December 15, 2009

Jerry Prater Rachel Wolf

Chair, Board of Trustees, District #3 Dean of Arts, Language, & Literature
Dallas County Community College District Eastfield College
1601 S. Lamar St. 3737 Motley Drive
Dallas, TX 75215 Mesquite, Texas 75150
214-378-1602 Office G138
Fax: 214-378-1610 972-860-7124
via certified mail RRR and fax Fax: (972) 860-7248
RWolf@dcccd.edu
Via certified mail RRR, fax, and email

Diana Flores Martha Sanchez Metzger

Vice Chair, Board of Trustees, District #6 Trustee, District #4
via certified mail RRR and fax via certified mail RRR and fax

Kitty Boyle Charletta Compton

Trustee, District #5 Trustee, District #7
via certified mail RRR and fax via certified mail RRR and fax

Bob Ferguson JL Sonny Williams

Trustee, District #2 Trustee, District #1
via certified mail RRR and fax via certified mail RRR and fax

James Watral Chris Blackhurst

Ceramics Department Chair Ceramics Instructor
Eastfield College Eastfield College
James_Watral@dcccd.edu bhcArt@dcccd.edu
Via certified mail RRR, fax, and email Via certified mail RRR, fax, and email

Dear Ms. Wolf, Mr. Watral, Ms. Blackhurst, and Trustees,

7KH/LEHUW\/HJDO,QVWLWXWHKDVEHHQUHWDLQHGE\-RKQ-³-RH´0LWFKHOOLQFRQQHFWLRQ

with Eastfield Community CollHJH¶V ³(DVWILHOG´ XQFRQVWLWXWLRQDOVXSSUHVVLRQRI0U0LWFKHOO¶V
right to religious expression. This letter is written to inform you of the relevant law so that
Eastfield and the Dallas County Community College District can take the necessary steps to
avoid litigation. This letter also serves as the written notice required by the Texas Religious
)UHHGRP5HVWRUDWLRQ$FW³75)5$´TEX. CIV. PRAC. & REM. CODE. ANN. § 110.006. Please
direct any further communications regarding this matter to Liberty Legal Institute.

F A C TS

E astfield College Forbids M r. M itchell from Constructing C eramic C rosses

Joe Mitchell is a 69 year-old retired General Motors employee, and resident of Dallas
County. In 2006, he enrolled in a non-credit ceramics course at Eastfield Community College
mainly comprised of retired citizens from the community. For three years, Mr. Mitchell took
ceramics courses at Eastfield and constructed ceramics pieces that were not religious in nature,
such as wine chillers, and did not encounter any problems.

On the first day of the spring 2009 ceramics class, James Watral, the Chair of the
Ceramics Department at Eastfield College, filled in for the regular ceramics instructor, Leslie
Bruce, who was unable to attend the first class. As Mr. Watral was giving the students a tour of
the pottery department, he took them to the shelving area where ceramics pieces are stored prior
to being fired in the kiln. Mr. Watral then pointed to a cross and stated in front of the entire class
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but only by hiding them behind other larger pieces of work so they would not be readily visible.
Mr. Mitchell would give the crosses as gifts to volunteers and parishioners at his local church, St.
Bernard of Clairvaux Catholic Church.

At the beginning of the 2009 summer session, however, a memo from Mr. Watral,
attached hereto as Exhibit A, was distributed to all ceramics students and instructors. It
prohibited inter alia the creaWLRQRIDQ\³UHOLJLRXVLWHPV´DQG³VHDVRQDOSLHFHV²Christmas,
(DVWHU9DOHQWLQHV+DOORZHHQRUQDPHQWVHWF´7KHPHPRVWDWHGWKDW³>W@KHPDNLQJRIVXFK
SLHFHVDW(DVWILHOG&ROOHJHGHPHDQVWKHJRDOVRIWKHFHUDPLFSURJUDPDW()&´0V%UXFHWKH
ceramics instructor, stated that the memo did not reflect her beliefs but that it was the policy of
Mr. Watral and the department. In response to the memo, Mr. Mitchell ceased constructing
religious items, but filed a complaint with the Arts Department, arguing that the memo
discriminated against people of faith.

