A lawsuit filed by the Freedom From Religion Foundation on behalf of a client in Pennsylvania against the New Kensington-Arnold School District has been dismissed on standing grounds. The case was prompted by a Ten Commandments monument in front of Valley High School in that district.
Judge Terrence McVerry ruled on July 27 that FFRF and a parent of a student who challenged a Ten Commandments monument in front of a public school do not have standing to bring the lawsuit. The opinion did not address the constitutionality of the monument in front of Valley High School, which is in the New Kensington-Arnold School District in Pennsylvania.
“We are disappointed with the mistaken ruling and will discuss an appeal with our attorneys,” said FFRF Co-President Dan Barker.
Marie Schaub, who is an FFRF member and resides in the District, brought suit in 2012 to have the monument removed. FFRF’s summary judgment brief discussed the plaintiffs’ contact with the monument, which included a visit to the school for a karate event, use of the school’s swimming pool, and visits to the school on other occasions. FFRF’s brief argued, “This direct unwelcome contact with the Monument satisfies any standing burden that the Doe Plaintiffs have.”FFRF’s statement of facts in the case highlighted another form of unique injury to the family. Ms. Schaub withdrew her child from the school because of the Ten Commandments Monument. (See ¶¶ 90-97). Thus, the plaintiffs’ standing should be even more apparent since they altered their conduct to avoid the school.
Judge McVerry has not yet ruled on a companion case filed against the Connellsville Area School District over a similar monument.
“It is troubling that judges are closing the courthouse door on plaintiffs who simply want government actors to abide by the Constitution,” said Barker.
I’m surprised that the second fact, that the plaintiff withdrew her child from the school, wasn’t enough to grant standing. Had she left her child in the school, that would almost certainly have been enough to give them standing to bring the suit. But it reminds us yet again of how absurd and artificial the entire standing doctrine is. This is a clear violation of the First Amendment; on the merits, it ‘s practically an open and shut case given the precedents. But you can’t get standing to bring the suit.
I’ve long referred to this as the Tonya Harding strategy — when you know you can’t win in court, hobble them on the courthouse steps so they can’t make it to court.