TRI In The News

Nativity Scene at GCT Primary Continues to Stir Controversy

January 16, 2012

From The Paragould Daily Press

The Greene County Tech School District has received three letters from different organizations demanding Superintendent Jerry Noble to respond in regards to a bulletin board decorated with a nativity scene during the holidays at GCT Primary School.

Letters from Americans United for Separation of Church and State, the Freedom From Religion Foundation (FFRF) and the American Civil Liberties Union (ACLU) of Arkansas Foundation said the display was unconstitutional and some have threatened legal action.

Ian Smith, staff attorney for Americans United, said he had sent two letters, the first dated Dec. 14, to Noble and other school board members demanding a response by Dec. 21. The second letter was dated Dec. 29 and read: “If we do not receive a response to our letter within the next 14 days, we will be forced to consider further action.” As of Friday, Smith said he had not received a response.

“What’s going to happen now is I am going to gather together all of the information about this [matter] and basically send it up the chain to the senior attorneys here [Americans United] to discuss possibilities moving forward,” Smith said. “Be that litigation or whatever else.”

Noble said he had not responded to the letters pending legal advice. He said the Rutherford Institute and Liberty Counsel had volunteered to help the school district in the matter and the Alliance Defense Fund had sent a list of court cases that might be applicable to the situation.

“As we go forward on this issue, we’re going to look at the case precedents provided by those organizations and the case precedents provided by [the groups who sent the letters],” Noble said. “We want to look at our practices from every angle and not let outside organizations make our decisions for us. So, we’re going to be looking at things supplied from both sides of the fence as we make our decisions on speech issues.”

Smith said the nativity scene display violated the “Establishment Clause” of the First Amendment of the U.S. Constitution which states: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” He cited the 1980 U.S. Supreme Court case Stone v. Graham in which the court ruled that a Kentucky statute requiring the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in the state was unconstitutional.

“The nativity display is a Christian display that celebrates the birth of Jesus Christ,” Smith said. “It’s purpose is to communicate a religious message. The posting [of the display] by a school employee sends the message of endorsement of Christianity. It tells the students that the school district and by implication the government endorses Christianity over other religions and encourages students to be Christians.”

However, Noble said the more he and the school board members thought about the issue, the more they realized “the issue shouldn’t be a religious one in nature.”

“It’s more a basic freedom of speech issue than it is a religious speech issue,” Noble said. “We know you can’t do anything to establish a religion on the part of Greene County Tech and we’d never let our staff post signs saying ‘convert to Christianity’ or ‘Jesus saves.’ We’d never attempt to do that sort of thing as a public school.

“However, it seems to us that if you can celebrate the birthdays of historical figures as part of a federal and state holiday, you shouldn’t have to screen out the mention of an individual behind a federal and state holiday who happens to hold religious significance to some,” he added. “To us, that’s a pretty high level of censorship.”

Smith said he did not believe the display had a secular purpose such as teaching the origins of the Christmas holiday. He said he was also aware of other Supreme Court decisions where religious displays had been allowed in public forums. In the 1984 case Lynch v. Donnelly, the Supreme Court ruled a crèche displayed in a city’s shopping district did not violate the constitution. However, Smith said he did not feel such precedents would apply to this matter because “public schools are not traditionally considered to be public forums.”

“Essentially, for that argument to work, what the school would have to have done would be to say ‘our walls in this elementary school are open for anybody to come in and put up anything they want and we don’t care what that is,’” Smith said. “That is not what happened here. What happened here was you had a public school employee who is a state employee, a government worker, putting a religious display on a government building. That is plainly unconstitutional.”

In the 1971 Supreme Court case Lemon v. Kurtzman, the court established a three-pronged test it uses to review Establishment Clause claims. Under the “Lemon test,” courts inquire “whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion and whether it creates an excessive entanglement of government with religion.” Smith said while he realized complete separation of church and state was impossible, this matter would not pass the Lemon test.

“We’re not saying that in all cases the government must expunge all traces of religion,” Smith said. “The simple bottom line is this is a public school. The kids are coerced into being there. When the public school forces them to be exposed to religious indoctrination, it’s a clear violation of what the separation of church and state was meant to do.”

GCT School District attorney Donn Mixon advised Noble to remove the display. But, Noble allowed the display to be put back up after “overwhelming public support” for it.

“He [Mixon] said it was completely a district decision as far as what to do,” Noble said. “You know, I don’t fault him as far as the original advice to remove the nativity scene decoration. As [school] district attorney, his job is to keep us out of court as much as possible and he knew someone might want to take us to court over this.”

Noble said attorney Stephanie Nichols of Ward had volunteered her services. He said Nichols is a private Arkansas attorney who had worked in education.

“The overwhelming response [from the public] has been in support of taking a stand for freedom of speech on this issue,” Noble said. “I really appreciate the community’s support on this issue because I think it’s really important for our students that we don’t have a stringent, unreasonable, overly-censored educational environment. I recognize, though, that we can’t base our speech decisions primarily on what the majority wants or doesn’t want when a constitutional issue is at stake. I know we’ll have to do whatever the courts say, but I hope courts understand the far-reaching impacts a precedent against this could have. What’s next? Will our teachers be able to give each other Christmas cards without fear of causing a lawsuit?”