O'Connor v. Washburn University, No. 04-3103.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Murphy
• Citation: 416 F.3d 1216
• Parties: Thomas O'CONNOR; Andrew Strobl, Plaintiffs-Appellants, v. WASHBURN UNIVERSITY; Board of Regents of Washburn University; Jerry B. Farley, individually and in his official capacity as President, Washburn University, Defendants-Appellees.
• Docket Number: No. 04-3103.
• Decision Date: 28 July 2005

416 F.3d 1216 Thomas O'CONNOR; Andrew Strobl, Plaintiffs-Appellants,
v.
WASHBURN UNIVERSITY; Board of Regents of Washburn University; Jerry B. Farley, individually and in his official capacity as President, Washburn University, Defendants-Appellees. No. 04-3103. United States Court of Appeals, Tenth Circuit. July 28, 2005.

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Robert J. Muise, Thomas More Law Center, Ann Arbor, MI, for Plaintiffs-Appellants.

Stanley D. Davis (Kayden B. Howard, Kristen A. Page, with him on the brief), Shook, Hardy & Bacon, L.L.P., Kansas City, MO, for Defendants-Appellees.

Before MURPHY, BALDOCK, and TYMKOVICH, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiffs-appellants Dr. Thomas O'Connor and Andrew Strobl filed suit under 42 U.S.C. § 1983 against Washburn University, the Washburn Board of Regents, and Washburn President Dr. Jerry B. Farley individually and in his official capacity, claiming a statue placed on the Washburn campus violated their rights under the First Amendment of the United States Constitution. The statue in question is

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entitled Holier Than Thou and depicts the head and upper torso of what appears to be a Roman Catholic bishop. See Attachment. Appellants argue the statue's presence on the campus of a public university constitutes an unconstitutional endorsement of an anti-Catholic message. They seek nominal damages as well as declaratory and injunctive relief.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court dismisses appellants' claims for injunctive and declaratory relief as moot and, as a consequence, vacates the judgment of the district court as to those claims since subject matter jurisdiction is now lacking. As to the remaining claim for nominal damages, this court holds that the statue's placement on Washburn's campus under these circumstances does not constitute an unconstitutional endorsement of an anti-Catholic message and therefore affirms the decision of the district court.

II. BACKGROUND

Washburn University is a municipal university in Topeka, Kansas funded by city and county taxes. The university is governed by a nine-member Board of Regents, which is responsible for appointing the university president. The president has the authority to expend university resources and to place or remove works of art on the Washburn campus without approval.

Since 1996, Washburn's Campus Beautification Committee has selected approximately five statues each year for display in a temporary outdoor sculpture exhibition. The exhibition supplements the university's collection of twenty-five outdoor statues permanently situated on campus. President Farley appoints the members of the committee from the local community and from Washburn's faculty and staff. For the 2003 exhibition, the committee chose a three-member volunteer jury made up of art professionals to select works for display. The jury chose five sculptures from among the ninety submissions received.

One of the chosen statues, entitled Holier Than Thou, depicts a Roman Catholic bishop with a contorted facial expression and a miter that some have interpreted as a stylized representation of a phallus. The bronze statue measures thirty-seven inches high by twenty-seven inches wide and is inscribed with the words, "The Cardinal." Its caption reads:

The artist says, "I was brought up Catholic. I remember being 7 and going into the dark confessional booth for the first time. I knelt down, and my face was only inches from the thin screen that separated me and the one who had the power to condemn me for my evil ways. I was scared to death, for on the other side of that screen was the persona you see before you."

The jury's selections were approved by the committee and by President Farley. None of the other statues chosen for the exhibition involved obvious religious themes.

Greg Inkmann, a member of the Campus Beautification Committee, was responsible for choosing where to display Holier Than Thou on campus. He placed the statue along a high-traffic sidewalk between the student union and the main administrative building, at a location used for other statues in past exhibitions. Inkmann testified that he placed the statue near a sidewalk because it was a small piece with fine detailing that could not be

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appreciated from a distance. Four other works of art were displayed within 200 feet of the sculpture, the nearest being thirty-three feet away. A brochure, available at the campus art museum, pictured the works in the exhibition and included a map identifying the location of each. The area chosen for the statue was not generally open for the display of art by the public or the Washburn community.

