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Published in Print: November 27, 2002, as Law Update

Law Update

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Bad Week for Moses: Commandments Must Go

Thou shalt move the Ten Commandments, two federal courts ruled last week.

One ruling was front-page news and involved the stone monument installed at Alabama's state supreme court building by state Chief Justice Roy Moore. A federal district judge ruled that the display is an unconstitutional government establishment of religion.

The second case involves stone monuments outside the four high schools in the 5,000-student Adams County/Ohio Valley school district in Ohio. A federal appeals court held that the displays are likely unconstitutional, and that school officials must comply with a federal district court's order to remove the monuments pending a further appeal.

The two cases are not necessarily unrelated. A recent round of efforts to install Ten Commandments displays in public schools, courthouses, and other government buildings was inspired by Justice Moore's actions. In the mid-1990s, when he was an Alabama trial judge, he refused to remove a small wooden Ten Commandments plaque from his courtroom. The judge became a hero to many religious conservatives, in particular, and the issue helped him win election as chief justice in 2000.

In August of last year, Chief Justice Moore, with some help, spirited the 5,280-pound Ten Commandments monument into the court building one night without telling his fellow justices. The monument's location was challenged in court, and on Nov. 18, U.S. District Judge Myron H. Thompson of Montgomery ruled that it was "nothing less than an obtrusive year-round religious display intendent to proselytize on behalf of a particular religion, the chief justice's religion."

Lawyers for Chief Justice Moore say the ruling will be appealed.

The Ohio case involves Ten Commandments displays mounted in 1997 outside the four high schools in Adams County. The monuments were donated by local ministers, and they were initially displayed by themselves. After the filing of a lawsuit backed by the American Civil Liberties Union, district officials added displays of such secular documents such as the Bill of Rights and the Magna Carta.

In a 1980 decision called Stone v. Graham, the U.S. Supreme Court struck down a Kentucky law requiring posting of the Ten Commandments on school walls. But some legal experts contend that displays of the commandments along with secular documents would be constitutional.

A federal magistrate judge in Cincinnati ruled against the Adams County monuments, even after the addition of the other historical works.

The school district asked a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, for a stay that would allow the monuments to remain at the high schools pending an appeal. In a Nov. 19 decision, the panel ruled 2-1 against such a stay.

The panel's majority said that the lower-court ruling "raises at least serious appellate issues," but that there would be no irreparable harm in removing the monuments. It also rejected a request to cover up the monuments rather than move them while the appeal is pending.

Writing in dissent, U.S. Circuit Judge Cornelia G. Kennedy said she would allow the district to cover up the display, and she suggested that inclusion of the other documents would probably be sufficient to allow inclusion of the Ten Commandments monuments on school grounds.

Student Search

A search of a student for a knife by a school-liaison police officer did not violate the Fourth Amendment, a federal appeals court has ruled.

Jason Shade was a 17-year-old student at the Apple Valley Alternative Learning Center in Minnesota's 28,100-student Rosemount-Apple Valley-Eagan school district in 1999 when he went on a field trip to a local auto-body shop. The bus stopped at a fast-food restaurant, and Mr. Shade brought an orange-juice container back on to the bus. He asked if anyone had something to help open it, and another student gave him a folding knife.

A teacher driving the bus saw Mr. Shade with the knife and alerted school administrators. They went to the auto shop with police liaison officers to search for the knife before the students returned to school. They informed the students that each would be searched unless someone stepped forward with the knife.

The second student turned the knife over. The police searched the students anyway. On Mr. Shade, they found a collapsible police tactical baton, and he was charged with possession of a weapon on school property.

Mr. Shade sued the city of Farmington, Minn., and one of the police liaison officers, claiming the search was unreasonable under the Fourth Amendment. A federal district court ruled against Mr. Shade, and in a Nov. 6 ruling, a panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, upheld the district court.

The panel ruled 2-1 that because the investigation was initiated by the school, the officer need only meet the Supreme Court's test that school searches be reasonable, not based on probable cause.

"A contrary conclusion might serve to encourage teachers and school officials, who generally are untrained in proper pat-down procedures or in neutralizing dangerous weapons, to conduct a search ... without the assistance of a school liaison officer," the majority said.

—Mark Walsh

Vol. 22, Issue 13, Page 12

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