What's wrong with this picture? West Virginia lawsuit says portrait of Jesus in public high school violates church-state separation.

When Harold Sklar moved to a small community in north central West Virginia, he enrolled his children in the local public schools, and like many parents, he hoped that they would be accepted and fit in.

But Sklar, who is Jewish, soon discovered that religion would prove an exceedingly divisive issue. He was shocked to learn that a large portrait of Jesus was prominently displayed outside the principal's office at a high school in Bridgeport.

"I was born in Brooklyn and attended a multicultural public school, where I remember seeing pictures of George Washington and Lincoln," Sklar, an attorney with the U.S. Justice Department, told Church & State. "And I have debated and given lectures at private religious schools, where larger-than-life pictures of religious figures are fine.

"But, boy, when I saw the portrait of Jesus at Bridgeport, I was made to feel very uncomfortable," continued Sklar. "The fact is that the print is one of the world's most widely published religious icons and bolted to the wall right outside the principal's office."

Sklar, whose son graduated from Bridgeport High, has two daughters preparing to attend there. The portrait, he said, "sent to me the unmistakable message that this is our school and you are a guest."

Sklar said that he did not initially believe that filing a lawsuit was the correct course of action. He figured that by bringing the matter to the attention of school officials that they would--perhaps reluctantly--remove the picture.

"I thought the matter was a no-brainer," Sklar said.

But the situation surrounding the display of the portrait of Jesus, Warner Sallman's "Head of Christ," has been anything but a no-brainer for Bridgeport High officials and the Harrison County Board of Education.

Indeed, Sklar made numerous requests over a span of a decade that went ignored. Complaints by other Bridgeport residents were also brushed off, he said.

In early summer after sending several letters to school officials urging them to remove the portrait, Americans United for Separation of Church and State and the ACLU of West Virginia filed a lawsuit in federal court, arguing that the religious picture blatantly violated the First Amendment principle of church-state separation. The legal action, Sklar v. Board of Education, was lodged on behalf of Sklar and another Bridgeport resident, Jacqueline McKenzie.

"Public schools must welcome children of all religious beliefs," said the Rev. Barry W. Lynn, Americans United executive director, in a statement announcing the lawsuit. "Display of a devotional portrait of Jesus sends the unmistakable message that Bridgeport High is endorsing Christianity. That leaves out students with other beliefs and violates the Constitution."

The Sallman portrait of Jesus is certainly the nation's most famous rendering of Christianity's central figure. Stephen Prothero, chairman of the religion department at Boston University, told The Boston Globe that the devotional artwork has sold more than 500 million copies.

The portrait was also at issue in a 1993 Michigan case. The facts of Washegesic v. Bloomingdale Public Schools nearly mirror those in Bridgeport. The picture of Jesus had hung for 30 years outside the principal's office. A U.S. district court found that the display violated the separation of church and state and ordered its removal. The 6th U.S. Circuit Court of Appeals upheld the decision, and the U.S. Supreme Court declined to review the case.

On a number of occasions, Sklar provided copies of the Washegesic ruling to Harrison County school officials in an effort to persuade them to remove the portrait and avoid a legal battle. Americans United and the West Virginia ACLU also cited the ruling in their correspondence to the public school officials and in their lawsuit.

Sklar said that he slowly lost hope that school officials would quietly remove the portrait. He became more active this year, after hearing about other school-sanctioned activities that involved religion and that made his daughter feel excluded.

"The schools in this area have Christ clubs and Christian athletic associations, Christmas plays and pageants that amount to an accepted affirmation as to the correctness of the majority's religious beliefs," Sklar said. "But that is not enough. They also must have this painting bolted to the outside of the principal's office to send the message that this is our school."

Earlier in the year, Sklar went before the Harrison County Board of Education on two different occasions to seek the portrait's removal. During one of his appearances, he again provided Harrison County school officials with the Washegesic decision and rhetorically asked whether a picture of Scientology founder L. Ron Hubbard, the Dalai Lama or Mormon prophet Joseph Smith would be allowed to remain on display.

Sklar was not alone in his quest to encourage Bridgeport and school district officials to abide a fundamental constitutional principle--keeping government and religion separate.

McKenzie, a veteran public school educator of 21 years and Bridgeport resident since 1991, is a Harrison County substitute teacher. She is also the mother of three and a devout Roman Catholic.

McKenzie, a member of All Saints Catholic Church and vice regent of the Catholic Daughters of the Americas, had a daughter and three stepsons who graduated from Bridgeport High. She first noticed the portrait in 1991 when she enrolled her children.

"When you enter the building, you pass the picture; you cannot help but see it," McKenzie told Church & State. "All my kids commented on it. But we did not want to enter the community by making trouble."

Between 1992 and 1995, she was a regular substitute in the Harrison County school system and on a number of occasions at Bridgeport High. McKenzie said she remarked to the principal and other officials that the Jesus picture was inappropriate.

"I asked how the picture got there and whether they knew that it was illegal," McKenzie recalled. "I said, 'you know that has to come down.'"

Like Sklar, McKenzie was ignored by school officials. "I know the school officials realized that I was sincere in my concerns over the picture," she said. "But they essentially blew me off. They would ask, 'what's the harm?'"

