TOPIC:
HOLIDAY AND RELIGIOUS DISPLAYS ON CAMPUS: THREADING THE FIRST
AMENDMENT NEEDLE
INTRODUCTION:
When it comes to religion on public college and university campuses, the First Amendment giveth,
and the First Amendment taketh away. While public entities, including public colleges and
universities, may not take steps to establish religion or a specific religion, neither may they take steps
to infringe upon an individual’s free exercise of his or her religious beliefs. As the Supreme Court
wrote, “There is a crucial difference between government speech endorsing religion, which the
Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and
Free Exercise Clauses protect.” [1] This NACUANOTE will examine current issues in First
Amendment jurisprudence that affect public institutions, and will provide guidance to help institutions
thread the First Amendment needle. [2]
DISCUSSION:
I. Holiday Displays Placed by Private Persons on Public School Campuses
As sure as the seasons change, holiday displays pop up on public college campuses, bringing with
them constitutional questions. [3] Indeed, the Second Circuit Court of Appeals wrote that “[n]o
holiday season is complete, at least for the courts, without one or more First Amendment challenges
to public holiday displays.” [4] Resolving these questions often requires consideration of both the
Establishment and Free Exercise Clauses of the First Amendment. [5]
The Establishment Clause, [6] which applies equally to the states, [7] prohibits the government from
taking actions which tend to favor a single religion over others or the idea of religion over no religion.
[8] Questions of establishment are ostensibly analyzed under the test in Lemon v. Kurtzman. “First,
the statute must have a secular legislative purpose; second, its principal or primary effect must be
one that neither advances nor inhibits religion . . .; finally, the statute must not foster ‘an excessive
government entanglement with religion.’” [9] The Free Exercise Clause, [10] which applies equally to
the states, [11] limits the ability of government to prevent individuals from exercising their religious
beliefs or, when analyzed with the Speech Clause, [12] from speaking out about religious issues.
As the Court’s membership has changed over time, use and application of the Lemon test has also
shifted [13] along with the membership. [14] The takeaway point should be that, with Establishment
and Free Exercise Clause questions, we can make educated forecasts as to the constitutionality of
specific situations, but we can never be truly sure, as the legal and factual standards are not firmly
set in stone.
The Endorsement Test: Context Is Key
In the context of holiday displays placed by private persons on government property, the seminal
case is County of Alleghany v. A.C.L.U. [15] There the Court applied a modified version of the
Lemon test referred to as the “Endorsement” test. This test considers (1) whether the government
has a secular purpose for the action, and (2) whether the primary effect of the action endorses
religion. The second prong of the test considers whether a “reasonable observer,” informed by
history and context, would consider the governmental action to endorse religion. [16] The Alleghany
court found that the display of holiday symbols is not constitutional if it has the effect of telling a
reasonable passer-by that the government is endorsing religion generally or a specific religion. [17]
The Court found that a crèche (manger scene) is “capable of communicating a religious message”
[18] and found it unconstitutional where it was at the dominant entrance to a county courthouse,
where all were not free to place their displays, was accompanied by an overtly religious message
(“Glory to God in the Highest!”), and was not accompanied by secular holiday displays. [19] As to a
separate menorah display, the Third Circuit found that it presented a closer constitutional question
since the menorah is a religious item capable of conveying a religious message, but is not
exclusively religious. [20] In reviewing that decision, the Supreme Court found the display
constitutional where a menorah was placed at a different location on city property next to a
Christmas tree and a sign saluting “liberty.” [21] The Court wrote that the “display of a menorah next
to a crèche on government property might prove to be constitutionally invalid” [22] and suggested
that if the nativity scene had been closer in proximity to the Christmas tree, then it could have been
constitutional. [23] Government displays including religious and secular items in recognition of a
winter holiday season or even “Christmas” do not violate the Establishment Clause. [24]
In other words, context is the key, and a reviewing court will make a decision based on the individual
facts of the display. [25] As noted above, the standard measure used by courts is whether a
reasonable person (not an easily offended or hypersensitive person) [26] would feel that the display
reflects a government endorsement of religion. [27] The more it seems that a display on public
property is funded by a private or student organization, is temporary in nature, [28] and does not
support a single religion to the detriment of all others, the easier it becomes to defend the display.
