Yesterday, a U.S. Magistrate Judge issued his “report and recommendation” in the case of Joelle Silver, a public school teacher and devout Christian who was forced by officials in her public school district to censor her personal speech and remove all religious content from her classroom under threat of being fired. The magistrate judge, sitting in the U.S. District Court for the Western District of New York, issued a mixed report, recommending that the U.S. District Court Judge assigned to the case grant in part and deny in part the Cheektowaga Central School District’s motion to dismiss Silver’s lawsuit.
Silver, who is represented by the American Freedom Law Center (AFLC), is arguing that school officials restricted her personal, non-curricular speech and effectively ordered her to cease being a Christian while she is on school property in direct violation of the First Amendment and the equal protection guarantee of the Fourteenth Amendment.
Robert Muise, AFLC Co-Founder and Senior Counsel, commented:
“Similar to the School District’s censorship of Ms. Silver’s speech, the magistrate judge’s report and recommendation is dripping with hostility to religion.”
The magistrate judge recommended dismissing Silver’s claims related to the School District’s censorship of her personal “religious-themed materials” that she posted in her classroom, claiming that the School District’s discrimination was justified because school officials feared that by allowing the personal speech, it could run afoul of the Establishment Clause, particularly in light of the fact that school officials received a threatening letter from the Freedom from Religion Foundation complaining about Silver.
However, the magistrate judge recommended that Silver’s equal protection claim against the School District for selectively enforcing its rules and regulations against her as the faculty advisor of the student Bible Study Club while permitting the faculty advisor of the student “Gay Straight Alliance” or GSA club to engage in similar conduct can proceed.
The School District also ordered Silver to remove small, personal sticky notes that contained inspirational Bible quotes and religious messages that she kept discreetly on her desk. To add further insult, the School District informed Silver that if she needed “to occasionally glance at inspirational Bible verses between classes during the course of the day,” then she should “keep such material in a discreet folder that only [she] will have access to” and only “so long as [she took] precautions not to share it or disclose its content to [her] students or their parents or guardians.”
In addition, the School District ordered Silver “to refrain from all other forms of communication with students during the school day (whether verbal, email, texting, written, etc.) that would conflict with [her] duty to show complete neutrality toward religion and to refrain from promoting religion or entangling [herself] in religious matters.”
Regarding Silver’s role as the faculty advisor for the student Bible Study Club, the “counseling letter” warned her that “[u]nder no circumstances should [she] participate in the club’s meetings or activities. Likewise, under no circumstances should [she] permit any club activities that could be interpreted as being promoted or sponsored by [her], or the larger District for which [she] work[s].” However, the School District permits the GSA faculty advisor to promote the annual “Day of Silence,” as well as other activities of the GSA that promote gay rights. During the “Day of Silence,” for example, students wear signs during the school day and they do not talk for the entire day. The School District permits the student participants in the “Day of Silence” to remain silent during actual class time without suffering any adverse consequences for failing to participate in class or answer questions from their teachers.
Consequently, the School District permits other teachers, faculty, and administrators to “permit . . . club activities that could be interpreted as being promoted or sponsored by” the School District. As noted, the magistrate judge concluded that this selective enforcement of the School District’s rules and regulations violates the equal protection guarantee of the Fourteenth Amendment.
According to the “counseling letter,” which was signed by the superintendent and is now a permanent part of Silver’s employment file, failure to follow any of the directions would lead to “serious disciplinary consequences, including the termination of [her] employment.”
Muise continued:
“To assert that the School District was justified in ordering Ms. Silver to remove small, sticky notes containing handwritten, inspirational Bible verses that she attached to the back her desk for fear that these small, personal notes would violate the Establishment Clause, as the School District argued and the magistrate judge found, is simply absurd. Indeed, this case should remove any lingering doubts as to whether our government, which includes the judiciary, is hostile to religion. But I can assure you that this fight is far from over.”
David Yerushalmi, AFLC Co-Founder and Senior Counsel, commented:
“We are clearly witnessing the systematic removal of religion from all spheres of life, which is why it is critically important that we redouble our efforts. We can assure you that the American Freedom Law Center will not sit idly by as the government tries to take away our first freedoms.”
The parties will have 14 days to file objections to the magistrate judge’s report and recommendation.