## F I L E D United States Court of Appeals Tenth Circuit 

### July 28, 2005 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

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

Appeal from the United States District Court

for the District of Kansas (D.C. No. 04-CV-4001-GTV)

Robert J. Muise, Thomas More Law Center, Ann Arbor, Michigan, for PlaintiffsAppellants. Stanley D. Davis (Kayden B. Howard, Kristen A. Page , with him on the brief), Shook, Hardy & Bacon, L.L.P., Kansas City, Missouri , for Defendants-Appellees.

Before MURPHY , BALDOCK , and TYMKOVICH , Circuit Judges.-2-

MURPHY , Circuit Judge.

I. INTRODUCTION Plaintiffs-appellants Dr. Thomas O’Connor and Andre w Strobl filed suit under 42 U.S.C. § 1983 against Washburn University, the Washburn Board of Regents, and Washburn President Dr. Jerry B. Farleyindividually and in his official capacity, claiming a statue placed on the Washburn campus violated their rights under the First Amendment of the United Stat es Constitution. The statue in question is 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 uni versity constitutes an unconstitutional endorsement of an anti-Catholic me ssage. They seek nominal damages as well as declaratory and injunctive relie f. Exercising jurisdiction pursuant to 28 U.S.C. § 129 1, this court dismisses appellants’ claims for injunctive and declaratory r elief as moot and, as a
consequence, vacates the judgment of the district court as to those cla ims since subject matter jurisdiction is now lacking. As to the remaining claim for nominal damages, this court holds that the statue’s placeme nt on Washburn’s campus under these circumstances does not constitute an un constitutional endorsement of an anti-Catholic message and therefore affirms the decision of the district court.-3-

II. BACKGROUND Washburn University is a municipal university in To peka, Kansas funded by city and county taxes. The university is govern ed by a nine-member Board of Regents, which is responsible for appointing the un iversity president. The president has the authority to expend university re sources and to place or remove works of art on the Washburn campus without approva l. 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 univers ity’s collection of twenty-five outdoor statues permanently situated on campus. Pr esident Farley appoints the members of the committee from the local community a nd from Washburn’s faculty and staff. For the 2003 exhibition, the co mmittee chose a three-member volunteer jury made up of art professionals to sele ct works for display. The jury chose five sculptures from among the ninety submiss ions 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 phall us. The bronze statue measures thirty-seven inches high by twenty-seven inches wid e and is inscribed with the words, “The Cardinal.” Its caption reads: The artist says, “I was brought up Catholic. I rem ember being 7 and going into the dark confessional booth for the firs t time. I knelt-4-

down, and my face was only inches from the thin scr een that separated me and the one who had the power to conde mn me for my evil ways. I was scared to death, for on the otherside of that screen was the persona you see before you.” The jury’s selections were approved by the committe e and by President Farley. None of the other statues chosen for the e xhibition involved obvious religious themes. Greg Inkmann, a member of the Campus Beautification Committee, was responsible for choosing where to display Holier Than Thouon campus. He placed the statue along a high-traffic sidewalk between the student union and the main administrative building, at a location used fo r 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 no t be appreciated from a distance. Four other works of art were displayed w ithin 200 feet of the sculpture, the nearest being thirty-three feet away. A brochu re, available at the campus art museum, pictured the works in the exhibition and in cluded a map identifying the location of each. The area chosen for the statue w as not generally open for the display of art by the public or the Washburn commun ity. Within days of installation, Washburn began receivi ng calls, letters, and emails complaining about Holier Than Thou . Washburn staff and students, including appellants, told university officials the y were deeply offended and hurt by the statue’s negative portrayal of the Roman Cat holic religion. Other-5-

Catholics from across the nation also contacted Was hburn to complain. The Archbishop of Kansas City wrote to President Farleythat he was “surprised and dismayed that the university would allow such a pie ce which many recognize as not only insensitive and insulting but even obscene .” In response to the controversy, President Farley is sued a press release explaining his refusal to remove the statue from ca mpus. The press release read:

One of the pieces on display this year has engender ed much discussion. People perceive and respond to art dif ferently based on their individual backgrounds. No one involved in t he selection process or in any aspect of the Campus Beautificati on 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 intellec tually and emotionally. This work apparently has fulfilled th at function as there is a wide variety of commentary on the piece, rangi ng from support to opposition. There is no solution that will be satisfactory to e veryone at this point. As a university, we should take this opportunity to create a positive educational experience. Seminars can be o rganized surrounding this work of art and its symbolism. Sp eakers could address the aesthetic elements, religious perspecti ves and issues facing contemporary religions. Different points of view must and can be represented so the seminars are a valuable e ducational 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 i ssue. During the meeting, committee members stated that they had not construe d the statue to be antiCatholic or the bishop’s miter to be phallic when t hey selected it for exhibition. Several days later, the Board of Regents met to dec ide whether Holier Than Thou-6-

should be removed from campus. The board heard fro m speakers in support and in opposition to the statue. By a 5-2 vote, the re gents decided to leave Holier Than Thouin place. Appellants O’Connor and Strobl filed suit under § 1 983, claiming the sculpture violated their rights under the Establish ment Clause of the United States Constitution by conveying a message of state-sponso red disapproval of their religious beliefs. O’Connor is a tenured professorof biology at Washburn University. Strobl at the time the complaint was f iled 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. In their complaint, appellants claim the statue “mo cks God the Father” and “attacks the sacrament of Penance, the ecclesiastic al authority of the Roman Catholic Church, and the role Christ plays in the s acrament of Penance.” They argue the contorted expression on the face of the s tatue, combined with a bishop’s miter they believe represents a phallus, portrays t he church in a negative light. Because Catholics believe that priests are “like th e living image of God the Father,” appellants contend that the statue mocks G od 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 ti me when the priest is “in-7-

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 distr ict court denied the motion for the temporary restraining order and by consent of t he parties consolidated the preliminary injunction hearing with the trial on th e 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 conte nt of the statue evinced the secular purposes of broadening the university’s edu cational experience and beautifying the campus. 403 U.S. 602, 612-13 (1971 ). The court further concluded that a reasonable observer would not findthat the statue had the primary effect of conveying a message of disapprova l of the Roman Catholic religion, and that the context of an “outdoor museu m” mitigated any possible anti-religious significance. O’Connor and Strobl appeal the district court’s judgment. Because the annual outdoor sculpture exhibition cam e to an end in July 2004, Holier Than Thouis no longer displayed on the Washburn campus.-8-

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 fromcampus, the claim for injunctive relief is moot. See Bauchman ex rel. Bauchman v. W. High Sch. , 132 F.3d 542, 548 (10th Cir. 1997). Furthermore, becau se a declaratory judgment would no longer have any effect on defendants’ behavior, the claim for declaratory relief is also moot. Id. at 548-49; see also Utah Animal Rights Coalition v. Salt Lake City Corp. , 371 F.3d 1248, 1256-57 (10th Cir. 2004) (holding that an action for declaratory relief was moot when the requested declaration involved past conduct that was not like ly to recur). Appellants argue prospective relief “is not necessarily mooted” because voluntary cessation of allegedly illegal conduct do es not deprive the tribunal of power to hear and determine the case unless defenda nts can show no reasonable expectation that the wrong will recur. United States v. W.T. Grant Co. , 345 U.S. 629, 632-33 (1953). This is not a case, however, w here the university has unilaterally changed its procedures in an effort to evade judicial review. Rather, as both parties have agreed, Holier Than Thouwas removed from campus at the prearranged termination date of the annual sculptur e exhibition. A defendant-9-

cannot be said to have voluntarily ceased allegedly illegal conduct where, as here, the controversy has become moot through the normal course of events rather than through the unilateral action of the defendant. See DeFunis v. Odegaard, 416 U.S. 312, 318 (1974) (holding the voluntary cessati on doctrine inapplicable in a challenge to law school admissions policies when mo otness depended not on a unilateral change on the part of the defendant but instead on “the simple fact that [the plaintiff] [was] in the final quarter of the f inal year of his course of study”). The Supreme Court has also recognized a separate ex ception to mootness for cases “capable of repetition, yet evading revie w.” Murphy v. Hunt , 455 U.S. 478, 482 (1982). Appellants, however, have not sho wn that this case is capable of repetition because they have advanced no explanation as to how Holier Than Thouwill return to the Washburn campus in the future. See id. at 482-83 (recognizing that the possibility of recurrence mus t be more than theoretical). Although it is conceivable that the university coul d bring some other religiously themed statue onto campus as part of a future sculp ture exhibition, this court cannot resolve the constitutionality of a hypotheti cal future statue given that Establishment Clause questions are heavily dependent on the specific context and content of the display. See Van Orden v. Perry , No. 03-1500, 545 U.S. —, 2005 1500276, at *13 (June 27, 2005) (Breyer, J., concurring in the judgment) (noting that the constitutionality of a display is dependen t on context).-10-

The complaint, however, also includes a claim for n ominal damages. An award of nominal damages is an appropriate remedy f or a violation of the Establishment Clause. See Searles v. Van Bebber , 251 F.3d 869, 878-79 (10th Cir. 2001). Unlike the claims for injunctive and d eclaratory relief, this claim is not mooted by the removal of the statue from campus