The best advice is for such displays to have a genuine [29] secular purpose, such as the cultural
celebration of the holidays or maintaining civic respect for the religious observance of others, [30]
but no primary or preeminent religious purpose. While displays may be paid for by state funds, [31]
this factor may tip the balance towards unconstitutionality, unlike when private organizations pay for
religious symbols. Overtly religious symbols as stand-alone displays should be avoided, though they
may be placed in displays if not predominant and accompanied by secular holiday displays, or if a
proper disclaimer is included. [32] Disclaimers should be noticeable, and may name the sponsoring
organization and state that the display is not paid for with public funds. [33] They may also assert
that the display is a celebration of the season and not an endorsement of religion or any specific
religion.
While cases will vary based on context, years of litigation over this issue have provided us with a
number of examples to draw from when considering the constitutionality of particular displays either
by government or on government property outside of a limited public forum: [34]
● The crèche displayed on its own is considered a religious symbol, [35] but may be
allowed if it is a small part of a larger seasonal display with secular elements in close
proximity. [36]
● The menorah [37] is considered to be a religious symbol, although not exclusively so, [38]
and may be integrated into a display on government property that has an overall secular
purpose. [39]
● The Ten Commandments are likely a religious symbol, [40] as is a portrait of Jesus. [41]
However, both the Ten Commandments in the context of a historical display [42] and an
overtly religious painting in a museum can withstand a constitutional challenge. [43]
● The star and crescent is likely a religious symbol, although it has not yet been definitively
determined by a court to be so. [44]
● Christmas and holiday trees, [45] reindeer, candy canes, tinsel, assorted holiday-themed
decorations and poinsettia plants are not overtly religious.
● A cross illuminated on its own is also a religious symbol. [46] A stand-alone cross
displayed in a public park, a traditional public forum, [47] during the Christmas season by
a private organization was found to be constitutional. [48]
Again, the key is for a reasonable and objective passer-by with knowledge of the history and context
of the display not to think that the state is attempting to establish religion by means of the display.
[49]
Time, Place, and Manner Restrictions
It is also important to note that despite what some students and community members may believe,
there is no blanket First Amendment right of private citizens to use public college or university
property (apart from classic “public fora” such as public streets and sidewalks) for religious, political,
or other expressive displays. Indeed, courts have noted that “[w]hile displays of religious and political
symbols are unquestionably forms of protected speech under the First Amendment . . . it is wellsettled that this fundamental guarantee does not translate into unlimited access to government
property for expressive purposes.” [50]
That said, if an institution has opened certain areas – such as quads or squares – to private
expressive purposes (creating what are known as “limited public fora”), the institution cannot treat
religious expression differently than other types of expression. [51]
What does this mean as a practical matter? Institutions may draw reasonable time, place and
manner restrictions on holiday displays. Content-based restrictions, however, should be treated with
caution, and viewpoint-based restrictions must be avoided. [52] In other words, if a display about a
social or political issue or a political candidate was allowed in a certain space, it could be an
unconstitutional content-based determination to forbid a religious display in the same place, even if
the overtly religious display concerned a religious holiday and had no secular component. Moreover,
it could be unconstitutional viewpoint discrimination for a public entity to allow private secular
expression while censoring or denying access to the forum for private religious expression. [53]
At the same time, if the campus does not ordinarily allow displays of a certain type or in a certain
area, it could be an equal protection violation to make a content-based determination that a religious
display is allowed when no other display would be allowed. [54] To resolve this, institutions may
choose to allow holiday or other religious displays in the same location and manner that other
displays of speech are allowed and use the same process to review and issue permits that is used
for other types of speech. An example of an acceptable restriction is a time, place and manner
restriction stating that all displays may be placed in certain areas but not others, must be reasonable
in size, must not be a tripping hazard or composed of flammable materials, must be for a limited
duration, or must have a permit for placement.
