Appeals Court Revives Suit Challenging Ten Commandments at Pa. High School

By Mark Walsh — August 10, 2016 2 min read
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A federal appeals court has revived a lawsuit challenging a 60-year-old monument displaying the Ten Commandments at a Pennsylvania high school.

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled unanimously to restore the suit brought by a mother and daughter against the New Kensington-Arnold school district near Pittsburgh.

The suit by Marie Schaub for herself and on behalf of her daughter (identified only as Doe 1) and backed by the Madison, Wis.-based Freedom From Religion Foundation, challenges the Ten Commandment monument installed in 1956 at Valley High School in New Kensington, Pa.

The school’s Ten Commandments monument was donated by the Fraternal Order of Eagles, part of a campaign to place such nearly 200 such granite memorials at public parks, municipal buildings, and schools across the country. (The fraternal organization was encouraged by Cecil B. DeMille, the director of the film “The Ten Commandments,” which came out in 1956.)

The lawsuit challenged the presence of the Ten Commandments monument as an unconstitutional government establishment of religion.

The U.S. Supreme Court ruled in an unsigned 1980 decision in Stone v. Graham that a Kentucky statute requiring the posting of the Ten Commandments on the walls of public school classrooms violated the establishment clause.

More recently, in 2005, the high court upheld an injunction barring Ten Commandments displays at two county courthouses but also upheld the display of a monument on the grounds of the Texas state capitol that had been donated by the Fraternal Order of Eagles.

The case involving Valley High School has, so far, been decided on dry legal grounds such as standing and mootness.

A federal district court said Schaub and her daughter had not come into enough contact with the monument to have suffered enough of a legal injury to have standing to challenge it under the establishment clause. Schaub’s daughter was a middle school student at the time the lawsuit was filed, and she had encountered the monument several times when she attended events at the high school. The mother said she would face seeing it daily when she started driving her daughter to the high school.

In its Aug. 9 decision in Freedom From Religion Foundation v. New Kensington-Arnold School District, the 3rd Circuit court held that the mother had standing to challenge the monument.

“A community member should not be forced to forgo a government service to preserve his or her ability to challenge an allegedly unconstitutional religious display or activity,” the appeals court said. “Schaub’s allegations that the monument signals that she is an outsider because she does not follow the particular religion or god that the monument endorses, and that her ‘stomach turned’ when she encountered it are sufficient to demonstrate that her contact with the monument was unwelcome. Thus, Schaub has standing to pursue a nominal damages claim.”

The court said the daughter lacked standing because evidence suggested she had been too young to fully understand the monument as a younger student who occasionally visited the high school. Schaub has declined to enroll her daughter at Valley High unless the monument is removed.

Now that the lawsuit is revived and sent back to the district court, removal of the Ten Commandments monument is a possibility.

A version of this news article first appeared in The School Law Blog.