. Utah Animal Rights Coalition , 371 F.3d at 1257-58. This court therefore has ju risdiction to consider the nominal damages claim. B. Standing Because it involves the court’s power to entertain the suit, constitutional standing is a threshold issue in every case before a federal court. United States v. McVeigh , 106 F.3d 325, 334 (10th Cir. 1997). In order to have standing, a party invoking the court’s authority “must allege personal injuryfairly traceable to the defendant’s allegedly unlawful conduct and likely t o be redressed by the requested relief.” Raines v. Byrd, 521 U.S. 811, 818-19 (1997) (quotation omitted). To demonstrate an adequate personal inju ry, a “plaintiff must show that he has sustained or is immediately in danger of sus taining some direct injury as the result of the challenged official conduct and t he injury or threat of injury must be both real and immediate, not conjectural or hypo thetical.” City of Los Angeles v. Lyons , 461 U.S. 95, 101-02 (1983) (quotations omitted).-11-

In the context of alleged violations of the Establi shment Clause, this court has held that “standing is clearly conferred by non -economic religious values.” Anderson v. Salt Lake City Corp. , 475 F.2d 29, 31 (10th Cir. 1973). The Supreme Court requires, however, that plaintiffs alleging n on-economic injury must be “directly affected by the laws and practices agains t which their complaints are directed.” Valley Forge Christian Coll. v. Ams. United for Sep aration of Church and State, Inc. , 454 U.S. 464, 486 n.22 (1982) (quotation omitted) . Allegations of personal contact with a state-sponsored image suffi ce to demonstrate this kind of direct injury. Foremaster v. City of St. George , 882 F.2d 1485, 1490-91 (10th Cir. 1989).
Because Holier Than Thouwas displayed at a prominent location on campus between the student union and the main admin istrative building, both O’Connor and Strobl claim they were constantly expo sed to its presence and were forced to alter their schedules and routes across c ampus to avoid it. O’Connor testified that the statue was directly between his office and the student union building, and that he was required to walk past it almost every week in order to attend meetings and social events. Strobl testifie d that the statue was located between his residence hall and the main administrat ive building, and that therefore he was required to alter his route in ord er to attend one of his classes, to-12-

get postings for student organizations, to reach th e registrar’s office, and to handle his financial affairs at the school’s busine ss office. Appellants’ allegations that they were frequently b rought into direct and unwelcome contact with the statue are sufficient to give them standing for an Establishment Clause challenge. See id. ; Books v. City of Elkhart , 235 F.3d 292, 301 (7th Cir. 2000) (“We therefore conclude that a plaintiff may allege an injury in fact when he is forced to view a religious objec t that he wishes to avoid but is unable to avoid because of his right or duty to att end the government-owned place where the object is located.”). Their allegations that they were forced to alter their behavior to avoid contact with the display, a lthough not necessary for standing, further support this conclusion. See Foremaster , 882 F.2d at 1490-91. Both appellants have therefore alleged sufficient p ersonal injury to challenge the constitutionality of the statue’s placement on the Washburn campus.
C. The Establishment Clause
1. Standard of Review In cases arising under the First Amendment of the U nited States Constitution, this court reviews a district court’s decisionde novo

. Snyder v. Murray City Corp. , 159 F.3d 1227, 1230 n.7 (10th Cir. 1998) (en banc ). In doing so, this court has an obligation to make an indepen dent examination of the whole record. Id.-13- 2. The Endorsement Test The Establishment Clause of the United States Const itution provides that “Congress shall make no law respecting an establish ment of religion.” U.S. Const. amend. I. This prohibition applies to the s tates under the Fourteenth Amendment. Everson v. Bd. of Educ. , 330 U.S. 1, 14-15 (1947). The Supreme Court has interpreted the Establishment Clause to “ mandate[] governmental neutrality between religion and religion, and betwe en religion and nonreligion.” Epperson v. Arkansas , 393 U.S. 97, 103-04 (1968). The Establishment Cl ause therefore prohibits not only state actions that adv ance religion, but also actions that are hostile toward religion. Lynch v. Donnelly , 465 U.S. 668, 673 (1984).
In Lemon , the Supreme Court set forth a three-part test fordetermining whether a government action violates the Establishm ent Clause. Lemon , 403 U.S. at 612-13. Under this test, “government action doe s not violate the Establishment Clause so long as it (1) has a secular purpose, (2) does not have the principal or primary effect of advancing or inhibiting religion, and (3) does not foster an excessive entanglement.” Bauchman , 132 F.3d at 551. Justice O’Connor offered a refined version of the Lemon test in her concurring opinion to Lynch v. Donnelly . 465 U.S. at 687-94 (O’Connor, J., concurring). U nder Justice O’Connor’s modified “endorsement test,” “the govern ment impermissibly endorses religion if its conduct has either (1) the purpose or (2) the effect of1 Appellants do not argue that Washburn’s actions con stitute an excessive