Establishment Clause Chart
As the cases and discussion above demonstrate, there is no single right answer as to which holiday
displays are constitutionally permissible in a limited public forum. Instead, public colleges and
universities must balance the interests protected by the First Amendment. To that end, the chart
below lists factors that courts have cited in determining whether a holiday display is constitutional.
More likely to be allowed under the First
Amendment
Less likely to be allowed under the First
Amendment
On private land
On government property
Display purchased with private or student
organization funds
Display purchased with government funds
Maintenance or electricity (if applicable)
provided by private donors
Maintenance or electricity (if applicable)
provided by or paid for with government
funds
Part or all of the display is created,
sponsored, and/or maintained by students or
faculty who seek to exercise their right to
religious speech
The display is created, sponsored and/or
maintained by the public institution to
advance a religious purpose
Secular or partially secular holiday symbols
such as reindeer, a Christmas tree, wreaths,
candy canes, a menorah, candles, lights,
streamers, toys, tinsel or other neutral
holiday displays, even when presented
alongside religious symbols
A stand-alone crèche, cross, menorah, star
and crescent, or picture of Jesus or other
religious figures or a display with such
religious elements dominating in a group
setting
Signs invoking general happy holiday or
seasonal phrases
Signs invoking solely religious-based
messages
Signs stating that the display is donated,
funded or maintained by a private or student
group or disclaiming any government
sponsorship or endorsement
No sign denoting how the display is funded,
maintained or sponsored and no government
endorsement disclaimer
II. Religious Displays in Faculty and Staff Offices
Holiday season or not, religious displays in faculty and staff offices on public school campuses can
raise complicated constitutional issues requiring analysis of the First Amendment’s Establishment
and Free Exercise Clauses, academic freedom, and speech rights under what is known as the
Pickering line of cases. [55]
Under Pickering, public employee speech is subject to a balancing “between the interests of the
[employee], as a citizen, in commenting upon matters of public concern and the interest of the State,
as an employer, in promoting the efficiency of the public services it performs through its employees.”
[56] Because public employees, like all other citizens, enjoy the First Amendment right to free
speech on matters of public concern, [57] employers must tread carefully. They may only limit that
right if the employee’s speech or display causes a disruption or has the potential to cause disruption,
sufficient to outweigh the value of the speech. [58] The Court has stressed the value of the public’s
“interest in having free and unhindered debate on matters of public importance.” [59] However,
where a government employee’s private workplace display is positioned such that members of the
public with full knowledge of the context would nevertheless reasonably perceive the display to
violate the Endorsement test, the government employer has an obligation to require the display to be
removed or altered so as to not violate the Establishment Clause. [60]
It is important to note that actions against employees for religious displays might also implicate Title
VII of the Civil Rights Act. [61] Title VII prohibits employment discrimination based on religion,
including all aspects of religious observance and practice, as well as belief, unless an employer
demonstrates that it is unable to reasonably accommodate an employee’s religious observance or
practice without undue hardship to the employer’s business. [62] Instructions and prohibitions that
disproportionately impact the ability of religious employees to place religious holiday displays or
religious icons where secular holiday displays (or other personal displays or decorations) are
routinely permitted may be considered evidence of a religiously-hostile workplace, disparate
treatment or failure to reasonably accommodate. [63] The level of hardship that can be found will be
a case by case determination and depend on the individual workplace and duties of the employees
in question. Evidence of employee complaints, client complaints, religious polarization or some other
disruption in the workplace is typically required for employers to refuse to accommodate employee
religious expression. [64] When the employee’s message would be reasonably construed as the
employer’s message, however, the employee’s Title VII rights are trumped by the private employer’s
First Amendment free speech rights and trumped by the government employer’s Establishment
Clause responsibilities. [65]
In light of the above considerations, public college and university employers should articulate clear,
simple standards or policies that are viewpoint-neutral and are fairly enforced with respect to holiday
or religious displays in the workplace. The policy should take into consideration the difference
between public-facing work spaces, such as reception areas, where religious or holiday displays
may be seen as an endorsement by the institution, versus private staff or faculty offices, where
displays are more likely to be understood as personal expression. Policies also should focus on
factors that have the potential to disrupt the workplace, like the size or volume of material displayed,
as opposed to the content or the viewpoint of those materials. The University of Iowa’s Religious
Guidelines, found in the Resources section below, provide a good example of such a policy, and
highlight the University’s respect for the right of its employees to express their religious beliefs in a
manner that does not suggest institutional support.
