New Kensington-Arnold responds to Ten Commandments monument lawsuit

Liz Hayes
| Monday, Nov. 19, 2012, 4:27 p.m.

New Kensington-Arnold School District has asked a federal court judge to dismiss the legal challenge against the Ten Commandments monument displayed at Valley High School.

Anthony G. Sanchez and Amie A. Thompson, attorneys who represent the district's insurance company, on Friday asked for the dismissal of the lawsuit filed in September by the Freedom From Religion Foundation and two district families.

The attorneys claim the plaintiffs failed to demonstrate that the monument violates the First Amendment's prohibition against government establishing a religion — also known as the Establishment Clause.

The district's 28-page brief frequently references the 2005 U.S. Supreme Court case Van Orden versus Perry, in which the display of a monument nearly identical to the New Kensington Decalogue on the grounds of the Texas State Capitol building was found to be constitutional.

“Like the Ten Commandments in Van Orden, the longstanding Eagles' Ten Commandments monument in this case makes passive and permissible use of the text to acknowledge, in part, the role of religion in our Nation's heritage,” New Kensington-Arnold's attorneys wrote. “As the Supreme Court recognized, similar references to and representations of the Ten Commandments on government property are replete throughout our country.”

They note government buildings including the Library of Congress, the U.S. Supreme Court's courtroom, the Department of Justice and the U.S. House of Representatives include similar displays.

The brief also references several court cases in which the recognition of religion has been permitted in public schools, though none directly relate to the display of the Ten Commandments.

Sanchez and Thompson write that the monument's presence at Valley High School for the past 50 years with no complaints until now; the Eagles' intent to “ ‘inspire the youth' and curb juvenile delinquency by providing children with a ‘code of conduct' ” when the organization donated the monument to the district in the late 1950s; and the inclusion of an American flag and bald eagle on the monolith provide a secular and historical justification for the display.

“The monument conveys a historical and moral message, not a promotion of religious faith. Perhaps that is why, for five decades, no person has challenged the monument as an unconstitutional endorsement of religion,” the attorneys wrote.

In acknowledging two cases in which the incursion of religion in schools has been ruled unconstitutional, Sanchez and Thompson wrote that the New Kensington case has different circumstances.

In Lee versus Weisman in 1992, the Supreme Court ruled the recitation of prayer during high school graduation was a violation of the First Amendment because those attending were coerced to join in the prayer regardless of their personal beliefs.

In the 1980 Stone versus Graham case, the court prevented Kentucky from requiring the Ten Commandments to be posted in all public classrooms because it found no secular purpose to the display.

The Freedom From Religion Foundation's lawsuit against New Kensington-Arnold references the Stone case in its claims that the Valley High School display violates the Establishment Clause by coercing two students “to adopt the District's favored religious views.”

The school district's attorneys said New Kensington's display should be treated differently than those in the Stone case because it is a passive display outside the building, not inside classrooms where students would be “encouraged ... to meditate upon the Ten Commandments during the school day.”

The district's attorneys indicate the Van Orden case alone should be enough to warrant the dismissal of the New Kensington case.

But even if the court does not agree, the attorneys claim the circumstances of the Valley High School display do not pass the legal coercion or endorsement tests used to prove a violation of the Establishment Clause.

Finally, the district's attorneys ask the court to strike from the lawsuit the plaintiffs' mention of school board President Bob Pallone's comments supporting the monument on a Facebook page, “Keep the Ten Commandments at Valley High School.”

The page, which has been “liked” by about 1,200 people including several school board members, was created last spring by New Kensington Controller John Zavadak. Pallone previously had posted comments indicating the district would fight the demand to remove the monument; his comments since have been removed from the site.

The district's attorneys said Pallone's comments are not representative of the school board and are immaterial to the lawsuit.

Marcus Schneider, the attorney representing the Freedom From Religion Foundation and the four other plaintiffs, said he has not had time to thoroughly review the district's filing but was not caught off-guard by any of its claims.

“It's not altogether surprising, the arguments they're making,” he said, although he would have expected some of the more detailed legal arguments later in the case.

“The arguments are ones we would've been expected,” he said. “Certainly, we haven't seen anything that changes our view of the case.”

U.S. District Judge Terrence F. McVerry set Dec. 10 as Schneider's deadline to respond to the district's request for dismissal.

Liz Hayes is a staff writer for Trib Total Media. She can be reached at 724-226-4680 or

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