Refusal to post Ten Commandments on school ballfield is justified, court rules

Wednesday, November 10, 1999

For the second time this year a court has supported a California public school district's decision not to post an advertiser's religious message on the fence of a high school baseball field.

On Nov. 8, a three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously ruled that Downey Unified School District in Los Angeles did not violate the fundamental rights of Edward DiLoreto, an area businessman, when it refused to post his advertisement on the Downey High School's outfield fence. DiLoreto's sign included the statement “Pause and Meditate on These Principles to Live By!” and the Ten Commandments.

District officials refused DiLoreto's sign saying it would violate the establishment clause of the First Amendment if the school posted it and it could cause disruption and controversy. DiLoreto, represented by a conservative Los Angeles-based group called the Individual Rights Foundation, sued the school district in federal and state courts alleging his speech rights under the federal and state constitutions had been subverted by the refusal. The Individual Rights Foundation, founded in 1993, says its mission is to “establish race and gender neutral standards in public life.”

On Aug. 19, a state court had also ruled the school district did not violate the state constitution and dismissed DiLoreto's lawsuit.

The 9th Circuit, led by Judge Susan Y. Illston, ruled that the Downey ballfield was not a public forum open to expression and that school officials were justified in keeping DiLoreto's Christian message out of the park. In its ruling, the 9th Circuit affirmed a lower district judge's 1998 ruling that the school district would have violated the establishment clause by posting the sign.

Illston wrote that the school district had sold advertising space on the outfield fence to raise funds for sports programs, not to create a forum for community expression.

“Government policies and practices that historically have allowed commercial advertising, but have excluded political and religious expression, indicate an intent not to designate a public forum for all expressive activity, but to reserve it for commercial speech,” Illston wrote in DiLoreto v. Downey Unified School District. “In this case, the District did not intend to designate the baseball field fence as a public forum for expressive activity. To raise funds, the District solicited business advertisements, thereby limiting the content of the forum through its solicitation practices. District officials excluded certain subjects from the advertising forum as sensitive or too controversial for the forum's high school context.”

Illston also concluded that the school district did not unconstitutionally discriminate against a viewpoint by refusing to post DiLoreto's Christian messages. In doing so, Illston wrote that the court did not accept an argument the Becket Fund for Religious Liberty, a nonprofit D.C.-based group, proffered in a friend-of-the-court brief that “excluding religion as a subject or category from a forum always constitutes viewpoint discrimination.”

“The district's concerns regarding disruption and potential controversy are legitimate reasons for restricting the content of the ads, given the purpose of the forum and the surrounding circumstances of the public secondary school,” Illston wrote.

Patrick Manshardt, general counsel for the Individual Rights Foundation, was not available for comment.

Eric Treene, litigation director for the Becket Fund, said this was an instance where school officials, with valid concerns about the establishment clause, overreacted and suppressed private religious speech.

“We respectfully disagree with the court that the school district had a policy closing the forum to all speech, except commercial,” Treene said. “But that is not what happened here.”

Treene noted that the school district had accepted ads from a local Freemason group and said the appeals court did not carefully consider evidence suggesting the district had acted with hostility toward DiLoreto's Christian messages.

Illston, however, wrote that “the fact that another high school within the district accepted ads for ESP Psychic Readings and the local Freemason organization does not indicate that the Downey High School fence was a designated public forum open to ads promoting personal religious beliefs.”