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Literature at Eastfield College, set up a meeting with Mr. Mitchell and Mr. Watral. During the
meeting, Mr. Watral apologized for making the offensive remark about the cross. He also
presented a revised memo, attached hereto as Exhibit BWKDWSURKLELWHG³UHOLJLRXVLWHPVWKDWDUH
UHSOLFDV´DVRSSRVHGWRSURKLELWLQJDOO³UHOLJLRXVLWHPV´WKHQHZSROLF\VWLOOEDQQHGWhe
FUHDWLRQRIDOOVHDVRQDOSLHFHV7KHPHPRDOVRVWDWHGWKDW³ZRUNPXVWEHSUH-approved by your
LQVWUXFWRU´LILWIDOOVLQWRDFDWHJRU\RISURKLELWHGLWHPV0V:ROIVDLGWKDW0U0LWFKHOOZRXOG
have to submit a written proposal every time he wished to construct a cross or other religious
item. Mr. Mitchell brought a ceramic cross to the meeting as an example of the things he wished
to make; when Mr. Watral saw it, he physically recoiled in disgust, throwing his arms up into the
air.
 The day after the meeting, Ms. Wolf communicated to Mr. Mitchell that he could
SUREDEO\PDNHWZRWRWKUHHFURVVHVDZHHNEXWWROGKLPWRHQVXUHWKDWWKH\GRQ¶WORRN³FRRNLH-
FXWWHU´VRWKDW0U:DWUDOFRXOGQRWDUJXHWKDWLWYLRODWHVKLVSROLF\

After the meeting, Mr. Mitchell was concerned that crosses would still be prohibited
since all crosses could be considered replicas. Mr. Mitchell emailed Ms. Wolf on July 23, asking
her have the language removed that prohibits religious and seasonal items. Ms. Wolf did not
respond to his email.

When the fall 2009 session began, Mr. Mitchell twice asked the ceramics instructor,
Chris Blackhurst, if she had any handout from Mr. Watral specifying what items would be
permitted in the kiln. Ms. Blackhurst responded that she was unaware of any such handout.
When Mr. Mitchell said he would have to check with the administration concerning its policy,
she then pulled out a file folder with 25-30 copies of a revised policy, attached hereto as Exhibit
C. She stated that she was instructed not to distribute the new policy, but provided Mr. Mitchell
with a copy and pointed to a crowded bulletin board in the classroom that contained a posted
FRS\7KHQHZSROLF\SURKLELWHGDOO³V\PEROV´EXWQRORQJHUFRQWDLQHGDQ\UHIHUHQFHWR
religious or seasonal items. The new policy was neither mentioned nor discussed in class.

During the fall 2009 session, Ms. Blackhurst constantly asked Mr. Mitchell if his next
project would be religious. The class met once per week, and every week Ms. Blackhurst would
harass Mr. Mitchell about the subject of his projects. Mr. Mitchell tried to engage Ms. Blackhurst
in a discussion about how religion has historically held a prominent place in the arts; during this
discussion, he referenced the Latino Cultural CenteUWRZKLFK0V%ODFNKXUVWH[FODLPHG³WKDWLV
QRW)LQH$UW´

Mr. Mitchell felt like Ms. Blackhurst refused to assist him on his projects due to their
religious content. For example, when Mr. Mitchell asked Ms. Blackhurst to teach him how to
make a rose out of clay for a cross, she refused to assist him and stated that she did not know
how to make clay roses, despite the fact that she is an experienced artist. When Mr. Mitchell had
placed seven roses on a cross, Ms. Blackhurst questioned him on why he had chosen the number
seven. He responded that he had been taught that using an odd number of elements in visual arts
was more aesthetically pleasing than using even numbers. During a later class, Ms. Blackhurst
explained that she had inquired about the number of roses because if Mr. Mitchell had made
seven roses because of any symbolic meaning attached to the number seven, then the cross
would not be allowed in class and would not be fired in the kiln.