entanglement with religion.
-14- conveying a message that religion or a particular r eligious belief is favored or preferred.” Bauchman , 132 F.3d at 551 (quotation omitted). In examinin g challenges to government action under the Establish ment Clause, this circuit has interpreted the purpose and effect prongs of Lemon in light of Justice O’Connor’s endorsement test. Id. at 552. A government action is examined under thi s standard regardless of whether it is alleged to end orse or disparage religion. Roberts v. Madigan , 921 F.2d 1047, 1053-54 (10th Cir. 1990). Appellants claim Washburn’s placement of Holier Than Thouon campus had both the purpose and effect of conveying government disapproval of the R oman Catholic religion. 1 While this appeal was pending, the Supreme Court de cided two cases in which plaintiffs challenged on Establishment Clause grounds the constitutionality of displaying the Ten Commandments on monuments in public areas. McCreary County v. ACLU

, 03-1693, 545 U.S. —, 2005 WL 1498988 (June 27, 20 05); Van Orden v. Perry , No. 03-1500, 545 U.S. —, 2005 WL 1500276 (June 27 , 2005). The plurality opinion in Van Orden upheld the constitutionality of one Ten Commandments display without a discussion of eitherthe Lemon factors or the endorsement test. See Van Orden , 2005 WL 1500276, at *4 (plurality opinion). Furthermore, Justice Breyer’s concurring opinion no ted that “no single mechanical formula [] can accurately draw the const itutional line in every case.”-15-

Id. at *12 (Breyer, J., concurring in the judgment). Until the Supreme Court overrules Lemon , however, it remains binding law in this circuit. In any case, the Supreme Court’s recent opinions establish that an e xamination of the government actor’s purpose, see McCreary County , 2005 WL 1498988, at *10, and the particular context of the display, see Van Orden , 2005 WL 1500276, at *13 (Breyer, J., concurring in the judgment), remain re levant considerations under the Establishment Clause. See also McCreary County , 2005 WL 1498988, at *21-22 (O’Connor, J., concurring) (applying the purpose pr ong of the endorsement test). This court will therefore continue to apply the Lemon test as modified by Justice O’Connor’s endorsement test, while remaining mindfu l that there is “no testrelated substitute for the exercise of legal judgme nt.” Van Orden , 2005 WL 1500276, at *12 (Breyer, J., concurring in the judg ment).

3. Purpose The purpose prong of the endorsement test asks whether “the government’s actual purpose is to endorse or disapprove of relig ion.” Bauchman , 132 F.3d at 551 (quotation omitted). Appellants argue Washburncould have no legitimate secular purpose for placing a statue that mocks the religious beliefs of Catholics at one of the most prominent locations on campus. They further argue that, even if Washburn was unaware of the statue’s anti-Cathol ic meaning at the time they chose to display it, the school’s failure to remove the statue after receiving2 In some situations, the Supreme Court has looked to the context and

content of a government display and concluded that “the government action itself bespoke the purpose” of that action. See McCreary County v. ACLU , 03-1693, 545 U.S. —, 2005 WL 1498988, at *12 (June 27, 2005)

. In McCreary County , for example, the Supreme Court looked at the language i n a Ten Commandments monument as well as the content of the surrounding display in determining that the state acted with an illegitimate purpose. See id. at *15-16. In this case, the context and content of the statue is relevant to th e effect of the display in addition to the university’s purpose. These factors will th erefore be examined in Part III.C.4, infra . For the reasons outlined there, the context and content of Holier Than Thoudo not suggest that the university’s predominant p urpose in displaying the work was to denigrate the Catholic faith.

3 The purpose prong of the endorsement test focuses o n the intent of the government actor in displaying a particular work of art, not on the intent of the artist in creating the work. Summum v. City of Ogden , 297 F.3d 995, 1010 (10th Cir. 2002). Even if the intent of the artist could somehow be imputed to the state, (continued...)
-16- complaints from Catholics itself establishes an ill egitimate purpose. In applying the purpose prong, courts should look to “the tradi tional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act.” McCreary County, 2005 WL 1498988, at *11 (quotations omitted). Accordingly, this court will examine the history of the statue’s display in an attempt to determine whetherthe university’s “ostensible and predominant purpose” in displaying the statue w as to denigrate the Roman Catholic religion. See id. at *10. 2

a. The Selection of the Statue Appellants have produced no evidence that anyone atthe school chose the statue out of hostility toward the Catholic faith. 3 Greg Inkmann testified that3 (...continued)

