Ten Commandments Suit in PA Dismissed on Standing Grounds

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.

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  • StevoR

    . 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.

    Umm, ohhkaay.

    So they .. what?

    Used the Ten Commandments monument in a karate event (as what, a block to be broken by hand chops? Tough challenge if fun!) and in the swimming pool somehow (a handicap for the best swimmer perhaps? Seems a tad cruel!) did they?

    What use really is a Ten Commandments Monument?* Waste of money really.

    * Jumping / resting climbing object and convenient cover to hide behind in kids games games I guess?

  • eric

    So, if you withdraw from the public sphere because the government is promoting a religion in it, you no longer have standing to demand the government stop promoting religion?

    I’m guessing that logic would never fly if the discrimination was anything other than religious. If someone had withdrawn their girl because of the promotion of sexism by the school or a black family had withdrawn their kid because the school few a Confederate flag, there would be no question about standing whatsoever.

  • llewelly

    eric:

    … or a black family had withdrawn their kid because the school few a Confederate flag, there would be no question about standing whatsoever.

    Almost certainly not true. A huge number of schools in the south flew confederate flags until very recently – and many still do. It’s practically guaranteed that many black people have been denied standing on similarly ridiculous grounds.

  • Akira MacKenzie

    I have the sneaking suspicion that if the plaintiff were a Hindu or Buddhist student , the courts would jump through hops to accommodate them.

  • Akira MacKenzie

    Hoops, sorry.

  • StevoR

    @ ^ Akira MacKenzie : Pity, I’d happily drink er.. jump through hops anyday!

  • http://teethofthebuzzsaw.blogspot.com Leo Buzalsky

    @1 StevoR

    I’m assuming that is sarcasm on your part. I suspect they meant more like visual contact as opposed to physical contact. 😉

  • StevoR

    @ ^ Leo Buzalsky : Yup.

    Tongue in cheek. Metaphorically speaking. (Because, biologically speaking and literally that”d be quite a weird mutation!)

  • StevoR

    .. Although I ‘spose it depends exactly what’s meant by “tongue in cheek” – exterior to mouth, interior to it or halfway between and I guess something similar~ish it works alright for flies (Diptera genus’es) which have their equivalent of tongues in feet? Hmm .. Oh well. 😉

  • John Pieret

    I’m surprised that the second fact, that the plaintiff withdrew her child from the school, wasn’t enough to grant standing.

    Not under the standing rules, which are a subset of the “case in controversy” rules. Federal courts are not allowed to issue “advisory opinions” ruling on hypothetical cases. There has to be an actual case before the court between 2 or more real parties who have specific interests in the outcome. The fact that, in this case, one of the parties was able to avoid the purported harm the school was inflicting rendered the case “hypothetical.” If the child had gone to the school, s/he would have had standing because s/he was being subjected to government promotion of religion.

    This isn’t intended to justify the standing rules, merely to explain them.

  • dingojack

    I don’t know. It doesn’t seem enough to me.

    Would seeing a poster (for example) of acts that I consider offensive and lewd (say)*, whilst out shopping, whilst going to the movies one time, and on some other occaisions (unspecified in number) cause significant levels of distress and/or harm? Enough for the poster to be removed?

    What level of contact is required? And what level of distress and/or harm are required? How does one prove such things?

    (Personally, I’d argue ‘seperation of church & state’ rather than ‘offense’).

    Dingo

    ———

    * what if it were a poster promoting marriage equality, for instance?

  • moarscienceplz

    The family had a child in that school, ergo they live in the school district and presumably pay taxes that are used to support that school. That’s not enough standing in itself?

  • John Pieret

    moarscienceplz:

    Generally speaking, paying taxes is not enough to obtain standing. If it was, hundreds of millions could sue the Federal government for each and everything it does. It would be good for us lawyers but the government would have a tough time getting anything done.

  • D. C. Sessions

    So if the school had a widely-proclaimed practice of beating children with blue eyes and a family with a blue-eyed child declined to subject their child to that practice, would the family have any grounds to sue the school given that they had suffered no harm?

  • John Pieret

    D.C. Sessions:

    would the family have any grounds to sue the school given that they had suffered no harm?

    Not for the violation of the child’s rights, since it didn’t happen. There could be other remedies, including civil rights violations, laws prohibiting or limiting corporal punishment in schools and, of course, political action. Since the essence of this sort of an Establishment Clause violation is being forced to endure proselytization by the government, if you don’t, there is no standing.

  • Ysidro

    Damn, this is practically my backyard (or in the slightly weedy backyard down the street) and I didn’t even know it was going on. No one talking about it. Nothing in the news.

    But I digress….

    So who the hell would have standing? No one apparently. It’s amazing what you can get away with when you can claim no one was affected!