Pennsylvania federal district court allows suit over Ten Commandments display on school property to proceed

Freedom From Religion Foundation v. New Kensington-Arnold Sch. Dist., No. 12-1319 (W.D. Pa. Jan. 22, 2013)

Abstract: A federal district court in Pennsylvania has denied a school district’s motion to dismiss a suit brought by group of unidentified parents and students alleging that the Ten Commandments monument outside the entrance to the high school violates the First Amendment’s Establishment Clause. While acknowledging that the Plaintiffs’ claim might later prove untenable and their request for declaratory judgment and an injunction unwarranted, the court concluded that the Plaintiffs have pleaded sufficient factual allegations to state a plausible claim. The court stated that allowing the parties to conduct discovery will give them “ample opportunity to build a sufficient factual record that permits this Court to meaningfully apply the law to this difficult context-driven task.”

Facts/Issues: The Freedom From Religion Foundation (FFRF) filed suit on behalf of a group of parents and students against New Kensington-Arnold School District (NKASD), seeking the removal of a Ten Commandments monument from the grounds of Valley High School. The suit alleges that the 6-foot high stone monument outside of the school endorses religion, and violates the separation of church and state under the First Amendment’s Establishment Clause.

FFRF is seeking a declaratory judgment that the monument’s presence outside of a public school is unconstitutional, and an injunction ordering NKASD to remove the monument from school property. NKASD filed a motion to dismiss the suit and a motion to strike three paragraphs from the Plaintiffs’ complaint. The district court denied the motion to strike on the grounds that statements in those paragraphs ”do not fall within the realm of this highly disfavored remedy.”

NKASD challenged the legal sufficiency of FFRF’s allegations, “arguing that the Supreme Court of the United States’ fairly recent Establishment Clause jurisprudence forecloses the cause advanced by Plaintiffs.” Specifically, NKASD pointed to the factual similarity of the instant case with Van Orden v. Perry, 545 U.S. 677 (2005), a case in which the U.S. Supreme Court upheld the constitutionality of a Ten Commandments monument on government property.

Ruling/Rationale: The district court denied NKASD’s motion to dismiss the suit. Before analyzing the specifics of the school district’s motion, the court engaged in a lengthy discussion of Establishment Clause jurisprudence. It characterized this particular vein of constitutional law as muddied. It stated that “the Supreme Court has announced no less than four judicially-crafted ‘tests’ to analyze whether governmental action violates the Constitution.”

The court then reviewed the four tests “to provide the parties with some degree of clarity” as the case proceeds. It began with the three-prong test enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971). While acknowledging criticism of the Lemon test, the district court pointed out that “the Supreme Court reaffirmed the vitality of its use as recently” as its decision in McCreary Cnty. v. American Civil Liberties Union of Ky., 545 U.S. 844, 867 (2005).

The district court next examined the “endorsement test.” It stressed that “[t]he endorsement test and the second Lemon prong are essentially the same,” and “the same line of reasoning will apply to either standard.” 

Moving to the “coercion test,” the court noted that “within the Third Circuit, the courts recognize that the test ‘focuses primarily on government action in public education and examines whether school-sponsored religious activity has a coercive effect on students.’” It stated that the “Supreme Court has in fact not applied its coercion test outside the public education context.”

Finally, the district court looked at the “legal judgment test” developed by Justice Breyer in Van Orden v. Perry, 545 U.S. 677 (2005). It pointed out that this test was enunciated in a separate concurring opinion that resulted in a plurality decision, and the Third Circuit had not yet decided if Breyer’s analysis prevails. However, the district court pointed out that other federal appellate “circuit courts have concluded that the concurring opinion of Justice Breyer ultimately controls.”

Applying the previously discussed principles to arguments advanced by the parties, the district court found that even though it might later determine that the Plaintiffs’ “position [is] untenable and their requested relief unwarranted[,] a fair reading of the Complaint at this stage of the proceedings leads to the conclusion that the factual allegations provided by Plaintiffs extend beyond conclusory, ipse dixit assertions to at least having stated a facially plausible claim.” It concluded that the “Plaintiffs have adduced sufficient support to permit the Court to draw the reasonable inference that the claim Plaintiffs advance has sufficient merit under our current jurisprudence.”

According to the district court, the Plaintiffs “are entitled to a reasonable time in which they may conduct limited discovery in their attempt to garner support for the cause they pursue.” The district court, likewise, found that “[d]iscovery will also afford [the school district] the opportunity to inquire deeper into whether particular hypersensitivities exist such that the viewpoint of a reasonable observer would differ, uncover the historical background of the monolith, and confirm the claimed nature of the content on the display.”

Freedom From Religion Foundation v. New Kensington-Arnold Sch. Dist., No. 12-1319 (W.D. Pa. Jan. 22, 2013)

[Editor's Note: In September 2012, Legal Clips summarized an article from HeraldStandard.com, which reported that the FFRF had filed suit against NKASD seeking the removal of a monument of the Ten Commandments from the grounds of Valley High School. The article also reported that in addition to the suit against NKASD, the FFRF, along with Americans United for the Separation of Church and State, had joined in a request by a law firm for an unidentified family that was sent to Connellsville Area School District seeking the removal of a Ten Commandments monument outside Connellsville Junior High School. In both cases, the monuments were donated by the Fraternal Order of the Eagles, and both were erected in 1957.]

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