appellants produced no evidence that the creator of Holier Than Thouintended the statue to send an anti-Catholic message. In fa ct, the artist testified that he intended the statue to be a humorous remembrance of his first sacrament of Penance as a seven-year-old boy.
-17- when the three-person jury viewed the slides of Holier Than Thou , they did not discuss the resemblance of the bishop’s miter to a phallus or any other possible anti-Catholic messages in the statue. When slides of the five sculptures selected by the jury were later shown to the entire Campus B eautification Committee, the minutes show no discussion of Holier Than Thou . Jeanette Bertelson, chair of the committee, testified that the statue “was considere d to be a very fine piece of bronze, and that basically was it.” Until she late r heard about the complaints, Bertelson testified that she was not aware of any p ossible anti-Catholic message in the statue. Similarly, there was no discussion of any anti-Catholic or phallic symbolism when the slides were presented to Preside nt Farley for approval. Washburn argues its decision to display Holier Than Thouwas motivated by two purposes: 1) to enhance the university’s ed ucational experience, and 2) to beautify the campus. These justifications are cons istent with both the educational goals of the university and the mission of the Camp us Beautification Committee, and are further supported by the statements of thos e involved in the selection process. At the special Campus Beautification Comm ittee meeting called after the onset of the controversy, committee members stated that they had seen nothing-18-

offensive in the statue and had based their decisio ns solely on the statue’s quality as a piece of art. Bertelson later told the Board of Regents that works for the exhibit were chosen because they exhibited artistic quality, were composed of media appropriate for outdoor display, and were abl e to engage the viewer and initiate discussion. Appellants dispute both of Washburn’s purported jus tifications for displaying the statue. They cite the Seventh Circu it’s opinion in Freedom from Religion Foundation, Inc. v. City of Marshfield for the proposition that campus beautification is not a sufficient secular purpose to withstand challenge under the Establishment Clause. 203 F.3d 487, 493 (7th Cir. 2000). The court in Freedom from Religion Foundation examined a fifteen-foot marble statue of Jesus Chr ist erected on public property and inscribed with the w ords “Christ Guide Us On Our Way” in twelve-inch block letters. Id. at 489. The court relied on Gonzales v. North Township , 4 F.3d 1412, 1421 (7th Cir. 1993), which held that the purpose of beautifying a public park could not supersede a monument’s predominant religious purpose. Freedom from Religion Found, 203 F.3d at 493. Unlike Freedom from Religion Foundation and Gonzales , however, there is no evidence in this case that the government actor had any reli giously motivated reason for displaying the statue in question. At least when t here is no evidence of improper-19-

motive, campus beautification is a permissible just ification for displaying a work of art. In response to Washburn’s second purported justific ation, appellants argue that the university’s goal of enhancing the school’ s educational environment was not served by displaying a piece of artwork hostile to a group of students on campus, and that the university could have better a chieved its objective by displaying the statue in the campus art museum. Wh ether the university’s chosen methods were the most effective possible means of a chieving its goals, however, is irrelevant to the question whether the university was motivated by anti-Catholic intent. See Lynch , 465 U.S. at 681 n.7 (“The question is whether the display . . . violates the Establishment Clause.”).

b. The Display of the Statue The university’s decision to place the statue at a prominent location on campus does not demonstrate that it was motivated b y an improper purpose. Inkmann testified that he chose the site because ithad been used in previous exhibitions and because viewers would not be able t o appreciate the work’s fine details from a distance. He explained that he set the statue apart from others because he believed every statue “needs to be treat ed as an individual presence” and therefore “needs a certain amount of space.” T he statue was placed outdoors4 The artist testified that he intended the word “per sona” in the caption in its

ordinary meaning of a person’s facade, not, as appe llants contend, as a derogatory reference to the “persona Christi.”
-20- instead of in a museum, as appellants would have pr eferred, simply because it was designed for outdoor display and was selected to be part of an outdoor exhibition. Nor does the evidence show that the statue’s captio n was selected with antiCatholic intent. The record establishes that the c aption had not yet been placed on the statue at the time it was selected by the Ca mpus Beautification Committee and approved by President Farley. The committee de cided to place the statements of the artists on the exhibits not because of hosti lity toward Catholics, but because the statements in previous years had been p ut on brochures that were expensive to print and often wasted. There is no e vidence that anything in the caption was motivated by an anti-Catholic purpose. 4

c. The Decision to Retain the Statue In the absence of evidence showing an awareness by the university of any possible anti-Catholic message at the time the stat ue was selected and placed on campus, appellants argue the university’s failure t o remove the statue after receiving complaints in itself constitutes an impro per purpose. A defendant’s failure to change its behavior in accordance with p laintiffs’ demands, however, is not in itself proof of anti-religious intent. Bauchman , 132 F.3d at 556 (rejecting a-21-