Mr. Mitchell also created a ceramic Israeli Coat of Arms, which includes a Menorah, a
symbol of Judaism, and olive branches, which represent peace. Mr. Mitchell created the Coat of
Arms to give to a Jewish friend who works with Catholic Ministries to help international
refugees who have been granted asylum in the United States. After the Coat of Arms had been
fired, Ms. Blackhurst asked Mr. Mitchell if she could take a look at it. She told Mr. Mitchell that
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Ms. Blackhurst then proceeded to state that if Mr. Mitchell felt the need to continue
making religious objects that he would need to buy his own kiln and work from home. She
stated that if he decided to enroll in a ceramics class next semester, he would not be allowed to
make any religious items. She then handed Mr. Mitchell two crosses that he had previously
made, but that had not yet been fired, declaring that the Ceramics department would not fire
them.

Ms. Blackhurst then asked Mr. Mitchell if he considered a swastika offensive. He

UHVSRQGHG³RIFRXUVH´6KHWKHQSURFHHGHGWRFRPSDUHWKHFURVVWRDVZDVWLND6KHVWDWHGWKDW
many individuals view the cross as an offensive symbol in the same way that many people are
offended by swastikas, and that his crosses would therefore not be fired by the department.

Mr. Mitchell has felt that Eastfield has singled him out as a person of faith, harassed, and
demeaned him because of his religious expression. He believes that college officials tried to
make him feel uncomfortable in his classes so he would not re-register.

E .D.1 was L ikewise Prohibited from M aking C eramic C rosses at E astfield College

Like Mr. Mitchell, E.D. took ceramics classes at Eastfield and was subjected to religious
discrimination. E.D. is a long time friend of Mr. Mitchell, and shared with him her experience at
Eastfield prior to his enrollment.

E.D. began taking ceramics courses at Eastfield around ten years ago, before Mr. Watral
joined the faculty; she made several religious pieces and was never told by any instructor that she
was prohibited from doing so. It was only when Mr. Watral joined the Ceramics department that
E.D. was first discouraged from making crosses and later completely prohibited from doing so.

After Mr. Watral¶VDUULYDODW(DVWILHOGWKHLQVWUXFWRUVEHJDQWRGLVFRXUDJH('IURP

FUHDWLQJFURVVHV6KHZDVWROGWR³H[SDQGKHUKRUL]RQV´DQGWRFUHDWHRWKHUWKLQJV+RZHYHU
another student only made coil pots and was never discouraged from making coil pots. E.D.
believes that no one else besides her was ever told not to make any particular item out of clay.
The class was structured in such a way where students were given much latitude and choice in
the objects they chose to construct. E.D. felt she was singled out due to the content of her work.

E.D was told that she was not allowed to make crosses; indeed, the adjunct professor
teaching the course told her that she could make anything but a cross. The instructor did not
appear to approve of the policy but seemed pressured to enforce it.

In response, E.D. contacted the division chair and wrote a letter to the president of the
college. The division chair appeared to support the decision of the department; she received no
response from the president, and instead received a refund for the course.

E.D. felt like the ceramics class provided her an important outlet for creative expression.
She was heavily involved in exploring the shape, design, and history of the cross, and found that
it appeared in several religions, including American Indian mythology. E.D. believed that the

                                                                                                               
1
,QRUGHUWRHQVXUH('¶VSULYDF\VKHZLOORQO\EHUHIHUUHGWRE\KHULQLWLDOV
FURVVV\PEROL]HVPDQNLQG¶VSXUVXLWRIDJUHDWHUJRRGDQGshe received much fulfillment from
exploring the cross through clay.

