By STEVE BRAWNER
What do you do when you’re stuck between a rock and a hard place? Two Arkansas higher education institutions are choosing the rock. All but six public schools will have to make their own decisions.
The rock is the law plus the lawsuit that could come as a result of obeying it. Act 573, passed last year, says every public school district and higher education institution must conspicuously post the Ten Commandments in every classroom and library. The law specifies that the posting must be the Protestant King James Version displayed on a 16-inch-by-20-inch poster or framed copy. The Commandments must be provided through private donations; otherwise, schools don’t have to post them.
The hard place is a federal judge’s ruling this week that states that the law is unconstitutional, but only directly applies to six K-12 public schools. The limit exists because of a U.S. Supreme Court decision last year stating that judges cannot issue “universal injunctions” that reach beyond the parties in a case.
In other words, schools and colleges can obey the law and potentially get named in a lawsuit. Or they can disobey the law and, perhaps, face legal consequences for that.
Given that either-or situation, the University of Arkansas at Fayetteville and the University of Arkansas at Little Rock William H. Bowen School of Law are displaying the Commandments.
The University of Arkansas has been doing so since last fall after Siloam Springs-based Counteract USA donated the copies. As reported by the Arkansas Democrat-Gazette, the Bowen School of Law this week informed students and staff it would post them. This occurred after Sen. Dan Sullivan, R-Jonesboro, personally purchased and delivered copies to the school.
On Monday, U.S. District Judge Timothy Brooks ruled that the law is unconstitutional after families in six school districts sued. Those six districts are Conway, Fayetteville, Springdale, Bentonville, Siloam Springs and Hot Springs – Lakeside. Attorney General Tim Griffin’s office says it will appeal.
The decision was not a surprise. Brooks last August had issued a preliminary injunction stopping four of the districts – Fayetteville, Springdale, Bentonville and Siloam Springs – from hanging the copies. In that decision, he’d written that the law is “plainly unconstitutional.” Conway and Hot Springs – Lakeside, two of an unknown number of districts statewide that installed the Ten Commandments, later were added to the lawsuit and preliminarily enjoined.
That preliminary injunction became a permanent one with Brooks’ ruling Monday. He noted that the Supreme Court ruled in Stone v. Graham in 1980 that public schools can’t post the Ten Commandments without integrating the display into a study of history, civilization or other topics.
Brooks noted that the state’s lawyers had argued that the Ten Commandments are historically important. But he wrote that Act 573 doesn’t require an educational reason to display them.
“Nothing (italics his) could possibly justify hanging the Ten Commandments – with or without historical context – in a calculus, chemistry, French, or woodworking class, to name a few,” Brooks wrote.
He called the displays “coercive” because students won’t be able to avoid them. Because the law doesn’t require schools to teach the Ten Commandments or even acknowledge them, the purpose of the law must be to proselytize, he wrote. Doing so interferes with the religious development of the parents’ children.
The state, as noted earlier, will appeal the case. Gov. Sarah Huckabee Sanders explained in a post on the X social media platform, “In Arkansas, we believe murder is wrong and stealing is bad – and there’s nothing wrong with our students learning that too. We will appeal this ruling and defend our state’s values.”
Again, the ruling applies only to those six districts. Brooks’ ruling not only doesn’t settle the case for them, but it also leaves all the rest of the affected institutions in limbo. It’s going to take a higher court decision to resolve the case statewide. I talked to three different attorneys and got different answers as to whether that decision would have to come from the Eighth Circuit Court of Appeals or the U.S. Supreme Court. Other cases, including one in Louisiana, are farther along in the process.
One school attorney said most districts will probably put up the Ten Commandments if someone donates them.
How does this all play out? In the long term, a court will have to decide. In the short term, we’ll have to wait and see how many Ten Commandments get delivered to schools. And then we’ll see how many people sue to take them down.
Steve Brawner’s column is syndicated to 21 outlets in Arkansas. Email him at brawnersteve@mac.com.