similar argument as a “‘backdoor’ attempt to substantiate an otherwise flawed constitutional claim”). Furthermore, there is no evidence in the record sho wing that the university’s decision to retain the statue was base d on improper motives. Instead, the evidence shows that the university chose to kee p the statue for reasons unrelated to a disapproval of Catholicism. In the press release announcing his decision to retain the statue, President Farley exp lained that there was no solution that would satisfy everyone and that he wanted to t ake the “opportunity to create a positive educational experience.” The meeting minu tes of the Board of Regents disclose that their decision was based on a desire to promote freedom of speech and to avoid academic censorship. The minutes of t he Campus Beautification Committee show that they were motivated by similar concerns. Even though the university was certainly aware of the statue’s perc eived anti-Catholic message at the time it decided to retain the statue, there is no evidence that it agreed with or endorsed this interpretation of the statue. The evidence also demonstrates that the decision no t to move the statue to a less prominent location on campus was not motivatedby an anti-Catholic bias. The Campus Beautification Committee discussed the p ossibility of moving the statue to the campus art museum, but was told there was no room in the museum to accommodate the statue. Washburn’s vice-preside nt of academic affairs-22-

testified that he also considered moving the statue but was told by complaining parties that nothing short of complete removal from campus would be acceptable. There is no countervailing evidence in the record i ndicating that the decision not to move the statue was made for illegitimate reason s. After a thorough review of the record, this court c oncludes that appellants have presented no evidence in support of their view that Washburn selected or displayed the statue with the purpose of denigratin g the Catholic religion. As in Lynch , the evidence in this case is simply insufficient “to establish that the [display] is a purposeful or surreptitious effort t o express some kind of subtle governmental advocacy of a particular religious mes sage.” 465 U.S. at 680.

4. Effect The “effect” prong of the endorsement test asks whe ther a reasonable observer aware of the history and context of the fo rum would find the display had the effect of favoring or disfavoring a certain rel igion. Bauchman , 132 F.3d at 551-52. The Constitution does not require, however , that the purpose of every government-sanctioned activity be unrelated to reli gion. Id. at 554 (“Courts have long recognized the historical, social and cultural significance of religion in our lives and in the world, generally.”). Instead, the question of whether the government has endorsed a particular religious disp lay depends in large part on the display’s particular physical setting. Lynch , 465 U.S. at 671, 681-82, 685-23-

(holding that a crèche in a holiday display did notviolate the Establishment Clause because the display also contained secular o bjects); see McCreary County , 2005 WL 1498988, at *14 (“[U]nder the EstablishmentClause detail is key.”); Van Orden , 2005 WL 1500276, at *13 (Breyer, J., concurring i n the judgment). Appellants argue the statue’s location next to a fo otpath at a prominent location on campus, in an area reserved for officia l use, would lead a reasonable observer to believe the state had endorsed its mess age. Appellants are correct that these factors weigh toward a finding of state endor sement. See County of Allegheny v. ACLU

, 492 U.S. 573, 598 & n.48 (1989) (holding that a c rèche’s location in a prominent location distinct from any other decorations resulted in an unconstitutional endorsement of religion). The effect prong of the endorsement test, however, presumes a reasonable observer “aware of the history and context of the c ommunity and forum” in which the display appears. Sante Fe Indep. Sch. Dist. v. Doe , 530 U.S. 290, 317 (2000) (quotation omitted); see McCreary County , 2005 WL 1498988, at *14. The awareness of this reasonable observer is not limite d to “the information gleaned simply from viewing the challenged display.” Wells v. City & County of Denver , 257 F.3d 1132, 1142-43 (10th Cir. 2001) (quoting Capitol Square Review & Advisory Bd. v. Pinette , 515 U.S. 753, 780 (1995) (O’Connor, J., concurrin g in part and concurring in judgment)). The reasonable observer of Holier Than Thou-24-

would therefore be aware that the statue was one of thirty outdoor sculptures displayed on the Washburn campus, of which several were located within sight of the challenged display. In addition, the existence of a brochure available in the campus art museum describing and mapping all the st atues on campus would make it clear to a reasonable observer that the statues were part of a unified exhibit. The reasonable observer would also be awa re that art in previous years had been placed at the location of Holier Than Thou , and that previous exhibitions had included at least one statue with r eligious symbolism. Viewed in the context of these other statues, Holier Than Thouwas part of a “typical museum setting” that, “though not neutra lizing the religious content of a religious [work of art], negates any message of e ndorsement of that content.” Lynch , 465 U.S. at 692 (O’Connor, J., concurring). A st ate is not prohibited from displaying art that may contain religious or anti-r eligious symbols in a museum setting. See id. at 676-77 & 677 n.4 (noting that the National Galle ry in Washington exhibits more than 200 paintings with re ligious themes). A reasonable observer aware that the statue was part of an outdoor art exhibit would not believe the university endorsed the message of any particular piece of art within the exhibit. See Van Orden , 2005 WL 1500276, at *13 (Breyer, J., concurring in the judgment) (concluding that a monu ment containing the Ten Commandments did not violate the Establishment Clau se when situated among a5 Courts that have held particular works of art to vi olate the Establishment

