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Court: Religion OK for Public School Fundraiser

With the school year opening in much of the nation, educators will soon be facing two of their traditional challenges: how to raise funds for school operations and how to avoid legal challenges.

A recent federal district court decision may actually help schools with both of those issues, even though the court ruled for a group of parents and against a school district on a very particular issue involving free-speech and establishment-of-religion questions in the realm of school fundraisers.

A federal district judge in Houston has ruled that a Texas school district engaged in viewpoint discrimination in violation of the First Amendment's free speech clause when it removed an explicit religious message as one option for greeting cards selected by parents as part of a school fundraiser.

U.S. District Judge Lee H. Rosenthal held that the district would not violate the First Amendment's prohibition of any government establishment of religion by allowing parents to have this choice of message on the holiday cards sold through a third-party vendor: "And she shall bring forth a son, and thou shalt call his name Jesus; for He shall save his people from their sins. - Matthew 1:21."

Pattison Elementary School in Katy, Texas, was selling the holiday cards as a fundraiser for art supplies. The program allowed parents to choose artwork created by their own child as well as one of several stock messages for inside the card. Among the messages the district did not seek to disallow were "Wishing you a Merry Christmas and a Happy New Year," "Peace on Earth/Let it begin in our hearts," and messages recognizing Hanukkah and Kwanzaa.

In a 2009 ruling in the case, the district court upheld the district's restrictions on when and where the fundraiser could take place, and it held at that time that the greeting-card fundraiser did not violate the establishment clause of the First Amendment.

On reconsideration, however, the court held in its July 30 opinion in Pounds v. Katy Independent School District that the free-speech rights of parents were infringed by the school's decision to black out the explicit religious message as a selection and that the district was not required by the establishment clause to take that action.

"The fact that the school sent the order form to the parents does not make the contents of the form pure government speech," Judge Rosenthal said. "It was evident that the form was prepared by a third party and that it was the third party that created the twelve preset messages for the parents to choose. ... The form created a forum for, or facilitated, the creation of the cards, which was clearly private expression."

Noting that the case has been active since 2006, Judge Rosenthal lamented the legal minefield that school officials must navigate when dealing with anything touching on religion in public education.

"As this case demonstrates, decisions in such seemingly innocuous and benign activities as elementary school parties and fundraisers for elementary school art classes too often lead to protracted litigation," the judge said.

A hat tip for this case goes to the National School Boards Association's Legal Clips, which recently added a frequently updated Web site to its other outlets, which include an weekly e-mail newsletter.

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