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The Bible usually can be used to win any argument, but 12 federal appeals judges were stymied last week on whether a first-grade boy should be barred from reading a Bible story in a public school. “This en banc court finds itself equally divided on the issue of whether judgment was properly entered in favor of the defendants � on the First Amendment claim arising from the first grade episode,” wrote 3rd Circuit Judge Walter Stapleton in C.H. v. Oliva et al., 98-5061. The 6-6 tie leaves intact a lower court opinion ruling that the boy’s First Amendment rights were not violated. But the plaintiff’s attorneys — enlisted by The Rutherford Institute of Charlottesville, Va., and the Becket Fund for Religious Liberty of Washington, D.C. — say they will seek certification from the U.S. Supreme Court. The boy’s mother, Carol Hood, filed suit in 1996 with the aid of the institute, which provided its own counsel and a New Jersey attorney, F. Michael Daily, against the Medford, N.J., school district, various teachers and administrators. The suit challenged two actions by the school. In one instance, her son Zachary’s poster of Jesus, made for a Thanksgiving Day project on things for which the students were grateful, was removed from its original hallway display and posted in a less conspicuous place. The defendants denied knowledge of the decision to take it down, and the person who did it was never identified. The following school year, Zachary’s teacher, Grace Oliva, told the students to bring in a favorite book to read to the class. Zachary chose a selection from “The Beginner’s Bible: Timeless Children’s Stories.” Oliva told Zachary he couldn’t read the story to the class because of its religious content. U.S. District Judge Joseph Rodriguez, sitting in Camden, N.J., dismissed both claims, and Hood appealed to the 3rd Circuit, where Circuit Judges Stapleton and Jane Roth and District Judge Joseph Longobardi affirmed the lower court without hearing arguments. Hood then enlisted two new lawyers, Kevin Hasson and Eric Treene of the Washington, D.C.-based Becket Fund for Religious Liberty, who joined Daily, a partner in the Merchantville, N.J., firm of Quinlan, Dunne and Daily. The new legal team requested that the 3rd Circuit reconsider the case, and the same three judges scheduled oral arguments in June 1999, only to affirm the lower court again. The lawyers then asked the 3rd Circuit for rehearing en banc, and the dozen judges heard arguments on Feb. 16. Last Monday, the judges remanded the case on the question of who took down the poster of Jesus, giving Hood’s lawyers a chance to show that school employees were responsible. Otherwise, the complaint should be dismissed, they said. However, the 3rd Circuit gave no reasons for its split on the reading of the Bible story in class. Judge Samuel Alito Jr. wrote a dissenting opinion, focusing on the poster incident. He was joined by Judge Carol Los Mansmann. However, other than Stapleton, Alito and Mansmann, the court gave no further indication about the positions of the other judges. Allan Stein, a professor who teaches federal procedure at Rutgers Law School-Camden, suggests that the justices may have been conscious that a split decision wouldn’t provide any meaningful precedent. “It may be somehow the judges feel less invested in the terms of the dispute,” says Stein, who follows the federal courts. “We’ve not seen that in court of appeals practices, but that’s not to say it’s not done.” Becket Fund attorney Treene says the split opinion “highlights the complexity and the importance” of the issues of religious expression in public schools. “We respect the fact that they [the circuit judges] grappled long and hard with it,” he says. The attorney for the school district, Michael Madden, says he is confident the district will prevail if the case reaches the U.S. Supreme Court. “We won this case four times, other than this remand for the poster incident,” says Madden, a name partner in the Haddonfield, N.J., firm of Madden, Madden & Del Duca. Named for Thomas Becket, the 12th century archbishop of Canterbury who was assassinated for sticking to his religious principles, the Becket Fund has made itself known in other New Jersey cases recently. The fund also represented Jersey City and Wall Township this year in battles with the American Civil Liberties Union over Christmas and Hanukkah decorations on public property. Courts ruled that the holiday decorations could stay if they were accompanied by secular holiday symbols like reindeer. Last year, Becket also represented Muslim police officers in Newark in a successful battle for the right to wear beards on the job. In the Medford case, Treene says that the school district’s actions clearly constitute “viewpoint discrimination” and that a higher court would clearly rule in favor of Zachary and his mother. “There’s a big difference between government-sponsored religious speech, like a teacher leading a prayer, and genuine student expression,” Treene says. “We find this to be an important case because there is a critical distinction between school prayer, and government pushing one religion or another, and on the other hand, a child sharing part of himself.” Treene notes that a memorandum from President Clinton on religious expression in public schools, posted on the Becket Fund Web site, contains advice on expressions of faith that can and cannot take place in public schools. For example, schools cannot forbid wearing of yarmulkes or headscarves that are part of a student’s religious practice, and students also may express their beliefs about religion in the form of homework, artwork or other written or oral assignments without discrimination based on religious content, the president’s memo says. “The guidelines are not binding as a matter of presidential authority on the schools, but the guidelines were designed by Justice Department attorneys to be the current state of constitutional law,” Treene says. Daily says that according to the U.S. Supreme Court ruling in Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988), educators can’t discriminate between religious and secular views. Hazelwood was brought by student staff members on a high school newspaper that had sexual content censored by administrators. The justices found that school students’ First Amendment rights were not the same as in the general population but had to be applied in light of the special characteristics of the school environment. “ Hazelwood upheld that educators have leeway to control expression for good reasons, but they don’t have the leeway to prohibit expression based on viewpoint,” says Daily. Treene says his group would consider a settlement if the school district agreed to adhere to Clinton’s guidelines on religious expression in schools. “They strike a good balance that goes a long way toward the perception that schools are religion-free zones,” Treene says. In his dissent, Alito said that “instead of confronting the First Amendment issue that is squarely presented by that incident, the court ducks the issue and bases its decision on a spurious procedural ground never raised by the defendants,” namely, who pulled down the poster.
US Supreme Court: Year in Review. September 11-26. Free Program.

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