By Taryn MacKinney
Taryn MacKinney is an Executive Editor of the Penn Undergraduate Law Journal and a student at the University of Pennsylvania.
A recent Colorado lawsuit has sparked controversy over religious expression in public schools. Chase Windebank, a Colorado Springs high school student, is suing his school district for what he deemed a violation of his First and Fourteenth Amendment rights.
Though the lawsuit – still in its infancy – has already generated intense debate, the topic isn’t new; the issue of free speech in schools has been battled out for decades in courts. Since the landmark Tinker v. Des Moines (1965) case, which ruled in favor of student rights when it claimed that neither “students [nor] teachers shed their constitutional rights…at the schoolhouse gate,” the Supreme Court and circuit courts have ruled erratically.  In Bethel School District v. Fraser (1986), Hazelwood v. Kuhlmeier (1988), and Morse v. Frederick (2007), the Supreme Court refined Tinker by adding parameters to student free speech. In B.H. v. Easton Area School District (2014), however, the US Court of Appeals for the Ninth Circuit reversed this decades-long trend by upholding the rights of students to wear controversial breast cancer bracelets; the Supreme Court rejected the School District’s appeal, solidifying the stance taken by the lower court.  Now, only a little more than a year after B.H. v. Easton, the Windebank lawsuit promises to stir things up again.
Windebank, a senior at Pine Creek High School, was told he and other students were not allowed to gather informally to sing, pray, and engage in Christian religious discussions during school hours.  Windebank and others had allegedly participated in these gatherings for years, meeting in an unoccupied choir room.  The plaintiff’s civil complaint argues that the group used the room with permission, never “disrupted or interfered with instructional activities,” and – until the ban that sparked Windebank’s lawsuit – never faced opposition or concern from school officials. 
Most compellingly, the plaintiff claims that the prayer group met during “Seminar Time,” described by the school’s student handbook as daily meetings designed to “develop a sense of community” between students and staff members and allow students to engage in academic study.  While the prayer group did not conform to this definition, the plaintiff civil case contends that academically successful students were excused from Friday Seminar.  In its place, these students were allegedly allowed “Open Time” to socialize, study, or “engage in a virtually unlimited variety of activities.” 
While the religious context of the case strikes a personal chord for many Christians, the plaintiff’s allegations may prove to be unfounded. A letter to the plaintiffs from a school district official stated, “Seminar…is class time and considered instructional time…Therefore, Mr. Windebank may resume his prayer meetings at Pine Creek High School, but he must do so during non-instructional time…”  Another school spokesperson denied the existence, both formal and informal, of the Open Time Policy described by the plaintiff.  Indeed, no formal mention of such a policy exists in school or district records, including the student handbook.
In fact, the civil complaint’s assertions about the “Open Time Policy,” implying the existence of a formal, well-established, district-wide protocol, are somewhat suspicious. No such policy officially exists, and the civil complaint draws only from a few vague phrases in the High School Student Handbook to support their claim.  Even if students were casually allotted some form of free time, this lack of formality may give the district an upper hand, particularly in arguing that the prayer group ban is supported by the Equal Access Act. 
That said, however, the plaintiff’s argument also has strong points. Given that the students allegedly met for years prior to the incident, the school’s decision to halt the prayer meetings seems arbitrarily timed. Additionally, the civil complaint posits that “similar, but nonreligious” gatherings of students are routinely permitted during school hours, implying that the shutdown of Windebank’s prayer group may have been discriminatory in nature.  Though school officials have yet to address this, these issues are likely to be explored more fully as the case takes shape.
Regardless, the lawsuit may not be a simple one. Free speech concerns and secondary school policy clash frequently in courtrooms, and the religious backdrop of Windebank’s lawsuit will continue to turn heads. As the District Court of Colorado proceeds with the case, followers of the lawsuit would do well to disregard impassioned, but often factually misinformed, media commentary. “You will…not hear the sweet sounds of Christian young people singing about that amazing Grace,” laments an emotional Fox News opinion column, now being read and circulated widely.  With a 25-page civil complaint and only a letter or two from school district officials, it’s no wonder that media oftentimes labels Windebank the victim.
 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).
 Beard, Katherine. "Supreme Court Declines to Hear Case on 'Boobies' Bracelet Ban." U.S. News and World Report Newsgram. Last modified March 10, 2014. Accessed November 19, 2014.
 Verified Complaint for Declaratory and Injunctive Relief, Windebank v Academy School District #20, Case 1:14-cv-02035. D CO filed November 7, 2014.
 Windebank Civil Complaint, 9.
 Pine Creek High School. Student/Parent Handbook 2014-2015. Accessed November 19, 2014. http://www.asd20.org/Schools/pchs/Documents/Important%20Documents/PCHS%20Student%20Handbook%2014-15.pdf
 Windebank Civil Complaint, 6.
 Patricia P Richardson (on behalf of Academy School District 20). Letter to Plaintiff Attorney Jeremy D Tedesco. Last modified October 9, 2014. Accessed November 20, 2014.
 Debbie Kelly. “Lawsuit claims Colorado Springs school limits student’s Constitutional right.” Colorado Springs Gazette. Last modified November 11, 2014. Accessed November 20, 2014.
 For examples, see Windebank Civil Complaint, 7.
 Richardson, District Letter.
 Windebank Civil Complaint, 14.
 Todd Starnes. “School tells kids: Stop praying to Jesus, singing Amazing Grace.” Fox News. Last modified November 10, 2014. Accessed November 20, 2014. http://www.foxnews.com/opinion/2014/11/10/school-tells-kids-stop-praying-to-jesus-singing-amazing-grace/
Photo Credit: Flickr User Rachel Titiriga