Costly Victory for Religious Liberty

Liberty Counsel, a Religious Right legal group, “came in after the fact, stirred up some controversy, raised some money on this invented issue, and will leave town likely with $265,000 in taxpayer money that would be better spent on the students in our community,” said a lawyer for the Santa Rosa, Florida School District.

Back in 2008, students had sued Santa Rosa, because its personnel routinely promoted religion. The American Civil Liberties Union (ACLU) backed the students. Santa Rosa settled the suit, pledging that its staff and agents would no longer advance religion at school events.

In May 2010, Liberty Counsel, representing twenty-four individuals, including Santa Rosa teachers and staff, sued to restore the pervasively religious character of the district. In defense of the settlement, the ACLU represented Santa Rosa. The case was Allen v. Santa Rosa.

In July, Liberty Counsel settled for some marginal changes and a hefty payment.

In its brief, Santa Rosa said, “The speech and conduct that are the focus of the plaintiffs’ complaints are either not restricted or are properly restricted under…constitutional principles.”

For example, the plaintiffs alleged that Santa Rosa policy forbade personnel to use such phrases as “Thank heavens,” but it did not. Plaintiffs objected to the ban on teacher participation in religious clubs, which the district properly imposed.

The July agreement allowed the plaintiffs to do what the policy had never prohibited and generally disallowed activities the policy had already ruled out.

When Liberty Counsel first challenged the Santa Rosa policy, it got lots of publicity for its claim that the district forced its personnel to pray in closets. Santa Rosa never made employees worship in closets, but it did forbid them to pray where students could see them; and the July settlement confirmed that dictum.

Liberty Counsel did get two noteworthy changes.

Under the July agreement, teachers who attend private baccalaureate services may participate as a body: sit together, dress alike, and otherwise behave as if they collectively represented the school.

School personnel may host or attend Bible study sessions with colleagues at school in the early morning, before students arrive or school buses pull up.

The settlement left some issues unclear. The plaintiffs wanted the district specifically to permit its personnel’s use of commonplaces, like “Good heavens,” and religious propositions, like “God will take care of you.”

The July settlement explicitly allowed “God bless you” and “Thank heavens,” but it said nothing about “God will take care of you” and its like.

The plaintiffs sought authority to bow their heads and fold their hands when students prayed. The agreement said they could fold their hands but not bow their heads.

Although Santa Rosa effectually won on the legal issues, it had to pay Liberty Counsel about $265,000 to settle both this case and a parallel lawsuit now in U.S. Appeals Court.

Because the ACLU acted to defend the settlement it had made as lawyer for the students, it had a right to charge its expenses in the Allen suit to Santa Rosa.

However , an ACLU attorney wrote to the School Board, “We recognize the burden this litigation has placed on taxpayer and the district and therefore waive that right. We hope that Liberty Counsel might consider doing so as well.”