A portrait of Jesus Christ that has been hanging in an Ohio public middle school since the 1940s is once again garnering national headlines. The school district reportedly moved the portrait earlier this week from the middle school to a local high school.

A lawsuit filed early this year against the school district by three anonymous students alleges that the portrait of Jesus was a gift to the school by a Christian student club and is therefore the school’s speech. Because it is religious in nature and there is no secular purpose for hanging the picture, the lawsuit argues that hanging it in the school violates the First Amendment’s prohibition against establishment of religion. In February, the school board voted to allow the picture to remain despite the lawsuit, saying that the portrait is not owned by the school but rather belongs to a Christian student club. The recent move of the portrait to a new school purportedly was a decision of the student club, not the school. The school suggested that removing the portrait would violate the First Amendment rights of the students in the Christian club. Which side is right?

There is not an easy answer, as is often the case with religious school speech questions. A first important consideration will be the context in which the portrait is hung. As the ACLU’s initial letter to the Ohio school district explained, courts are generally skeptical of religious displays, including religious works of art, that appear to be government sponsored unless there is a clear secular purpose behind the display. Examples of secular displays might include a display that includes art work from a number of different religions in an effort to teach students about the impact of religion on art or a display in which students are allowed to hang photographs of their choice and a student submits a religious photograph for the display. In contrast, courts have held particular works of art to violate the Establishment Clause where they are relatively isolated from other government-sponsored displays. The ACLU’s letter alleged that the Jesus portrait at issue here was not in a larger display of “world-renowned historical or religious figures,” and rather was hung in the middle school near portraits of alumni of the school. If those facts are true, and if the move to the high school did not remedy the problem, a court would be much more likely to find the portrait to be unconstitutional.

A second issue that will be considered is whether the portrait really was a gift by a student club to the school district or, as the school now maintains, the student club retained ownership and control over the portrait for the past 65 years. In a 1994 case from the Sixth Circuit—the highest appellate court with jurisdiction over Ohio as well as Michigan, Kentucky and Tennessee—the court held that a nearly identical portrait of Jesus that had been donated to the school was unconstitutional because it was neither part of a group of paintings nor used in conjunction with any class or educational program. Washegesic v. Bloomingdale Public Schools, 33 F.3d 679, 681 (6th Cir. 1994). Under that precedent, if the Jesus portrait at issue here truly has been under the control of the school for decades, the portrait may be unconstitutional. A more difficult question exists, however, if the portrait is seen to be the speech of the Christian club. If so, the court will likely consider whether the school district has truly opened up a forum for all organizations and clubs to hang similar works of art or materials relevant to their missions, or if the claim that such a forum exists is pretense for supporting just this specific Christian speech.

In light of the school district’s decisions to allow the portrait to remain and to move the portrait to another public school in the district, it seems likely that litigation on this issue will continue. The case is an important reminder to schools that care should be taken with respect to religious displays in schools. Although such displays are permissible, and may, depending on the context, even be required, schools should be confident that such displays do not constitute an unconstitutional establishment of religion before allowing them.