really knows how to interpret it? Is the football game any less of a school-sponsored activity than a student council speech? It’s definitely an issue the courts will be addressing more in the future.