Clause have tended to focus on the relative isolati on of the challenged work from other government-sponsored displays. Freedom from Religion Found., Inc. v. City of Marshfield, 203 F.3d 487, 495 (7th Cir. 2000) (holding that astatue in a public park violated the Establishment Clause when “[t]he park was created to display the statue, and the City present[ed] no evi dence that other groups have ever used the park to present alternative messages” ); Washegesic v. Bloomingdale Pub. Schs. , 33 F.3d 679, 681, 683 (6th Cir. 1994) (holding th at a portrait of Christ in a public school violated the Establishment Claus e when it was “not part of a group of paintings”); Joki v. Bd. of Educ. , 745 F. Supp. 823, 831 (N.D.N.Y. 1990) (“[T]his is not a case where the school displays th e painting as part of a student art exhibit.”). In contrast, Holier Than Thouis obviously part of a larger exhibit.

-25- group of seventeen monuments and twenty-one histori cal markers “designed to illustrate the ideals of those who settled in Texas and those who have lived there since that time” (quotation omitted)); see also McCreary County , 2005 WL 1498988, at *17 (noting that the image on the Supre me Court’s courtroom frieze of Moses holding the Ten Commandments would not str ike an objective observer as taking a position on religion when accompanied b y images of seventeen other lawgivers); Brooklyn Inst. of Arts & Scis. v. City of New York, 64 F. Supp. 2d 184, 205 (E.D.N.Y. 1999) (“[N]o objective observer could conclude that the . . . showing of the work of an individual artist which i s viewed by some as sacrilegious constitutes endorsement of anti-religi ous views by the City or the Mayor.”). 5
In Bauchman , this court examined the question whether a school choir’s performance of songs with religious themes constituted a violation of the-26-

Establishment Clause. 132 F.3d at 546. The court considered the “traditional and ubiquitous presence of religious themes in vocal mu sic,” together with the inclusion of a variety of secular songs in the choi r’s repertoire, to conclude that a reasonable observer would not believe the school’s music selection constituted an endorsement of religion. Id. at 555. Like music, sculpture has traditionally involved works with religious themes. This fact, c ombined with the Campus Beautification Committee’s selection for the exhibi tion of four sculptures without obvious religious symbolism, would similarly lead the reasonable observer to conclude that the state did not intend to endorse aparticular religious message. See Rosenberger v. Rector & Visitors of Univ. of Va ., 515 U.S. 819, 839 (1995) (“[T]he guarantee of neutrality is respected, not o ffended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religiou s ones, are broad and diverse.”); Summum v. City of Ogden , 297 F.3d 995, 1011 (10th Cir. 2002) (“[A] reasonable observer would . . . note the fact that the lawn of the municipal building contains a diverse array of monuments, som e from a secular and some from a sectarian perspective.”). Furthermore, Holier Than Thouwas displayed in the context of a university campus, a place that is “peculiarly the marketplace of ideas.” Healy v. James , 408 U.S. 169, 180 (1972) (quotation omitted). In the university setting, “the State6 Appellants emphasize that public universities are n ot immune from

challenge under the Establishment Clause. This cou rt holds only that, in the context of an art exhibit on a university campus, t he display of this statue does not violate the Establishment Clause.
-27- acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic traditio n.” Rosenberger , 515 U.S. at 835. As the Supreme Court recognized in Rosenberger , purging religious or antireligious speech from a university setting would el iminate such speakers as Plato, Spinoza, Descartes, Karl Marx, Bertrand Russell, an d Jean-Paul Sartre from the curriculum. Id. at 836-37; see also Linnemeir v. Bd. of Trs. of Purdue Univ. , 260 F.3d 757, 759 (7th Cir. 2001). The Establishment C lause, however, does not compel the removal of religious themes from public education. Although the Court in School District of Abington Township v. Schempp held unconstitutional a state statute requiring daily Bible readings in pub lic schools, the Court noted it did not intend to “indicat[e] that such study of th e Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.” 3 74 U.S. 203, 225 (1963); see also Stone v. Graham , 449 U.S. 39, 42 (1980) (holding unconstitutional a state law requiring display of the Ten Commandments in pu blic school classrooms but noting that religious themes “may constitutionally be used in an appropriate study of history, civilization, ethics, comparative relig ion, or the like”). 6 Especially in the context of a university campus, no reasonable p erson would associate the-28-

