A lawsuit charging that Columbine High School officials violated the religious rights of victims' families, filed by the conservative legal institute best known for supporting Paula Jones' lawsuit against President Clinton, is only the latest battle over who owns the Columbine tragedy and how it gets remembered.
Monday, families and friends of Daniel Rohrbough and Kelly Fleming filed suit in federal district court in Denver charging the district violated their right to free speech and religion by removing 4-by-4-inch art tiles they had created with religious symbols and slogans. They are represented by local attorneys affiliated with the Rutherford Institute, the Virginia group behind the Jones sexual harassment case.
The suit does not seek damages, but the families will seek attorney's fees. On its Web site, the Rutherford Institute is also requesting donations to assist in the case. The goal is to get the religious tiles placed inside the school.
Several key facts in the case are undisputed by either side. Everyone agrees that throughout the summer, the school encouraged students, faculty, families and community members to paint 4-by-4 ceramic tiles, to be displayed around the school, as a way to take part in the $1.2 million post-shooting restoration process. About 1,500 new tiles were painted and hung this summer, joining 500 placed over the past three years.
The tiles were hung by community volunteers, supervised by a staff member from the school, according to school district spokesman Rick Kaufman. "There were some circumstances that occurred that some of them got up that shouldn't have gotten up," he said. Kaufman declined to comment further, citing the pending litigation. Some tiles were rejected up front, because of content deemed inappropriate, and about 80 more were chiseled off the walls later.
The suit describes several of the disputed tiles. One contained the phrase "Jesus Christ is Lord," and another was inscribed with the following passage from Isaiah: "There is no peace says the Lord for the wicked." Several other tiles named in the suit included symbols of crosses and Rohrbough's name.
The suit charges that "[participants] could not place dates, names of their slain children, initials or religious symbols on their tiles because of fear of a lawsuit by the American Civil Liberties Union."
Kaufman acknowledged that the district imposed those restrictions, but disagreed about the reason. He said religious symbols were forbidden because of clear church-state violations, not because of ACLU threats. The ACLU was actually mentioned by a parent during a lengthy meeting with school officials, he said.
One news report Thursday said that about 80 of the tiles contained graphic depictions of violence or referenced the tragedy. However, Kaufman said that such images were in the minority, and that they chiefly involved religious symbols or names and dates.
The central point of contention is whether the art project opened up a "public forum," which the institute says changes the church-state rules. "They created a public forum," said Rutherford president John Whitehead. "And once they do that, they have to be careful -- they can't discriminate on the basis of content, and they did that."
The district contends that the project was never intended nor communicated as a forum to express ideas. The statement released Thursday argued that such a forum would have "require[d] the permanent display of messages with which many people, including family members of those killed in the Columbine tragedy, might take offense."
District spokesperson Marilyn Saltzman said many community members wanted to help with the school's restoration this summer, but because of severe time restrictions, it wasn't practical to bring volunteers in to pound nails and hoist beams like a Habitat for Humanity project. So officials seized on expanding the existing tiles project to allow people to feel a part of the solution, and also to draw students back into the building before school started, to ease first-day trauma.
They told participants it wasn't intended as a memorial, and asked them to stick to abstract images, to fit in with the mosaic character of the existing project. Those explanations square with the information given to reporters this summer, many of whom, including Salon News, observed some of the painting sessions.
Whitehead scoffed at that restrictive approach. "Well, they should have drawn the art then. They can't direct your mind. [Participants] are going to put something on the wall that's important to them, not what's important to the school. It's not the school's thing that's important, it's what's important to these people." He also said the issue should be framed not as a church-state issue, but an individual rights issue.
Kaufman said district lawyers have advised him that even if the project constituted a public forum, the establishment clause of the Constitution would still forbid them from permanently displaying religious artifacts.
"So what if there's a few religious things on the wall," Whitehead responded. "All you've got to do is empty out your pockets right now, and it says God all over the money."
Another crucial point of contention concerns two follow-up sessions held over homecoming weekend late last month, where victims' parents were brought back in to create new tiles. The suit charges that the school allowed parents back to paint new tiles with names, dates and initials as memorials, but still prohibited religious symbols and messages. "Only religious symbols and/or religious messages were excluded by the Defendants ... " it concludes.
Not surprisingly, the school district describes the agreement differently. "We didn't say that they couldn't create those types of tiles," Kaufman said, "we just said that if they did, they weren't going to be put up in the school. Parents were invited back in to make tiles that could memorialize their children, but they knew from the outset that those were not going to be put up."
This distinction was made particularly clear during follow-up sessions, Kaufman said, and plaintiff Sue Petrone, mother of Daniel Rohrbough, acknowledged as much Tuesday night on the Fox News program "The O'Reilly Factor."
Some of the restrictions were established to keep the tiles from developing into a premature memorial of the Columbine killings, which is a highly sensitive issue. The current fracas pales in comparison to the battle looming next spring. The real church-state battle is likely to erupt when the Columbine High School Memorial Committee offers the community three design alternatives for a permanent memorial, mostly likely to be erected in adjacent Clement Park, on public land.
Committee chairman Bob Easton said he expects heated debate over religious content, though the subject has been deferred while surveys are compiled and initial ideas are accepted. "I know that we're going to have to address that issue, but we really haven't gotten specific to that," he said.
As park district director, Easton also received legal threats from two groups last April over religious content in many of the makeshift memorials that sprung up in Clement Park. He said the memorials went up too quickly to control, and were too temporary to worry about. "To a degree the park turned into a free-speech area," he said. He's expecting the content of any permanent memorial -- inside the school or out -- to be scrutinized carefully, and litigated over unless both sides can reach a consensus.
The lawsuit makes clear that the question of how strong an influence evangelical Christians will have on the memorial project -- a tension that first surfaced at early grief ceremonies -- has not yet been resolved.