As with any policy, institutions should enforce these policies in a fair, neutral manner that ensures
complaints are not being unfairly lodged against persons based solely on their viewpoint or religion.
Complaints should be evaluated on the individual facts of each situation, to determine if the facts
warrant asking the faculty or staff member to alter or remove the display.
CONCLUSION:
In parsing these First Amendment questions on a college campus, context is key. Institutions should
provide flexible guidelines to policy makers to help them thread the First Amendment needle, while
preserving the constitutionality of the actions of our faculty, staff and students.
FOOTNOTES:
FN1. Board of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990) (emphases in
original).
FN2. We cannot address all possible current issues in religious speech on college campuses and
are not addressing issues dealt with comprehensively in other NACUA publications and
presentations, such as offensive speech on campus by religious speakers and public college
student fee funding for religious groups that do not admit all comers. Rather, we chose a few
discrete issues that had not been treated as thoroughly in recent publications and presentations.
The footnotes catalog more detailed cases and commentary for further reading by NACUA
members.
FN3. For a somewhat humorous, and yet informative, take on the issue, see Dahlia Lithwick, Which
Religious Holiday Displays are Unconstitutional?, SLATE ONLINE, Dec. 21, 2001.
FN4. Skoros v. City of New York, 437 F.3d 1, 3 (2d Cir. 2006), cert. denied, 549 U.S. 1205
(2007).
FN5. This NACUANOTE assumes that it is not the public institution itself trying to speak through a
religious monument or symbol. Such a circumstance, referred to as “Government Speech,” is itself
the subject of a line of Supreme Court cases not discussed in this Note. See Pleasant Grove City v.
Summum, 555 U.S. 460 (2008); Salazar v. Buono, 559 U.S. ___, 130 S.Ct. 1803 (2010). See also
RonNell Anderson Jones, “Pick Your Poison: Private Speech, Government Speech, and the Special
Problem of Religious Displays,” 2010 B.Y.U. L. Rev. 2045 (2010); Mary Jean Dolan, “Government
Identity Speech and Religion: Establishment Clause Limits After Summum,” 19 Wm. & Mary Bill Rts.
J. 1 (2010).
FN6. “Congress shall make no law respecting an establishment of religion . . . ” U.S. Const. amend.
I, cl. 1.
FN7. See Wallace v. Jaffree, 472 U.S. 38, 48-49 (1985); Everson v. Bd. of Educ. of Ewing TP, 330
U.S. 1, 15-16 (1947).
FN8. See Wallace, supra, at 52-54; U.S. Const. amend. I, cl. 1.
FN9. Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971) (citations omitted); see also Skoros v. City
of New York, supra at 17.
FN10. “Congress shall make no law…prohibiting the free exercise [of religion].” U.S. Const. amend.
I, cl. 2.
FN11. See Cantwell v. State of Connecticut, 310 U.S. 296, 303 (1940).
FN12. “Congress shall make no law…abridging the freedom of speech.” U.S. Const. amend. I, cl. 3.
