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Media Alerts - Freedom From Religion Foundation Inc. v. New Kensington Arnold School District - Third Circuit
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August 22, 2016
  Freedom From Religion Foundation Inc. v. New Kensington Arnold School District - Third Circuit
Headline: Frequent contact not required for mother of student to challenge a Ten Commandments monument at local high school

Area of Law: Constitutional Law

Issue(s) Presented: Is frequent contact with a religious display required for plaintiff to have standing to challenge a school's Ten Commandments monument?

Brief Summary:

Marie Schaub along with her daughter Doe 1 and the Freedom From Religion Foundation (FFRF) brought suit against the New Kensington-Arnold School District, alleging the district had violated the Establishment Clause by maintaining a monument of the Ten Commandments at its public high school. Schaub saw the monument on occasion and sent her Doe 1 to a different high school to avoid the monument. The Third Circuit held that there is no requirement of frequent contact with a religious display for a person to have standing to challenge the display. It concluded that the issue was not moot because Doe 1 could return to the high school or its campus if the monument was removed.

Extended Summary:

Marie Schaub, her daughter Doe 1, and the Freedom From Religion Foundation (FFRF) sued the New Kensington-Arnold School District alleging that it had violated the Establishment Clause by maintaining a monument of the Ten Commandments at its public high school. In 1956, the New Kensington Fraternal Order of the Eagles, a non-profit charitable organization, donated a monument inscribed with the Ten Commandments to be placed on the grounds of Valley High School in New Kensington. The donation was part of a nationwide program through which local chapters of the organization donated over 140 such monuments. The organization believed that troubled teens would benefit from exposure to the Ten Commandments as a code of conduct. In addition to the text of the Ten Commandments, the monument is adorned with images of an eagle, an American flag, the Star of David, the Chi-Rho symbol, a Masonic eye, and tablets with Hebrew and Phoenician lettering. The monument is near the entrance of the school's gym. Anyone entering the school via this entrance passes within 15 feet of the monument. The parties disagreed about how closely one must approach the monument in order to read its text.

The FFRF, an organization dedicated to promoting separation of church and state, wrote a letter to the Superintendent of the District requesting that the monument be removed. The school board rejected the request. Schaub saw a news report about the letter and the school board's decision on television and contacted FFRF through its website. She maintained that she had been a member of FFRF since August 2012, when she contacted FFRF regarding the lawsuit. Schaub and Doe 1 live within the New Kensington-Arnold School District. Schaub had visited the high school and come into contact with the monument various times. In addition, Doe 1 was scheduled to attend the high school beginning in August 2014, and Schaub planned to drive her to school. Schaub estimated that from the curb, where she would drop someone off at the gym's entrance, she could make out the title of "The Ten Commandments" and the word "Lord" on the monument. The monument can also be seen from the road on which Schaub and Doe 1 frequently travel.

Schaub alleged that the monument brands her as "an outsider because [she] do[es] not follow the particular religion or god that the monument endorses." She wishes to bring up her daughter without religion and does not want her daughter to be influenced by the monument. Doe 1 identifies as non-religious. She had come into contact with the monument at a young age she had never read it. Doe 1 also stated that she "does not feel like she has to believe in god, but that since it's there in front of a school that they kind of want you to be that way." Appellants conceded that the record is silent as to whether Doe 1 had this view at the time the complaint was filed. Schaub decided to send Doe 1 to a different high school, which required her to leave her middle school classmates and attend a school farther from Schaub's home. Schaub claimed that if the monument were removed, she would permit Doe 1 to enroll at the school. Appellants filed suit in District Court seeking declaratory and injunctive relief, nominal damages, and attorney's fees. During the pendency of the lawsuit, Schaub and Doe 1's contact and possible contact with the monument continued. The District Court granted the District's summary judgment motion, concluding that the Appellants lacked standing and their request for injunctive relief was moot.

The Third Circuit reversed, holding that Schaub had standing to seek both nominal damages and injunctive relief, and that her request for injunctive relief is not moot. The Court concluded that a plaintiff must show direct and unwelcome personal contact with the alleged establishment of religion, but there is no requirement that the contact be frequent or that the challenger has altered her behavior to avoid contact. The Supreme Court has established that a single trifle is sufficient to establish standing. Frequent contact with a religious display may strengthen the case for standing but is not required to establish it. In addition, the Court expressed its view that a community member should not be forced to forgo a government service to preserve his or her ability to challenge an allegedly unconstitutional religious display or behavior. However, the Court stated that a passerby who is not a member of the community, and who faces no risk of future contact, may not have an injury in fact sufficient to confer standing. Standing requires that a plaintiff have a concrete grievance that is particularized to her; she cannot simply be expressing a generalized disagreement with activities in a place in which she has no connection. The Court held that Schaub had standing to pursue a nominal damages claim as she demonstrated that her contact with the monument was unwelcome.

The Court also held that Schaub had standing to seek injunctive relief, as Schaub would have contact with the monument while driving Doe 1 to school. In addition, as Doe 1's parent she has an interest in guiding her child's religious upbringing and has standing to challenge actions that seek to "establish a religious preference affecting" her child. The Court made clear that Schaub's decision not to send Doe 1 to the high school does not deprive Schaub of standing to seek injunctive relief. The Court still has the capacity to redress her grievances, as Doe 1 could return to the school if the monument is removed so her claim for injunctive relief is not moot. Schaub was not required to continue suffering the exact injury described in the complaint to maintain her entitlement to relief. The Court concluded that it need not address whether Doe 1 had standing to obtain an injunction, but concluded that the District Court correctly found that she lacked standing to seek nominal damages. The Court held that Doe 1 lacked standing to seek nominal damages, as it was not clear from the record that Doe 1 read or understood the monument until after the suit was filed.

Finally, the Court vacated the order dismissing FFRF's claims. The Court concluded that FFRF's standing was predicated wholly on the standing of Schaub. As the Court concluded that Schaub had standing, it remanded to the District Court to determine whether she was a member of FFRF at the time the complaint was filed, thereby giving FFRF organizational standing to pursue either injunctive relief or nominal damages.

The full opinion can be found at

Panel: Smith, Hardiman, and Shwartz, Circuit Judges

Argument Date: May 19, 2016

Date of Issued Opinion: August 9, 2016

Docket Number: No. 15-3083

Decided: Affirmed in part, reversed and remanded in part, vacated and remanded in part

Case Alert Author: Cynthia C. Pereira

Counsel: Patrick C. Elliott, Marcus B. Schneider, Counsel for Appellants; Christine Lane, Anthony G. Sanchez, Counsel for Appellee; Richard B. Katskee, Alexander J. Luchenitser, Stephen M. Shapiro, Charles M. Woodworth, Brian D. Netter, Steven M. Freeman, David L. Barkey, Jeffrey I. Pasek, Harsimran Kaur, Gurjot Kaur, Counsel for Amicus Curiae

Author of Opinion: Circuit Judge Shwartz

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/22/2016 02:40 PM     3rd Circuit  

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