The hostility culminated when Mr. Watral phoned E.DDQGWROGKHUWR³SLFNXSKHUGDPQ

FURVVHV´IURPWKHVFKRROZKHQ('ZHQWWRUHWULHYHKHUFURVVHVWKH\ZHUHGHVWUR\HG('
believes that her crosses were tampered with using carbon, causing them to be destroyed in the
firing process.

E.D. went through a phase of depression that lasted around six months due to Eastfield
denying her a creative outlet of expression. She felt like Eastfield had discriminated against her
because she chose to create crosses; she felt too humiliated and embarrassed to seek help.

L E G A L A N A L YSIS

T H E F I RST A M E N D M E N T O F T H E U.S. C O NST I T U I O N

Eastfield has engaged in unconstitutional viewpoint discrimination in violation of the

United States Constitution2 by prohibiting its students from creating religious items in ceramics
classes.3 Since the arrival of Mr. Watral, Eastfield has enforced a policy prohibiting all religious
items, which was first unwritten and later memorialized in writing. Eastfield has continued to
HQIRUFHLWV³QRUHOLJLRXVLWHPV´SROLF\UHJDUGOHVVRIWhe official wording of the guidelines
distributed to students. The first two written policies (Exhibits A and BSURKLELWLQJ³UHOLJLRXV
LWHPV´DQG³UHOLJLRXVLWHPVWKDWDUHUHSOLFDV´DUHXQFRQVWLWXWLRQDORQWKHLUIDFHDVWKH\FHQVRU
religious viewpoints. The third written policy (Exhibit CSURKLELWLQJ³DOOV\PEROV´LV
unconstitutional content-based discrimination.

Such viewpoint- and content-based discrimination is a blatant violation of the First

$PHQGPHQW³>$@ERYHDOOHOVHWKH)LUVW$PHQGPHQWPeans that government has no power to
UHVWULFWH[SUHVVLRQEHFDXVHRILWVPHVVDJHLWVLGHDVLWVVXEMHFWPDWWHURULWVFRQWHQW´ Police
'HS¶WRI&KLFDJRY0RVOH\, 408 U.S. 92, 95 (1972) (striking down a city ordinance because it
unconstitutionally treated labor picketing differently than other picketing); Rosenberger v.
Rector & Visitors of the Univ. of Va.86³,WLVD[LRPDWLFWKDWWKH
government may not regulate speech based on its substantive content or the message it
FRQYH\V´ Eastfield has done exactly what the constitution forbids: forbid religious items and
symbols due to their content.

                                                                                                               
2
The First Amendment, as incorporated by the Fourteenth Amendment, forbids a government
entity, including a community college, IURP³SURKLELWLQJWKHIUHHH[HUFLVH´RIUHOLJLRQDQG
³DEULGJLQJWKHIUHHGRPRIVSHHFK´U.S. CONST. amend. I.
3
It has long been established that the free speech guarantees of the First Amendment likewise
apply to expressive conduct. E.g., Texas v. Johnson, 491 U.S. 397 (1989); Tinker v. Des Moines
Indep. C mty. Sch. Dist., 393 U.S. 503 (1969).
 Furthermore, the Supreme Court has specifically held that government officials may not
suppress or exclude the speech of private parties due to its religious perspective. Good News
Club v. Milford Cent. Sch. Dist., 533 U.S. 98 (2001); /DPE¶V&KDSHOY&WU0RULFKHV8QLRQ
F ree Sch. Dist., 508 U.S. 384 (1993); Widmar v. Vincent, 454 U.S. 263 (1981). The Supreme
&RXUWKHOGWKDW³2XUSUHFHGHnt establishes that private religious speech, far from being a First
Amendment orphan, is as fully protected under the Free Speech Clause as secular private
H[SUHVVLRQ´ Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).
Thus, the Constitution requires Eastfield to allow Mr. Mitchell to express his faith through the
items he creates in ceramics class.