FN13. In fact, Justice Antonin Scalia particularly dislikes the Lemon Test, writing in a primary
education freedom of religion case:
As to the Court’s invocation of the Lemon test: Like some ghoul in a late-night horror movie
that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and
buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the
little children and school attorneys of Center Moriches Union Free School District. Its most
recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v.
Weisman . . . conspicuously avoided using the supposed ‘test’ but also declined the
invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting
Justices have, in their own opinions, personally driven pencils through the creature’s heart
(the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so.
Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J.,
concurring).
FN14. In their most recent holding on the issue (handed down prior to Chief Justice Roberts and
Justice Alito ascending to the bench), the Court, in a confusing amalgamation of opinions, did make
the point that while the government may not explicitly endorse a specific religion, “the Establishment
Clause does not compel the government to purge from the public sphere all that in any way
partakes of the religious.” Van Orden v. Perry, 545 U.S. 677, 699 (2005) (Breyer, J., concurring).
The majority opinion called the Lemon test a helpful signpost, though not binding. See id. at 685. In
fact, in two cases handed down on the same day in 2005, the Court went in opposite directions with
respect to the Lemon test. In McCreary County v. A.C.L.U., the Court applied the Lemon test to the
posting of the Ten Commandments in county courthouses, and found it to be a violation of the
Establishment Clause. McCreary Cnty. v. A.C.L.U., 545 U.S. 844, 881 (2005). Yet, in Van Orden v.
Perry, the Court declined to apply the Lemon test, and upheld a display of the Ten Commandments
at the Texas state capitol building. Van Orden v. Perry, supra at 691–92. Each of these cases
resulted in a 5-4 decision, with Justice Breyer serving as the swing vote in each. Justice Breyer
attributed his differing conclusions to factual discrepancies between the two situations: in McCreary,
he saw the courthouse display as unconstitutional, yet he voted with the plurality in Van Orden in
holding that the state capitol display was constitutionally permissible. This was, according to Justice
Breyer, primarily because the display in Van Orden had a dual secular and religious nature, as it
was donated by a secular organization, was not in an overtly religious setting, and was included
amongst other more secular monuments. Id. at 701-703. While not explicitly overturning Lemon, the
Court in Van Orden revealed its dissatisfaction with the test, and simply chose not to apply it,
“instead [looking to] . . . the nature of the monument.” Id. at 686. The divergence of the analyses in
these two similar cases demonstrates how difficult it can be for campus counsel to navigate
Establishment Clause jurisprudence.
FN15. 492 U.S. 573 (1989). An earlier important case on the subject was Lynch v. Donnelly, 465
U.S. 668 (1984), involving a display containing a crèche (sometimes called a nativity or manger
scene). Because the crèche, a religious element, was part of a larger government Christmas
display with secular elements such as Christmas trees, Santa Claus, reindeer and candy canes, the
display was found to be a constitutional commemoration of a national holiday.
FN16. See County of Alleghany v. A.C.L.U., supra at 593-94.
FN17. See id. at 597.
FN18. Id.
FN19. See id. at 597-600 & fn.50; see alsoDoe v. Clawson, 915 F.2d 244 (6th Cir. 1990); A.C.L.U.
v. City of Birmingham, 791 F.2d. 1561, 1566-1567 (6th Cir. 1986), cert. denied 479 U.S. 939 (1986);
Doe v. Wilson City School System, 564 F.Supp.2d 766 (M.D. Tenn. 2008); Jocham v. Tuscola
Cnty., 239 F.Supp.2d 714 (E.D. Mich. 2003); But see Satawa v. Macomb Cnty. Road
Com’n, 689 F.3d 506 (6th Cir. 2012) (allowing a privately established and funded crèche on its own
in a road median).
FN20. See County of Alleghany, supra at 613-614. Such a determination would come as a surprise
to those with experience lighting menorahs, as members of the Jewish faith consider menorahs to
be a religious symbol and instrument of faith used to recall a religious miracle several thousand
years ago. The Court was not clear as to what the separate secular purpose of the menorah would
be. Perhaps, like the Christmas tree, which also began as a religious symbol, id. at 616-17, the
Court believes that the menorah has become a cultural symbol of a holiday period that can serve
both a secular decorative purpose and religious purpose.