McKenzie also said that her son Micah, during his senior year at Bridgeport asked Principal Lindy Bennett why the portrait was still on display and when would it be removed. McKenzie said that her son was told that the only way the portrait would be removed would be by court order.

As the controversy over the picture of Jesus grew, a plan was floated in the community to surround the portrait with other prominent figures, such as President Abraham Lincoln, Mother Teresa, Princess Diana and Malcolm X.

In a May 23 letter to Harrison County school district attorneys, Americans United and the ACLU of West Virginia argued that surrounding the religious picture with secular ones would not cure the constitutional violation.

Citing the U.S. Supreme Court's 2005 McCreary, County v. ACLU ruling, the groups argued that government officials cannot "purge a constitutional violation or avoid liability" by attempting to secularize a religious display. In McCreary, two Kentucky counties were sued for displaying framed copies of the Ten Commandments in government buildings.

Following the lawsuit, the counties posted secular documents near the religious ones. The high court in McCreary concluded that the officials' actions would likely be perceived in the community as scheming to save the religious displays.

McKenzie told Church & State that baser solutions were offered within the community to resolve the battle.

"I've heard a lot of anti-Semitism from the community," she said. "I've heard other parents suggest that the problem would go away if that Jewish guy would put his kids in another school."

McKenzie said the issue is becoming "religiously divisive." She described Bridgeport as small, but increasingly religiously diverse.

"I know we [Bridgeport High School] have Hindu, agnostic, Jewish and Muslim students," said McKenzie, whose husband moved the family to the town after accepting a job at a local hospital. "This is not typical West Virginia. It's in the high-tech corridor. It is essentially a bedroom community that is diverse."

In early June, after increasing public attention spurred by the involvement of Americans United and ACLU, the Harrison County Board of Education considered removing the religious display.

On June 6, Board President Sally J. Cann said Sklar's March 7 presentation had forced her to finally take the dispute seriously. She said she had "listened to countless suggestions and comments" from the public and read the court decision from Michigan before making up her mind.

"This is a constitutional subject," Cann told the crowded board meeting. "Washegesic v. Bloomingdale ruled that the display of a portrait of the religious character Jesus in public school is unconstitutional.

"Trying to defend an already proven case would be a costly endeavor for the Harrison County taxpayers," she continued. "Lawyers in our community have said we could be sued for malfeasance if we attempted to defend this issue. Personally I could not justify this expenditure of funds. So it is with a heavy heart, but a clear and informed mind, that I will vote to remove the picture from the hall at Bridgeport High School."

Board Vice President Wilson W. Currey joined Cann in voting to remove the religious picture. But their votes came to no avail because one member, Doug Gray, was absent and the other two, James E. Bennett and James L. Reaser voted against the motion.

Bennett is leaving the school board, but his replacement, Michael Queen of Clarksburg, has argued for the portrait to stay.

Queen is combative, telling a local television news station that the lawsuit has spurred "an all-out war." He also said that litigating the issue would likely not be too expensive, especially since Religious Right groups were offering to defend the school district for free.

But as Americans United's Lynn pointed out in a June 17 column for The Charleston Gazette, the city's morning daily, Queen's assertion was way off base. Indeed, Lynn noted that a public school district in Pennsylvania had to pony up $1 million in attorneys' fees and legal costs after losing a lawsuit over a policy pushing religion in the science classroom.

The Mississippi-based American Family Association (AFA) was especially interested in the case. According to Agape Press, the organization's online news publication, Americans United and the ACLU had erroneously claimed that the picture's display in the public high school violated "the so-called separation of church and state."

In another Agape Press article, an attorney with the AFA wildly misinterpreted Supreme Court religious liberty jurisprudence, saying that the high court had "pretty much abandoned" the decades-old three-prong test used to determine when church-state violations have occurred. The test from the 1971 high court ruling in Lemon v. Kurtzman requires that laws or government action must have a secular purpose, must not advance nor inhibit religion and must not foster an excessive entanglement with religion.

Although the high court has tinkered with the Lemon test, it has never overruled it. Nor have the federal courts, including the Supreme Court, altered much of their jurisprudence on religious matters in the public schools. School-organized religious activities or promotion of religion remain prohibited.

On Aug. 3, the Harrison County board met again and for the second time voted to stick with defending the portrait. New board member Queen asked the board to support his motion to raise $150,000 in donations by the next meeting on Aug. 15 to pay anticipated legal costs. Queen's motion prevailed by a 3-2 vote. Currey and Cann again voted to stop defending the Jesus portrait, but members Reaser and Gray supported Queen.

Cann told Channel 13, a CBS television affiliate, "Education is not the focus, at the present time, of the Harrison County Board of Education. The Jesus picture is."

Americans United Assistant Legal Director Richard Katskee, who is lead counsel in the case, said, "Display of a devotional portrait of Jesus in a public school is cleary unconstitutional. We hope the problem can be resolved quickly."

Plaintiff McKenzie said she hopes that Bridgeport residents will eventually realize that "'mixing government and religion" is not "what this country is all about."

"The Constitution was framed for good reasons," she said. "We protect minorities from the whims of the majority. I think this situation may shape up to be a great civics lesson, but an expensive one."