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Published in Print: April 26, 2000, as Court Lets Stand Ruling Allowing School To Refuse Religious Ad

Court Lets Stand Ruling Allowing School To Refuse Religious Ad

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The U.S. Supreme Court declined last week to hear the appeal of a California man who was stymied in his efforts to post the Ten Commandments as an advertisement on the outfield fence of a high school baseball stadium.

In 1995, business executive Edward DiLoreto paid $400 to post the commandments next to ads from various local businesses on the baseball fence at Downey (Calif.) High School.

Mr. DiLoreto's proposed ad said: "For Peace in Our Day! Pause & Meditate on These Principles to Live By!" It then listed the Ten Commandments.

The Downey Unified School District, which is near Los Angeles, rejected the advertisement, citing a potential violation of the federal and state constitutional prohibitions against government establishment of religion, as well as a fear of controversy and litigation over the ad and other religious or political messages that others might seek to display.

Mr. DiLoreto sued the 19,000-student district in the state courts, which held that the state constitution barred the display of the Ten Commandments. The district moved part of the case to the federal courts, where both the U.S. District Court and the U.S. Court of Appeals for the 9th Circuit ruled against Mr. DiLoreto.

The 9th Circuit court, based in San Francisco, ruled last year that the district had created a "limited" public forum by accepting advertising on the high school baseball fence.

"The intent of the school in opening the fence to advertising was to raise funds, not to create a forum for unlimited public expression," the court said, noting that the district had also rejected advertisements for alcoholic beverages and Planned Parenthood.

The court said the case could be distinguished from several federal court rulings involving transit agencies that were required to accept bus and subway advertisements on controversial topics such as abortion because the agencies had a long tradition of displaying issues ads.

The Supreme Court on April 17 rejected without comment the appeal of that ruling in DiLoreto v. Board of Education of the Downey Unified School District (Case No. 99-1345).

Disability Discrimination

In separate action last week, the justices accepted for review next term a case that will determine whether states have immunity from lawsuits under the federal Americans with Disabilities Act of 1990.

The high court had planned to hear arguments this month in two cases raising that question, but the cases were settled after the court granted review earlier this year.

The new case, University of Alabama at Birmingham v. Garrett (No. 99-1240), stems from lawsuits against the state by a university-hospital employee and a state youth-correctional officer alleging discrimination based on disability in violation of the ADA.

The U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled that Congress removed the states' 11th Amendment immunity from lawsuits under the ADA. The high court has issued several rulings in recent years that have limited the power of Congress to remove the states' immunity from private lawsuits.

School law experts are watching the high court's 11th Amendment immunity cases with interest because in at least two states, California and Maryland, school districts are considered arms of the state for immunity purposes. ("Tug of War Over States' Powers Has Lawyers Watching Closely," Feb. 23, 2000.)

Vol. 19, Issue 33, Page 34

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