FN21. See id. at 614.
FN22. Id. at 615, fn 61.
FN23. Id. at 598-99 & fn 48.
FN24. See County of Alleghany, supra, at 616.
FN25. See Elewski v. City of Syracuse, 123 F.3d 51, 53-54 (2d Cir. 1997), cert. denied 523 U.S.
1004 (1998).
FN26. See Books v. Elkhart Cty., 401 F.3d. 857, 867 (7th Cir. 2005); A.C.L.U. v. Mercer Cnty. KY,
432 F.3d 624, 639 (6th Cir. 2005), rehearing en banc denied 446 F3d. 651 (6th Cir. 2006).
FN27. See Lambeth v. Bd. of Comm. of Davidson Cty., 407 F.3d. 266 (4th Cir. 2005); Modrovich v.
Allegheny Cty., 385 F.3d. 397 (3d Cir. 2004); Elewski v. City of Syracuse, supra at 53-54; Chambers
v. City of Frederick, 373 F.Supp.2d 567, 571-572 (D.Md. 2005). The objective passer-by in the
context of a university holiday display would likely be the average college student. We need not
consider the possibility or likelihood of different classes or groups of reasonable observers and the
impact on each group individually. See Skoros v. City of New York, supra at 24. Unlike many
primary education religious display cases, in which a concern about indoctrination of younger
students through peer pressure is keen, college students generally have more maturity to view a
secular or somewhat religious holiday display without feeling such pressure.
FN28. See Congregation Lubavitch v. City of Cincinnati, 997 F.2d. 1160 (6th Cir. 1993); Joki v. Bd.
of Educ. of Schuylerville Cent. School Dist., 745 F.Supp. 823 (N.D.N.Y. 1990).
FN29. The state purpose is entitled to deference provided it is genuine and not a sham for
supporting religion. See McCreary Cnty. v. A.C.L.U., supra at 864; see also Skoros v. City of New
York, supra at 19-20; Chambers v. City of Frederick, supra at 571-572.
FN30. See County of Allegheny v. A.C.L.U., supra at 635-636; Skoros v. City of New York, supra at
19; Spohn v. West, 2000 US Dist. LEXIS 14290,*8, 2000 WL 1459981, *3 (S.D.N.Y. 2000).
FN31. See Lynch v. Donnelly, supra at 671, 686-687; A.C.L.U. v Schundler, 168 F.3d 92 (3d Cir.
1999); A.C.L.U. v. City of Florissant, 186 F.3d. 1095 (8th Cir.1999); but see A.C.L.U. v. City of
Birmingham, supra at 1562; Separation of Church and State Comm. v. City of Eugene, 93 F.3d. 617
(9th Cir. 1996).
FN32. See McCreary v. Stone, 739 F.2d 716, 727-728 (2d Cir. 1984), aff’d without opinion, 471 U.S.
83 (1985); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 87 (1980); Doe v. Small, 964 F.2d
611, 621 (7th Cir. 1992).
FN33. See e.g., Flamer v. City of White Plains, 841 F.Supp. 1365 (S.D.N.Y. 1993).
FN34. The standards laid out in this paper are most applicable to limited public fora. Forum
analysis is often thought of as a spectrum, ranging from nonpublic fora, where government has
significant power to regulate speech, through limited (sometimes called quasi or designated) public
fora, where the government has some powers to regulate speech, to public fora (sometimes called
traditional public fora) where governmental power to regulate speech is significantly circumscribed.
