Sedalia, Missouri: what's next, banning science fair projects for being too scientific?

Recently, the assistant superintendent of the Sedalia, Missouri school district banned the high school's marching band from having, wearing or selling this perfectly innocuous t-shirt that shows the classic "ape to man" illustration seen in countless school biology textbooks.

The asst. supt.'s reason for banning the t-shirt and making the students return all of the t-shirts they had already made is that by displaying this little adaptation of the "ape to man" graphic (holding brass instruments), the school band is "promoting religion."¹

The Sedalia Democrat reports:

[Assistant Superintendent] Pollitt said the district is required by law to remain neutral where religion is concerned.

“If the shirts had said ‘Brass Resurrections’ and had a picture of Jesus on the cross, we would have done the same thing,” he said.

Band parent Sherry Melby, who is a teacher in the district, stands behind Pollitt’s decision. Melby said she associated the image on the T-shirt with Charles Darwin’s theory of evolution.

“I was disappointed with the image on the shirt.” Melby said. “I don’t think evolution should be associated with our school.”

Since reading this story I have wondered whether the school band members have a First Amendment case against the school district. Based on the facts and the school district's stated reasons for banning the t-shirts, the answer is a resounding yes.

The First Amendment to the Constitution prohibits the government from passing laws or otherwise inhibiting the right to free speech and free expression of ideas. In this case, the Sedalia, MO school district is clearly part of the government; and the district's actions have clearly inhibited the school band's right to free speech and free expression.

Despite the plain language of the First Amendment, courts have granted school districts and administrators considerable latitude in controlling or limiting certain types of speech and expression on school property and at school events. The courts' justification for granting this latitude to school administrators has been based on the need to maintain an orderly, safe and constructive atmosphere in schools and at school events that will allow schools to achieve their primary goal of educating students in the prescribed curriculum [these last two words are very important.]

Now let's examine the Asst. Superintendent's stated reason for banning the t-shirts:

[Assistant Superintendent] Pollitt said the district is required by law to remain neutral where religion is concerned.

“If the shirts had said ‘Brass Resurrections’ and had a picture of Jesus on the cross, we would have done the same thing,” he said.²

First, we note that the supt. does not say that he banned the t-shirts because he found that they were offensive, divisive or disruptive to the student body. He says he banned the t-shirts because he believes the scientific theory of evolution is a "religion" and school policy says the school must be "religion neutral."

Assuming that the Sedalia, MO school system has biology classes, the school's own curriculum requires that science teachers teach the scientific theory of evolution to students; that students must take at least one biology course where evolution is taught; and that students must pass at least one biology course to graduate high school.

So given the asst. supt's holding that evolution is a "religion" akin to Christianity, the school district is unwittingly requiring its science teachers to teach a religion, requiring students to take a course in religion, and requiring students to pass a course in religion to get their diploma. Who knew?

Now let's be a sympathetic judge and give the asst. supt. a pass on his stated reason and assume what he really meant was that he banned the t-shirt because he believed its content might be offensive to some members of the student body whose religion finds the scientific theory of evolution to be offensive. And let's assume the asst. supt. believed the t-shirt graphic was so offensive to students of this religion that it might be divisive and disruptive when worn at school and school activities and this disruption would interfere with the school's primary purpose to educate students in the prescribed curriculum.

You can see where this is going. Even if we grant to the asst. supt. a far more rational and legally defensible justification than he provided, it still leads to the same place. If a mere school band t-shirt containing an iconic graphic associated with evolution is so offensive, divisive and disruptive to the student body and the function of the school that it must be banned, then how can the school district tolerate a curriculum which requires the teaching of this concept, hiring and paying teachers to do nothing but teach this concept, and requiring that students must take and pass these classes to get a diploma?

This is like the Sedalia, Missouri school district having an entire department devoted to teaching students how to cultivate marijuana, how to smoke marijuana, and requiring them to take "labs" where they actually grow and smoke marijuana in class, and then banning the school science club from making a t-shirt that shows a marijuana leaf.

So how would the students have a court case here?

First, let's remember that a school district's authority to overrule the First Amendment and limit speech and expression by students is strictly limited and proscribed by decades and decades of case law.

Second, the asst. supt's stated reason for banning the t-shirt ("expressing support for the scientific theory of evolution is a form of religious expression") is ludicrous on its face.

Third, even if we grant that what the asst. supt. actually meant to say is that he banned the t-shirts because their illustration of scientific evolution in an allegorical sense is offensive to some students and is therefore divisive and disruptive to the school's educational mission, he fails even more miserably.

By definition, displaying on a t-shirt the exact same illustrations found in textbooks that the school requires students to read and learn cannot be offensive, divisive and disruptive to the school's educational mission. Such a finding would require that the school's educational mission is offensive, divisive and disruptive to the school's educational mission. Enter band mom and Sedalia school teacher Sherry Melby:

“I don’t think evolution should be associated with our school.”

The students also have a separate claim under the equal protection clause of the Constitution because the school district allows the exact same graphics to be presented in their biology textbooks, by their teachers in class lectures, by other students in their homework, papers and reports, and by students in their science fair projects. This last example is perhaps most important.

If the Sedalia, MO school district can ban the use of this graphic on a t-shirt because it violates the school's "religious neutrality" policy, then the school district has an affirmative duty under its own stated policy to remove any student science fair project that contains this graphic or contains any mention of evolution, Charles Darwin, etc. This is because, as a matter of law, school policies limiting speech and expression must be applied equally and without discrimination.

Unless the school starts pulling down every student science fair project or any other student created expressive product that contains any mention, allusion or reference to biological evolution, then the school's application of its "religious neutrality" policy is arbitrary and capricious and is unlawful under the Constitution. The kids have an excellent legal case if they wish to pursue it.

This shows the band members of Smith-Cotton High School in Sedalia, Missouri know enough about biological evolution to allegorize it to the evolution of brass musical instruments. This shows these students understand the most basic elements of evolution and can correctly allegorize it to other areas of human experience. Instead of being rewarded for making such an astute cross-disciplinary connection, the band members are now being punished for it.

This means the students are being punished for learning exactly what the school's prescribed curriculum is supposed to teach them.

Cue Pink Floyd's The Wall.

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¹ Given the asst. supt.'s reasoning, any musical piece performed by the Smith Cotton High School band that has a religious origin or content would violate the school's "religious neutrality" policy. If anything, the asst. supt. should be paying more attention to the band's playlist, since nearly all musical pieces in the jazz canon are ultimately derived from religious spirituals. And let's not even get into the use of trumpets by Joshua and the Israelites to blow down the walls of Jericho. Joshua 5:13-6:27

²The asst. supt. is wrong on this point as well. A school band t-shirt with a picture of Jesus Christ on the Cross chosen solely to illustrate a show theme titled "Brass Resurrections" would not necessarily violate the establishment clause of the Constitution. Granted, it would be a fairly crappy graphic concept, but if the intent of the graphic was simply to make a visual and allegorical pun on the word "resurrection" such a t-shirt would be in the same category of zillions of music records that make lame visual puns on their album covers and t-shirts. Assistant superintendents of schools should have at least enough education to understand how a graphic can be used in a purely allegorical context.