message of Holier Than Thouwith the state. See Widmar v. Vincent , 454 U.S. 263, 274 n.14 (1981) (noting that, as young adults, university students are “less impressionable than younger students and should be able to appreciate that the University’s policy is one of neutrality toward rel igion”). The Seventh Circuit In Linnemeir v. Board of Trustees of Purdue Universityfaced a situation similar to the present case in e xamining the Establishment Clause effect of a student-directed p lay called Corpus Christiat Purdue University. 260 F.3d at 758. The play cont ained content the court concluded would shock and offend most believing Chr istians, including a depiction of Jesus Christ having sex with his disci ples. Id. The court nevertheless found no violation of the Establishment Clause, writing that “[t]he contention that the First Amendment forbids a state university to provide a venue for the expression of views antagonistic to convent ional Christian beliefs is absurd.” Id. at 759. As the court explained, “[i]f an Establis hment Clause violation arose each time a student believed that aschool practice either advanced or disapproved of a religion, school curricula woul d be reduced to the lowest common denominator, permitting each student to beco me a curriculum review committee unto himself.” Id. (quotation omitted). Appellants attempt to distinguish Linnemeiron the ground that the play in that case was produ ced and run by students for class credit. Merely because Holier Than Thouwas not7 There is evidence in the record that, while some vi ewers were offended by

Holier Than Thou , others did not perceive a phallic symbol or otheranti-Catholic message. The unusual seams on the statue’s miter h ave also plausibly been interpreted as a representation of two fish. The e ffect prong of the endorsement test, however, is a question of law that this courtdecides without reference to the reactions of individual viewers. Bauchman , 132 F.3d at 555.
-29- created for course credit, however, does not mean i t was not part of Washburn’s educational curriculum. Both President Farley and Washburn’s vice-president of academic affairs testified that they strove to exte nd the educational environment at Washburn beyond the classroom to encompass vario us stimuli including art, theater, music, debate, athletics, and other activi ties. Regardless of the context in which it is displayed, appellants argue that a reasonable observer would see the content of the st atue—a depiction of a bishop with a grotesque expression, a representation of a phallus on his head, and the title Holier Than Thou—as a state-sponsored anti-Catholic message. Washb urn counters that the statue’s message is not anti-Cath olic, but merely a representation of the artist’s humorous memories of his first conf ession. 7Ultimately, this court need not determine the proper interpretation of Holier Than Thou . Regardless of whether the statue sends an anti-Catholic message, any reasonable observer viewing it in context would understand the universi ty had not endorsed that message. Washburn therefore did not violate the Es tablishment Clause by including the sculpture in its art exhibition. See Lynch , 465 U.S. at 679-80 (holding that the district court’s consideration of a display’s religious content-30-

without reference to its context was in error); Anderson , 475 F.2d at 32 (“[T]he Government may depict objects with a spiritual cont ent, but it may not promote or give its stamp of approval to such spiritual conten t.” (quotation omitted)).
IV. CONCLUSION For the foregoing reasons, this court DISMISSES the claims for injunctive and declaratory relief for lack of jurisdiction and VACATES the judgment of the
district court as to those claims. This court AFFIRMS the judgment of the district court as to the claim for nominal damages.ATTACHMENT04-3103, O’Connor v. Washburn

TYMKOVICH , J., concurring.
I fully concur in the majority opinion. I write se parately to express my belief that our Circuit’s mootness jurisprudence sh ould be reexamined. In this case, we apply—as we must—two on-point Circuit case s in concluding the appeal is not moot. Searles v. Van Bebber , 251 F.3d 869, 878-79 (10th Cir. 2001); Utah Animal Rights Coalition v. Salt Lake City Corp. , 371 F.3d 1248, 1257-58 (10th Cir. 2004). But the conduct complained of here has long ceased: the statute has been removed; there is no threat of its return; no one is now being offended. Yet this appeal survives by virtue of a request for nom inal damages. In Utah Animal Rights Coalition , a panel of the Court debated this very question i n two compelling concurring opinions. See 371 F.3d at 1262-1271 (McConnell, J., concurring); 371 F.3d at 1271-1275 (Henry, J., conc urring,). I will not repeat those arguments here other than to suggest that fed eral court jurisdiction should not be exercised in a First Amendment case such as this one where the behavior of the litigants cannot be affected by our resoluti on of the appeal. I hope the United States Supreme Court or an en banc panel of this Court soon has the opportunity to address this important question.