Many institutions do not have true public fora, and their predominant limited public fora and
nonpublic fora are what is considered here. Some institutions, however, do maintain true historical
public fora on their campuses, and the rules for holiday displays there are often completely
different. Government must treat private religious speech in a public forum the same as it treats any
speech in that forum. It cannot require disclaimers to prohibit misperceptions about official
endorsement of the private message unless all messages in the forum must disclaim public
sponsorship. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 769 (1995)
(when private religious display is in a public forum available to all on the same terms, such private
speech cannot be associated with government in a way to violate the Establishment Clause).
Accordingly, private speech in an open forum does not need to satisfy the Lemon test, does not
need any disclaimer, and does not need a balance of religious and secular elements. The
difference between the Christmas cross case of Capitol Square and the Christmas crèche case of
Allegheny County is that the cross was in a public forum on government property while the crèche
was in a non-public forum on government property where its presence demonstrated that
government effectively endorsed private religious expression and improperly favored it with access
to the seat of government. Capitol Square, supra at 764-767. Accord, Americans United for
Separation of Church & State v. City of Grand Rapids, 980 F.2d 1538, 1554 (6th Cir. 1992) (a
government-permitted, private stand-alone menorah in public park, a traditional public forum, cannot
violate Establishment Clause; disclaimer of city endorsement not necessarily required). The Court is
not concerned with misperceptions about government endorsement of private speech that occurs in
public fora because the reasonable observer is deemed to know that expression of any type in an
open forum does not confer any imprimatur of state approval. Capitol Square, supra at 765-766.
FN35. See County of Alleghany v. A.C.L.U., supra at 598-602.
FN36. See Lynch v. Donnelly, supra at 671; Elewski v. City of Syracuse, supra at 54.
FN37. See County of Alleghany v. A.C.L.U., supra at 613; Skoros v. City of New York, supra at 20.
FN38. See County of Alleghany v. A.C.L.U., supra at 613.
FN39. See Skoros v. City of New York, supra at 22.
FN40. See Chambers v. City of Frederick, 373 F.Supp.2d 567, 571-572 (D. Md. 2005).
FN41. See Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir. 1994), cert. denied,
514 U.S. 1095 (1995).
FN42. See A.C.L.U. v. Mercer Cnty., supra at 637-638; Books v. Elkhart Cnty., supra at 868; Books
v. City of Elkhart, 235 F.3d 292, 303-304 (7th Cir. 2000), cert. denied, 532 U.S. 1058 (2001).
FN43. See Lynch v. Donnelly, supra at 692.
FN44. See Skoros v. City of New York, supra at 20; Mehdi v. United States Postal Service, 988
F.Supp. 721, 723 (S.D.N.Y. 1997).
FN45. See County of Alleghany v. A.C.L.U., supra at 616-617.
FN46. See American Atheists Inc. v. Duncan, 616 F.3d 1145 (10th Cir. 2010), superseded on other
grounds 637 F.3d 1095 (10th Cir. 2010); Separation of Church and State Committee v. City of
Eugene of Lane Cnty., State of Oregon, 93 F.3d 617 (9th Cir. 1996), cert. denied Utah Highway
Patrol Assn. v. American Atheists Inc.,
U.S. , 132 S.Ct. 12 (2011); Fox v. Los Angeles, 22
Cal.3d 792, 794 (1978). See also Carpenter v. City and Cnty. of San Francisco, 93 F.3d 627 (9th
Cir.1996), cert. denied, 520 U.S. 1118 (1997) (decided under similar provision of California State
Constitution). But see Eugene Sand & Gravel, Inc. v. City of Eugene, 276 Or. 1007 (1976), cert.
denied, 434 U.S. 876 (1977); Paul v. Dade Cnty., 202 So.2d 833 (Dist. Ct. of App. of Fl., 3rd Dist.
1967), cert. denied 207 So.2d. 690 (1967), 390 U.S. 1041 (1968).
FN47. As discussed in FN 32, supra, not all public college and university campuses will have space
that is designated a true public forum. In that case, the analysis of limited public fora is more
appropriate.
