Court Rules Sculpture Is Constitutional

Washburn University did not violate the U.S. Constitution in placing a sculpture that some deemed anti-Catholic on its campus, a federal appeals court ruled last month.

The sculpture, a bronze bust called “Holier Than Thou,” depicts a scowling Roman Catholic clergyman whose headgear, some viewers say, resembles a penis. Washburn, in Topeka, Kan., displayed the piece during the 2003-4 academic year after local volunteers selected it for the university’s annual outdoor art exhibit.

Thomas O’Connor, a biology professor at Washburn who has since retired, and Andrew Strobl, who was a student at the time, filed a lawsuit, arguing that the public university had violated their rights under the Establishment Clause of the First Amendment by placing a statue that was critical of Roman Catholicism on its grounds.

The U.S. District Court in Kansas City, Kan., rejected that claim in February 2004. Washburn did not violate the Constitution, the district court ruled, in part because the sculpture enhanced the university’s educational experience and could not be seen to have the primary effect of criticizing a religious group.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit upheld that ruling. “Regardless of whether the statue sends an anti-Catholic message, any reasonable observer viewing it in context would understand the university had not endorsed that message,” Judge Michael R. Murphy wrote in the appellate panel’s opinion.

The plaintiffs have said they plan to appeal.

http://chronicle.com Section: Money & Management Volume 51, Issue 49, Page A29