The Jackson City Schools board offered a constitutional justification of its own in voting 4-0 to keep the portrait up in its middle school, saying it must protect students' free speech rights. The vote drew cheers and applause from the dozens of people gathered in the elementary school gymnasium.
After huddling with attorneys in closed session for more than an hour, the school board said the portrait belongs to the student group that put it up, the Hi-Y club. The portrait's frame is inscribed with the club's name and the Christian-based service group is the portrait's owner, not the school, the board said.
The board said the portrait is part of a "limited public forum," and that the Jackson schools will allow other student clubs to hang portraits appropriate to their organizations.
"We're in a predicament where we have to balance things," said Superintendent Phil Howard said after the meeting. "We can't make that kind of endorsement (of religion) as a government entity. But we also can't infringe upon the rights of our student groups and our students."
An ACLU spokesman said it will want to see details of the board's position, but remains convinced the portrait is unconstitutional.
"Our position on this is clear: we believe the portrait is unconstitutional sponsorship of religion and should be removed," spokesman Nick Worner said.
The ACLU and another group filed suit last week in U.S. district court on behalf on an unidentified student and two parents in the school district.
Hiram Sasser, director of litigation for the Liberty Institute, a Plano, Texas-based nonprofit that advocates on behalf of public religious displays, and attorney David Shaw of Washington-based Covington & Burling researched the issue and advised the board. Shaw, whose firm is donating its services, said he couldn't guess how the plaintiffs would respond, but said the lawyers had earlier asked their attorneys to meet to discuss the case before the lawsuit was filed.
The portrait had generally been said to have been donated by the student group in 1947, but the school board Tuesday night disavowed ownership and said the Hi-Y club had asserted that it owns the portrait.
It hangs in a hallway, above a side entranceway that leads to the middle school auditorium of the school in Jackson City, a small town about 65 miles south of Columbus nestled in a mostly rural area in the state's Appalachian region. The building was the Jackson High School at the time the portrait was hung.
The challenge to the Jesus portrait began with a Jan. 2 letter to Howard from the Freedom From Religion Foundation, which said it had received "a disturbing report" about the portrait, along with a photo showing it hanging in the school.
At a subsequent school meeting that drew hundreds of people in support of the portrait, Howard defended it as having historical significance, said it was donated by a student group, and added that it hadn't drawn previous complaints.
"I've been here for six years and nobody ever said anything about it," Howard told The Associated Press before Tuesday's meeting. "I think probably the vast majority of the people in the community want it to stay."
The plaintiffs are referred to only by "Sam Doe" in the lawsuit filed by The American Civil Liberties Union of Ohio and the Madison, Wis.-based Freedom From Religion Foundation. A U.S. magistrate in Columbus ruled that the plaintiffs' names could remain publicly anonymous, while being filed under seal and provided to defendants' attorneys.
The plaintiffs' attorneys said in a court filing that their clients would face harassment and intimidation, citing threatening social media comments saying those disagreeing with the portrait should leave Jackson and go to another school.
The lawsuit against the Jackson schools contends that "maintenance and display of the portrait has the effect of advancing and endorsing one religion, improperly entangling the State in religious affairs, and violating the personal consciences of Plaintiffs."
It's the latest legal clash over religious displays in public places. A school district in nearby Adams County battled for years for a Ten Commandments display that courts ruled to be overly religious. However, federal courts including the U.S. Supreme Court have approved some displays if their main purpose was non-religious.
"The basic rule is that the government is not allowed to endorse religion," said Kermit Roosevelt, a constitutional law expert at the University of Pennsylvania Law School. "So there would be two questions here: Is the portrait an endorsement of religion — rather than, say, a recognition of some historical fact — and if so, is it attributable to the government — the school — rather than the students?"