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View Point Discrimination Violates the First Amendment


March 4, 2012 by Tom Roberts, Esq.

Commentary – View Point Discrimination Violates the United States Constitution

Viewpoint discrimination violates the First Amendment of the United States Constitution.

In March 2007, Central Alabama Community College removed two signs displaying religious messages from the backfield of the school’s baseball field despite selling the sign space for a sponsor fee of $1,000 each.

Central Alabama Community College President Linda McGuirt and Dr. Amelia Pearson, Provost and Dean of Instruction, may need to spend some time in the library educating themselves and others on the importance of religious freedom and its place as a bedrock of our national liberties guaranteed by the First Amendment to the United States Constitution. The Establishment Clause means neutrality not hostility.

The school cited state policy mandating that “the use of facilities shall be compatible with the philosophy, functions and objectives of the institution.” Citing responsibilities as guardians of state funds and as administrators of the college, Dr.  Pearson is reported to justify the decision to remove two signs displaying religious messages stating that “We don’t have the money to defend such a case if someone threatened a lawsuit. You’re going to lose that battle in court. We wouldn’t be very good guardians of state funds if we were to take a stand here.”  However, it’s that response to wanna be censors and guardians of political correctness, that may cost the school.

In Good News Club v. Milford Central School, decided June 11, 2001, the United States Supreme Court reaffirmed that schools may not discriminate against speech based on viewpoint, including religious viewpoints. In that case, a religious club sought to use an New York public elementary school facility after school to provide religious instruction and fun activities for children. It is illegal to use religious viewpoint as a basis for denying a student club access to the schools facilities available to other groups. The Court stated “Speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from religious viewpoint.” The Establishment Clause of the Constitution does not give government a license to oppose religion. The Court stated “For the ‘guarantee of neutrality is respected, not offended, when the government, following neutral criteria and even handed policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.” The Court found significant the fact that the club sought to use the school facilities after school hours and that children were not required to attend. The Court rejected the notion that the school could justify its exclusion of the club because small children might perceive endorsement. The Court stated “Even if we were to inquire into the minds of schoolchildren in this case, we cannot say the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive a hostility toward the religious viewpoint if the Club were excluded from the public forum.” It continued, “Any bystander could conceivably be aware of the school’s use policy and its exclusion of the Good News Club , and could suffer as much from viewpoint discrimination as elementary school children could suffer from perceived endorsement.” The endorsement inquiry is not about the perceptions of particular individuals or saving isolated nonadherents from discomfort. It is for this reason that the reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious speech takes place.

The U.S. Supreme Court has made it clear that schools like CACC are not permitted to discriminate against student clubs or sponsors of signs simply because of their religious activities or viewpoints. The Supreme Court made that clear in Rosenberger v. Rector and Visitors of the University of Virginia, 115 S.Ct. 2510, 2516 (1995) where it ruled the University was required to pay the publication expenses of a student Christian newspaper in accordance with its general policy of funding student newspapers.

The Supreme Court in Lamb’s Chapel v. Center Moriches Union Free School District, 408 U.S. 384 (1993) held that a school which allows after-hours access to its facilities to a wide variety of public organizations cannot deny that same access to religious groups.

CACC could easily find themselves on the losing side of a First Amendment law suit for censoring of the speech based upon its viewpoint.

The school’s action is a denial of the right of free speech and risks fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires.  If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.

Thomas H. Roberts, Civil Rights Attorney

Freedom Works Foundation
Richmond , Virginia


But see Lehman v. City of Shaker Heights

See also – Loch; Rockford; Mosley; Tinker; Aubrey v. Cinc…


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