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U.S. court revives Ten Commandments monument lawsuit against NK-A School District

| Tuesday, Aug. 9, 2016, 3:15 p.m.
The Ten Commandments monument stands outside the gymnasium entrance at Valley Junior-Senior High School in New Kensington.
Eric Felack | Tribune-Review
The Ten Commandments monument stands outside the gymnasium entrance at Valley Junior-Senior High School in New Kensington.
Marie Schaub sued to have the Ten Commandments monument at Valley Junior-Senior High School removed.
Courtesy of the Freedom From Religion Foundation
Marie Schaub sued to have the Ten Commandments monument at Valley Junior-Senior High School removed.

A federal appellate court reinstated a New Kensington-Arnold School District parent's lawsuit over a Ten Commandments monument in front of Valley Junior-Senior High School.

The U.S. Third Circuit Court of Appeals on Tuesday ruled parent Marie Schaub has standing to challenge whether the 60-year-old monument on public school grounds violates the constitutional demands for separation of church and state.

The appellate court ruled U.S. District Judge Terrence F. McVerry erred last summer when he dismissed the case because Schaub had only infrequent contact with the monument.

“A community member like Schaub may establish standing by showing direct, unwelcome contact with the allegedly offending object or event, regardless of whether such contact is infrequent or she does not alter her behavior to avoid it,” wrote Third Circuit Judge Patty Shwartz on behalf of the three-judge panel that heard the case in May.

“We are obviously very pleased the Court of Appeals has reversed the lower court's ruling on standing and we're looking forward to having our case heard on its merits,” Schaub wrote in an email to the Tribune-Review. “We are prepared to take this case to the (U.S. Supreme Court) and urge the District to relocate this religious monument to an appropriate location to save the taxpayers from wasting any more money on this unconstitutional endorsement of religion.”

New Kensington-Arnold Superintendent John Pallone did not respond to a request for comment Tuesday afternoon.

The district can request that the case be reheard by the full Third Circuit Court.

Only Schaub's standing was reinstated. The Third Circuit panel agreed with McVerry that Schaub's teenage daughter, identified only as Doe 1 in court proceedings, did not provide evidence that she was harmed by the monument at the time the lawsuit was filed in September 2012.

“In fact, it is not clear from the record that Doe 1 ever read or understood the monument until after the suit was filed,” Shwartz wrote.

Schaub has said she transferred her daughter to another school district to avoid her coming into contact with the monument when she began high school.

In addition to sending Schaub's case back to McVerry's courtroom, the Third Circuit remanded for further consideration whether Schaub was a member of the Wisconsin-based Freedom From Religion Foundation when the lawsuit was filed, which likely would give the organization standing in the case.

In addition to the foundation, six national organizations that have a history of involvement in cases alleging violations of the constitutional prohibition on government endorsement of religion filed court documents in support of Schaub's case in December.

They include Americans United for Separation of Church and State, the Anti-Defamation League, the Central Conference of American Rabbis, the Jewish Social Policy Action Network, The Sikh Coalition and the Union for Reform Judaism.

“We're delighted that reason — and the Constitution — have prevailed, and look forward to winning this case at the district level as we won the Connellsville case,” FFRF Co-President Annie Laurie Gaylor wrote in a statement.

A month after McVerry ruled against Schaub last summer, he ruled a similar Ten Commandments monument on Connellsville Area School District property was unconstitutional.

Although McVerry did not order the removal of the monument because the student who triggered the case no longer attended the school, the district opted to remove the monument rather than face the risk of more legal battles. The monument was moved to church property bordering a Connellsville school in October.

Both monuments were donated to the school districts by the Fraternal Order of Eagles in the 1950s, part of a nationwide movement in response to the 1956 release of the movie “The Ten Commandments.”

The circumstances of the donation and the Decalogue's presence at Valley for more than 50 years have been cited by the district as evidence that the monument has an historic and secular purpose, not a purely religious one.

Liz Hayes is a Tribune-Review staff writer. Reach her at lhayes@tribweb.com or 724-226-4680.

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