FN48. See Capitol Square, supra at 762-769. This case involved a park display review board’s
attempt to bar a cross displayed by the KKK during the Christmas season due to their particular
religious and political views. The Court sided with the KKK and allowed the display.
FN49. See Skoros v. City of New York, supra at 22; FN 27, supra.
FN50. Flamer, supra at 1372-1373.
FN51. It should also be noted that “by creating a forum the University does not thereby endorse or
promote any of the particular ideas aired there.” Widmar v. Vincent, 454 U.S. 263, 272 n. 10 (1981).
FN52. See also Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427
(6th Cir. 2004) (holding unconstitutional a city ordinance that prohibited private displays in public
square during holiday season to prevent expression of unpopular content).
FN53. Lamb’s Chapel v. Center Moriches Union Free School Dist., supra at 390-395 (1993);
Grossbaum v. Indianapolis-Marion Cnty. Building Authority, 63 F.3d 581 (7th Cir. 1995) (denial of
private religious display where others were permitted is unconstitutional viewpoint discrimination
even in non-public forum).
FN54. See, e.g., American Jewish Congress v. City of Beverly Hills, 90 F.3d. 379 (9th Cir. 1996).
FN55. See e.g. Pickering v. Board of Education, 391 U.S. 563 (1968).
FN56. Id. at 568.
FN57. See generally Garcetti v. Ceballos, 547 U.S. 10 (2006). The Garcetti line of cases is still in
its infancy, and future cases may develop more understanding of the applicability of these freedoms
to statements made in the workplace, the impact on faculty, and what rights colleges and
universities have to regulate speech, especially vis-à-vis the Pickering line. In a recent high school
case on point to this question, the Ninth Circuit found that a high school teacher who posted two
overtly religious banners in his classroom was speaking as an employee, making his speech
government speech and eligible to be removed by the School District. See Johnson v. Poway
Unified Sch. Dist., 658 F.3d 954 (9th Cir. 2011), cert. denied
U.S.
, 132 S.Ct. 1807 (2012).
For an in-depth discussion of this case, see Eric Jeppsen, “Uneven ‘Neutrality’: Dual Standards and
the Establishment Clause in Johnson v. Poway,” 2012 B.Y.U. L.REV. 543 (2012).
FN58. See id.; see also Rankin v. McPherson, 483 U.S. 378, 384 (1987); Jeffries v. Harleston, 52
F.3d 9, 13 (2d Cir. 1995), cert. denied 516 U.S. 862 (1995).
FN59. Pickering v. Board of Education, supra at 573.
FN60. This could occur at a reception desk or service counter work area where the offending
display appears to be government speech.
FN61. 42 U.S.C §2000e.
FN62. 42 U.S.C §2000e(j).
FN63. EEOC Compliance Manual, Religious Discrimination, §12 – IV—C—6 at p.77-78 (EEOC July
22, 2008).
FN64. Id.; Anderson v. U.S.F. Logistics, Inc., 274 F.3d 470, 476 (7th Cir. 2001) (“Have a blessed
day.”); Banks v. Serv. Am. Corp., 952 F. Supp. 703 (D. Kan. 1996) (“God bless you” and “Praise the
Lord.”).
FN65. EEOC Compliance Manual, supra at 79-80 & fn. 202.
FN66. The authors are grateful to the thoughtful and insightful comments of two NACUA member
peer reviewers, NACUANotes Editorial Board reviewers, as well as the analysis and comments of
Joshua Dermott and Karl Brevitz.
AUTHORS: [66]
Joseph Storch, Associate Counsel, State University of New York Office of General Counsel
Brendan Venter, Third-Year Student, Albany Law School
RESOURCES:
NACUA Resources

Lynn A. Kappelman & Leslie Van Houten, New Developments and Hot Topics in Religious
Discrimination (NACUA March 2009 CLE Workshop)
Institutional Policies


Cornell University, Guidelines for Holiday Displays (2010)
University of Iowa, Religious Guidelines (2004)
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