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Judge lets New Kensington Ten Commandments monument stand

| Tuesday, July 28, 2015, 1:41 a.m.
Eric Felack | Tribune-Review
The Ten Commandments monument stands outside the gymnasium entrance at Valley Junior-Senior High School in New Kensington.
Eric Felack | Trib Total Media
The Ten Commandments monument stands outside the gymnasium entrance at Valley High School in New Kensington.

A federal judge on Monday dismissed a lawsuit challenging the constitutionality of the Ten Commandments monument in front of Valley Junior-Senior High School in New Kensington.

The ruling could bring an end to a three-year legal battle.

However, it does not address the underlying question of whether the monument is a prohibited government endorsement of religion or a permissible historical landmark.

U.S. District Judge Terrence F. McVerry accepted New Kensington-Arnold School District's argument that resident Marie Schaub, her daughter, and the Wisconsin-based Freedom From Religion Foundation have not proven they have been sufficiently harmed by the monument to have standing in the case.

“Plaintiffs Schaub and (her unidentified daughter) … have failed to establish that they were forced to come into ‘direct, regular, and unwelcome contact with the' Ten Commandments monument on the grounds of Valley High School,” McVerry wrote in his opinion.

Drawing from Schaub's and her daughter's depositions, McVerry pointed to Schaub's testimony that she could only recount two or three times when she'd seen the monument — perhaps twice while dropping off her sister when Schaub never left her car, and once in 2007 or 2008 when Schaub's daughter attended a karate event at the school.

Furthermore, McVerry wrote that Schaub's sense of “offense” over the monument “seems to have manifested itself only after FFRF became involved in this dispute.”

The organization that promotes the separation of church and state sent the district a letter in March 2012 asking for the monument's removal. When the district refused, the lawsuit was filed in September 2012.

Another district parent and child, neither of whom were identified in court documents other than as being relatives of Schaub, originally joined her as plaintiffs in the case but since have been removed at their request.

As for Schaub's daughter, who is identified in court documents as Doe 1, McVerry said her “alleged injury is even more tenuous” because she never attended the high school to regularly pass the monument and, in her testimony, she said she did not pay much attention to the Decalogue when she did encounter it.

Although Schaub testified she pulled her daughter from the New Kensington-Arnold School District to avoid contact with the monument, McVerry said that action occurred after the lawsuit was filed. Therefore, it doesn't factor into the determination of having legal standing.

Reaction to ruling

District Superintendent John Pallone said he's pleased with the potential end to a lawsuit that distracted from the district's mission.

“We're pleased with the decision by the court,” Pallone said. “We're glad to see this issue is hopefully behind us, and we can move on with our mission of educating children.”

Pallone acknowledged the case could be appealed or filed again since the core legal question of the monument's constitutionality hasn't been addressed.

“That's always a risk when a case is dismissed on summary judgment based on procedural issues,” he said. “We have no control over that. We have no recourse but to be happy with what we've got.”

In an email to the Valley News Dispatch, Schaub wrote, “I haven't had a chance to review the judge's opinion, but my attorneys and I are already considering an appeal.

“Regardless, I hope that the Connellsville case is resolved favorably and convinces (New Kensington-Arnold) into relocating this religious monument. If not, I'm sure they'll have a similar case in the near future. It's not over yet.”

Schaub was referring to a companion case that Freedom From Religion Foundation filed against Connellsville Area School District, which still is pending before McVerry.

The Freedom From Religion Foundation left open the possibility of an appeal in the New Kensington-Arnold case.

“We are disappointed with the mistaken ruling and will discuss an appeal with our attorneys,” Dan Barker, co-president of FFRF, said in a written statement. “It is troubling that judges are closing the courthouse door on plaintiffs who simply want government actors to abide by the Constitution.”

Barker noted the ongoing case regarding the Connellsville Area School District.

Both districts have on school property large stone Ten Commandments tablets donated by the Fraternal Order of Eagles in the late 1950s. In Valley Junior-Senior High School's case, the monument was believed to have been donated in 1957 by the Eagles' New Kensington chapter.

The Eagles donated similar monuments across the country in response to the 1956 release of the movie, “The Ten Commandments.”

The circumstances of the donation and the monolith's presence at Valley Junior-Senior High School for more than 50 years supported the district's argument that the monument has an historic and secular purpose.

The plaintiffs argued the monument's presence on public school grounds amounted to government endorsement of a particular religion and violated the Constitution's First Amendment guarantee of freedom of religion.

Liz Hayes is a staff writer for Trib Total Media.

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