T H E T E X AS R E L I G I O US F R E E D O M R EST O R A T I O N A C T

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necessary to achieve a compelling government interest and it is the least restrictive means of
furthering that interest. TEX. CIV. PRAC. & REM. CODE §§ 110.001(a)(2)(B), 1001.003(a). See
also Barr v. Sinton, 295 S.W.3d 287 (Tex. 2009).

When Eastfield prevents Mr. Mitchell from exploring his faith through artistic
H[SUHVVLRQLWLVVXEVWDQWLDOO\EXUGHQLQJWKHIUHHH[HUFLVHRIKLVUHOLJLRQ75)5$GHILQHV³Iree
H[HUFLVHRIUHOLJLRQ´DV³DQDFW«WKDWLVVXEVWDQWLDOO\PRWLYDWHGE\VLQFHUHUHOLJLRXVEHOLHIV´
TEX. CIV. PRAC. & REM. CODE § 110.001(a). When Mr. Mitchell allows his faith to influence his
artistic expression, it cultivates a deeper appreciation of both the arts and his Catholic faith.
Indeed, creating artistic crosses can be seen as an act of worship. Furthermore, Mr. Mitchell
gives his artistic pieces to newly converted Catholics and to volunteers at his church to
encourage them in their faith. In this way, these crosses are used to further the fellowship in his
church and allow him to exercise his religious beliefs.

6LQFH0U0LWFKHOOKDVGHPRQVWUDWHGWKDW(DVWILHOG¶VSROLF\SODFHVDVXEVWDQWLDOEXUGHQ
on the free exercise of his religion, Eastfield must prove that its policy prohibiting religious items
is necessary to further a compelling interest advanced by the least restrictive means. Id. at §
E&RXUWVKDYHKHOGWKDW³FRPSHOOLQJJRYHUQPHQWDOLQWHUHVWV´DUH³RQO\WKRVHLQWHUHVWV
RIWKHKLJKHVWRUGHUDQGWKRVHQRWRWKHUZLVHVHUYHG´Wisconsin v. Yoder , 406 U.S. 205, 215
(YHQXQGHQLDEO\LPSRUWDQWJRYHUQPHQWLQWHUHVWVVXFKDVWKHVWDWH¶VLQWHUHVWLQ
compulsory school attendance laws4 and uniform unemployment compensation systems5 are
insufficient to justify substantial burdens on religious freedom. It is hard to imagine any interest
that Eastfield has in preventing the creation of private religious expression through the arts,
much less a compelling one. Furthermore, Eastfield must also show that its policy prohibiting
UHOLJLRXVLWHPVLVDOVRWKH³OHDVWUHVWULFWLYHPHDQV´RIIXUWKHULQJDQ\DOOHJHG³FRPSHOOLQJ
JRYHUQPHQWDOLQWHUHVW´%HFDXVHLWFDQQRW(DVWILHOGPXVWDOORZ0U0LWFKHOOWRPDNHKLV
ceramic crosses.

                                                                                                               
4
Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
5
Sherbert v. Verner, 374 U.S. 398, 407 (1963).
 DE M AND

Eastfield must cease to suppress the religious expression of its students. Please advise
Liberty Legal Institute in writing by T hursday, January 23, 2010 that Mr. Mitchell and other
students will be allowed to freely express their faith through the construction of religious items
in art courses at Eastfield. Unless we hear from you by this date, we will seek redress in federal
FRXUWDQGVHHNWKHUHFRYHU\RIDWWRUQH\¶VIHHVFRXUWFRVWVDQGRWKHUUHDVRQDEOHH[SHQVHV
incurred in bringing the action.

Sincerely,

Hiram S. Sasser, III

Director of Litigation

Roger L. Byron
Erin Leu
Attorneys

LIBERTY LEGAL INSTITUTE

Exhibit A

 
Exhibit B

 
Exhibit C