Federal appeals panel rejects challenge to law school bulletin boards

Wednesday, February 16, 2000

The University of Oklahoma Law School did not violate the First Amendment by reserving bulletin boards for individual student groups, including a Christian group, a federal appeals court has ruled.

Norman, Okla., attorney Jack Pryor sued Andrew Coats, dean of the University of Oklahoma University College of Law, claiming that the policy of restricting law school bulletin board use to registered student groups violated the First Amendment.

Pryor, who now practices family law, sued in January 1999 when he was a third-year law student.

In his complaint, Pryor alleged that the policy violated the First Amendment rights of free speech, free association and freedom of religion. He contended that allowing only student groups to use the bulletin boards squelched the free-speech and free-association rights of students who were not members of the registered groups.

He also argued that allowing the Christian Legal Society its own bulletin board violated the establishment clause of the First Amendment, which requires separation of church and state.

A federal judge dismissed the claim, finding no First Amendment violations. On appeal, a three-judge panel of the 10th U.S. Circuit Court of Appeals agreed in its Feb. 9 opinion in Pryor v. Coats.

Pryor argued that the appeals court should apply the highest form of judicial review — called strict scrutiny — to the law school policy because it restricts speech in a public forum, e.g., an area in which government officials allow freedom of speech.

However, the 10th Circuit determined that the claim should be analyzed under a “reasonableness test” because the school had created only a “limited public forum.”

“We conclude that the law school’s restrictions regarding bulletin boards for registered student groups created a limited public forum subject to the more deferential reasonableness standard,” the court wrote.

“Here it is clear that the university law school did not intend to create a designated public forum when it made bulletin boards available only to registered student groups,” the court wrote.

Pryor also argued that the policy was constitutionally flawed because it gave the law school dean “unbridled discretion” to determine which groups could have access to a bulletin boards. The appeals court rejected the argument, writing, “It is clear that the criteria applied by the law school when sanctioning student groups for bulletin board access are reasonable, objective, and without any overt or covert hint of discriminatory intent.”

The 10th Circuit also rejected Pryor’s establishment-clause claim. Pryor argued that allowing the Christian Legal Society to have a bulletin board showed the law school, a public institution, endorsed religion and amounted to an excessive entanglement of church and state.

The appeals court applied tests from the U.S. Supreme Court’s 1971 decision in Lemon v. Kurtzman and its 1984 decision in Lynch v. Donnelly. Under the Lemon test, government action must (a) have a secular purpose, (b) neither advance nor inhibit religion, or (c) not foster an excessive entanglement with religion.

Under the “endorsement” test outlined in the Lynch decision, the government impermissibly endorses religion if its conduct has either the purpose or effect of conveying a message that a particular religious belief is preferred over another religion or nonreligion.

The 10th Circuit found that the law school bulletin board policy did not violate either test. “Having a bulletin board containing religious messages in a place where plaintiff had to pass it in order to move about the law school falls far short of coercing him into supporting and participating in religion,” the court wrote.

“The Constitution does not require a complete absence of religious expression in public institutions,” the court added.

“The appeals court seemed to disregard the central issue which is that a public official may not have unbridled discretion to determine what speech is appropriate,” Pryor said. “The effect of the school policy is that if you have an opinion that less than 10 students subscribe to, then you have no right to express those opinions.”

Pryor said that he was “not out to silence Christianity.”

“I am simply a civil libertarian and when I saw this bulletin board for the Christian Legal Society, I was concerned,” he said.

“How can a public official create a public space where only Christians can speak?” Pryor said. “It seems intuitively obvious to me that this is unconstitutional but apparently I am the only one that thinks this way.”

Pryor said he would “probably” seek full panel review by the 10th Circuit.

Adam Cohen, an attorney with the Office of Legal Counsel for the university, said it was office policy not to comment on pending or completed litigation.