Legal Commentary

ACLU of Virginia Defends Students? Right to Post Ten Commandments on Their Lockers

By Eugene Volokh

Here?s the Virginia ACLU?s letter to the principal, as posted by WSLS-TV:

We were concerned to hear that the administration of Floyd County High School had removed copies of the Ten Commandments from students? lockers. If the school is treating students? religious speech less favorably than other forms of speech, it may violate the First Amendment to the United States Constitution.

Based on news reports, it is our understanding that the ?while approval is needed for flyers and announcements, ... notes such as happy birthday and well wishes for sports games do not need approval.? It is not clear whether this distinction applies only to material posted by students on other students? lockers, or if it also applies to material posted by students to their own lockers, as the Ten Commandments appear to have been. If the latter, it is difficult to imagine a legitimate basis for such a distinction.

It is important to understand that allowing students to express their religious views on their lockers is not the same as the school itself posting the Ten Commandments or other religious documents. As the Supreme Court has often explained, ?there is a crucial difference between governmentspeech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.? Bd. of Educ. of Westside Comm. Sch. v. Mergens, 496 U.S. 226 (1990). When the school posts the Ten Commandments on the wall, it is violating the First Amendment by promoting religion. When the school allows students to post the Ten Commandments on their lockers, it is upholding students? First Amendment rights (as long as religious speech is not treated more favorably than other types of speech, such as political speech).

We therefore urge you to allow students to post their views on any topic ? including religion ? on their own lockers.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Full post as published by The Volokh Conspiracy on February 26, 2011 (boomark / email).