Within days of installation, Washburn began receiving calls, letters, and e-mails complaining about Holier Than Thou. Washburn staff and students, including appellants, told university officials they were deeply offended and hurt by the statue's negative portrayal of the Roman Catholic religion. Other Catholics from across the nation also contacted Washburn to complain. The Archbishop of Kansas City wrote to President Farley that he was "surprised and dismayed that the university would allow such a piece which many recognize as not only insensitive and insulting but even obscene."

In response to the controversy, President Farley issued a press release explaining his refusal to remove the statue from campus. The press release read:

One of the pieces on display this year has engendered much discussion. People perceive and respond to art differently based on their individual backgrounds. No one involved in the selection process or in any aspect of the Campus Beautification Committee intended for any viewers to experience pain or hurt. We all regret if this has occurred.

One of the purposes of art is to engage us intellectually and emotionally. This work apparently has fulfilled that function as there is a wide variety of commentary on the piece, ranging from support to opposition.

There is no solution that will be satisfactory to everyone at this point. As a university, we should take this opportunity to create a positive educational experience. Seminars can be organized surrounding this work of art and its symbolism. Speakers could address the aesthetic elements, religious perspectives and issues facing contemporary religions. Different points of view must and can be represented so the seminars are a valuable educational opportunity for the campus and the community.

Soon after President Farley's press release, the Campus Beautification Committee called a special meeting to discuss the issue. During the meeting, committee members stated that they had not construed the statue to be anti-Catholic or the bishop's miter to be phallic when they selected it for exhibition. Several days later, the Board of Regents met to decide whether Holier Than Thou should be removed from campus. The board heard from speakers in support and in opposition to the statue. By a 5-2 vote, the regents decided to leave Holier Than Thou in place.

Appellants O'Connor and Strobl filed suit under § 1983, claiming the sculpture violated their rights under the Establishment Clause of the United States Constitution by conveying a message of state-sponsored disapproval of their religious beliefs. O'Connor is a tenured professor of biology at Washburn University. Strobl at the time the complaint was filed was a full-time student at Washburn who lived on campus at a student residence hall and served as president of the university's Catholic Campus Center. Both appellants are devout Catholics.

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In their complaint, appellants claim the statue "mocks God the Father" and "attacks the sacrament of Penance, the ecclesiastical authority of the Roman Catholic Church, and the role Christ plays in the sacrament of Penance." They argue the contorted expression on the face of the statue, combined with a bishop's miter they believe represents a phallus, portrays the church in a negative light. Because Catholics believe that priests are "like the living image of God the Father," appellants contend that the statue mocks God as well as the Catholic religion. Furthermore, appellants claim the bishop depicted in the statue is in the act of administering the sacrament of Penance, a time when the priest is "in persona Christi," or "in the person of Christ." The reference in the caption to the "persona you see before you," appellants argue, is therefore an attack on Christ.

Appellants requested a temporary restraining order, injunctive and declaratory relief, and nominal damages. The district court denied the motion for the temporary restraining order and by consent of the parties consolidated the preliminary injunction hearing with the trial on the merits. After a two-day hearing, the court entered judgment for defendants. Analyzing the question under the three-part test set forth by the Supreme Court in Lemon v. Kurtzman, the district court concluded that the context and content of the statue evinced the secular purposes of broadening the university's educational experience and beautifying the campus. 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). The court further concluded that a reasonable observer would not find that the statue had the primary effect of conveying a message of disapproval of the Roman Catholic religion, and that the context of an "outdoor museum" mitigated any possible anti-religious significance. O'Connor and Strobl appeal the district court's judgment.

Because the annual outdoor sculpture exhibition came to an end in July 2004, Holier Than Thou is no longer displayed on the Washburn campus.

III. DISCUSSION

A. Mootness

In their complaint, appellants request declaratory and injunctive relief, nominal damages, and reasonable costs and attorneys fees pursuant to 42 U.S.C. § 1988. Because the statue has now been removed from campus, the claim for injunctive...