High Court’s Monument Ruling and the Schools

By Mark Walsh — February 25, 2009 2 min read
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The U.S. Supreme Court today ruled that a city’s acceptance of a monument for a public park represents government speech and thus does not implicate the First Amendment free speech rights of a group seeking to add its own monument to the park.

The court’s 9-0 decision in Pleasant Grove City, Utah v. Summum (Case No. 07-665) arguably holds implications for public schools. Some groups had argued that a ruling that went the other way--for a religious sect called Summum that wanted to put a monument detailing its principles in a park in the Utah city where a Ten Commandments monument is displayed--would open thorny free speech issues for schools.

There are also implications for efforts to display the Ten Commandments in schools, although the decision hardly settles that question.

I wrote about the school implications in the case here.

Justice Samuel A. Alito Jr., in the main opinion, provides a detailed tour through the court’s First Amendment “public forum” cases, including a discussion of such school cases as Perry Education Association v. Perry Local Educators’ Association, a 1983 case that dealt with teachers’ unions’ access to school mailboxes, and Good News Club v. Milford Central School, a 2001 case involving the free speech rights of a student religious club.

Justice Alito noted that parks and school facilities can accommodate many different speakers or events under the appropriate public forum circumstances, but governments cannot easily accept all privately offered monuments.

Of interest, though, is a distinction Alito made for monuments in which many people in a community “could place the name of a person to be honored or some other private message.” That brings to mind a contentious case involving a memorial project at Columbine High School in which some community members sought to put religious messages on tiles, only to be told such messages could not be included in the permanent memorial.

In the Pleasant Grove case today, six justices wrote or joined concurring opinions, several of which noted concerns about the religious nature of the monuments in the case, which has been “litigated in the shadow of the First Amendment’s establishment clause,” Justice Antonin Scalia noted.

But “the city can safely exhale,” Justice Scalia said. “Its residents and visitors can now return to enjoying Pioneer Park’s wishing well, its historic granary—and, yes, even its Ten Commandments monument—without fear that they are complicit in an establishment of religion.”

Justice David H. Souter, however, warned that cities and other governments must take pains to make sure religious monuments don’t turn into state endorsements of religion.

“If the monument has some religious character, the specter of violating the Establishment Clause will behoove [the government agency] to take care to avoid the appearance of a flat-out establishment of religion, in the sense of the government’s adoption of the tenets expressed or symbolized,” Justice Souter said.

A version of this news article first appeared in The School Law Blog.