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Published in Print: February 18, 2004, as Law Update

Law Update

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Ohio District Must Remove Commandments From Display

A rural Ohio school district and a group of ministers have asked a federal appeals court for further review of a court order that led to the removal of Ten Commandments monuments from the grounds of four public high schools.

The Adams County/Ohio Valley district had erected the stone monuments in 1997 after they were donated by a local group of Christian clergy members. A resident represented by the state chapter of the American Civil Liberties Union challenged the displays as a violation of the U.S. Constitution's prohibition of a government-established religion, and last spring the tablets were taken down.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit held unanimously Jan. 12 that a lower-court judge was right when he ruled that the display should be removed because it failed to meet a three- pronged legal test for justifying the mingling of church and state. Late last month, the 5,100-student district and four local ministers who intervened in the case on the district's side asked the full 6th Circuit court, in Cincinnati, to rehear the case.

"We've seen a lot more problems in the schools, and we just really think that the Ten Commandments are good guidelines," said the Rev. Kenneth W. Johnson, one of the ministers.

After the district was sued, the school board decided to supplement the Ten Commandments monuments by installing other tablets near them featuring excerpts of historical documents. Titled "Foundations of American Law and Government," the displays included passages from the Justinian Code of Roman law, the preamble to the Constitution, the Declaration of Independence, and the Magna Carta.

The district also decided to add plaques explaining each of the monuments. One beneath a Ten Commandments monument stated that the biblical do's and don'ts "have profoundly influenced the formation of Western legal thought and the formation of our country," according to court papers. The plaque went on to discuss the tradition of "ethical monotheism" and to explain that the "Commandments remind us of our obligation to one another and to the Creator."

In its decision last month, the 6th Circuit panel held that the school board had failed to show that it had a legitimate secular purpose for its displays. In fact, the court held, "the opposite" was implied by the fact that the monuments were "donated by the Adams County Ministerial Association, a Christian religious organization that also agreed to indemnify the board for any litigation expenses."

The judges also concluded that "the purported secular justification was belatedly adopted solely to avoid establishment clause liability."

A spokesman for the district said officials would not comment on the ongoing legal dispute.

Age Discrimination

A Pennsylvania school district will have to pay nearly $350,000 in damages to a plumber who sued for age discrimination after officials passed him over in favor of a younger candidate for a teaching job at a vocational high school, a federal appeals court has ruled.

A jury found in 2002 that the Hazleton Area district had violated the federal Age Discrimination in Employment Act when it declined to hire Michael D. Potence, who was 51 when he applied in 1998 to be an instructor in plumbing, heating, ventilation, and air conditioning. Mr. Potence presented evidence that the then-superintendent had directed that the district hire "no more old plumbers" because "the old plumbers cannot pass the certification test," court papers show.

The U.S. District Court judge in Scranton, Pa., who presided over the trial found that the district had acted deliberately, and thus was liable for double damages under the age-discrimination law. That brought the judgment against the 9,400- student system to $344,500.

The district appealed the ruling, arguing among other claims that it could not be forced to pay damages that were effectively punitive. But on Feb. 2, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, unanimously affirmed the decision.

Among the points working against the district, the appellate panel found, was that district officials had given inconsistent reasons for passing over Mr. Potence in favor of a younger candidate.

For example, the district contended at one point that the plumber was unqualified for the job because he lacked certification in handling refrigerants. Mr. Potence argued that the district had not specified such expertise as a job qualification and cited it solely as a pretext for not hiring him. The appeals panel held that it was reasonable for a jury to reach the same conclusion.

After-School Violence

A federal appeals court has let a Mississippi school district off the hook in a lawsuit brought by a mother who says her son's eye was intentionally gouged by another player on his high school football team who had insulted him with racial epithets.

After the incident during a football drill in September 1999, Eve Priester sued the Lowndes County school district and its superintendent, as well as coaches and the principal at her son's high school.

Ms. Priester contended that the coaches had encouraged the attack by a white teammate by openly berating her son with epithets related to his being African-American and overweight. She also faulted district administrators for failing to protect her son, not acting on prior complaints she had lodged about racial harassment, and refusing to pay for the boy's medical expenses related to his permanent eye injury.

A U.S. District Court judge in Aberdeen, Miss., granted a summary judgment in the district's favor in August 2002, finding that Ms. Priester had failed to show that the district or its officials should be held liable under a range of federal and state claims. In a unanimous ruling handed down last month, a three-judge panel of the Atlanta-based U.S. Court of Appeals for the 5th Circuit agreed.

No evidence suggested that district officials had participated in a conspiracy to harm the boy, as his mother needed to show to prove one of her central claims under federal law, the panel found. Likewise, Ms. Priester's "claim that lack of supervision during football practice is gross negligence" did not hold water, the court found.

Only in certain limited circumstances can public entities be held liable for failing to protect individuals from private violence, and those exceptions did not apply in this case, in part because the attack happened after regular school hours, the appellate panel said.

"High school football practice is a voluntary extracurricular activity, and thus, Priester cannot claim that her son was in anyways compelled by the school to participate," the Jan. 7 decision states.

The court also concluded that Ms. Priester had failed to show that school officials had a genuine "racial animus" against her son, and that alleging the use of racial epithets by a coach was insufficient to show that the boy's constitutional rights were infringed.

Mike Halford, who was the principal of New Hope High School when the incident occurred and is now the superintendent of the 5,200-student district, said he was "just tickled to death" about the ruling. Attempts to reach Ms. Priester were unsuccessful.

—Caroline Hendrie

Vol. 23, Issue 23, Page 24

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