A well-known legal team that specializes in civil and religious rights in America is advising Arkansas State to drop its efforts to unconstitutionally suppress student expression after officials ordered football team members to modify a small cross they had added to their helmets in memory of two lost teammates.
"If the university remains recalcitrant in its violation of the players rights, Liberty Counsel stands ready to advocate in federal court on behalf of individual team members … to vindicate their constitutional rights," a letter from Richard L. Mast of Liberty Counsel told the school Thursday.
The issue had been raised by a lawyer from Arkansas who watched a football game and objected to the small vinyl crosses. They were placed there by players, with permission from their athletic director, to honor football player Markel Owens and equipment manager Barry Weyer, who recently died.
The crosses held the initials of the deceased, Mast wrote in his letter to ASU officials.
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But Jonesboro, Arkansas, attorney Louis Nisenbaum "sent an email to University Counsel Lucinda McDaniel on the afternoon of Sept. 6, 2014, expressing his disapproval of this private student expression of faith, claiming that it violated the Establishment Clause."
"He demanded the university 'advise whether [it] agreed' with the students' expression, and further called for the university to suppress it by forcing the players to remove the crosses," LC reported.
"Instead of informing Mr. Nisenbaum that it was inappropriate for the university to take a position on private student expression, and that it was likewise inappropriate for the university to order private student expression to be suppressed, administration sent an email to [Athletic Director Terry] Mohajir recommending that the bottom of the cross be cut off so that the symbol was a 'plus sign,' because 'persons viewing the helmets will, and have, seen the symbol as a cross and interpreted that symbol as an endorsement of the Christian religion.'"
Mat Staver, chairman of Liberty Counsel, said that after "fighting for students' rights for many years, nothing should surprise me, but I am appalled that someone would harass these young people as they mourn the deaths of their teammates."
“I am saddened that the university did not stand up for their rights. These young people have done nothing wrong! They have as much right to communicate their ideas--or in this case, their grief--as the attorney who somehow feels offended by the small vinyl crosses they are wearing on their helmets.”
The letter to the school notes that the U.S. Supreme Court has affirmed the rights of students to express themselves.
"In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in schools as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the state must respect, just as they themselves must respect their obligations to the state," the letter said.
"In our system, students may not be regarded as closed-circuit recipients of only that which the state chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views (Tinker v. Des Moines Independent Community School District).
"The university should immediately rescind the unconstitutional directive suppressing private student expression in the form of crosses on individual players' helmets,” Liberty Counsel said in its letter. "If the university abides by the Constitution, and is later called into question, Liberty Counsel would be pleased to present a united defense of both the university for respecting individual rights, and the players' individual First Amendment rights.”
A WND call to the school after hours did not reach anyone who could comment.
A spokeswoman for the Freedom From Religion Foundation, Rebecca Markert, told the Washington Post insisted it's unconstitutional to put a decal on "public school property."
Liberty Counsel's letter differed.
First, the attorneys said, college students and faculty likely can tell the difference between private speech, which the government must respect, and government speech.
"Second, it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," the letter said, citing the U.S. Supreme Court's Tinker decision.
Further, the letter said, a person's speech or expression cannot be prohibited just because someone else objects.
"Finally … regarding actual government speech, and assertions about what someone 'might perceive:' courts simply 'do not ask whether there is any person who could find an endorsement of religion, whether some people may be offended by the display, or whether some reasonable person might think [the state] endorses religion.'"
The letter continued: "The endorsement inquiry is not about the perceptions of particular individuals or saving isolated non-adherents from the discomfort of viewing symbols of faith to which they do not subscribe. … It is instead an objective inquiry."