Rights Watch
'Thou Shalt Not...'

'...post the Ten Commandments in school,' say federal courts, but 'In God We Trust' is probably OK.

Moses is making a comeback, although it may be short-lived. Lately, a growing number of government officials have tried to require that the Ten Commandments be posted in public places, mainly courthouses and parks. There have also been an equal number of lawsuits to stop them.

In Alabama, Ohio, Kentucky, Texas, Indiana, and Tennessee, plaintiffs are claiming that these displays violate the First Amendment's Establishment Clause. Media reports put the total number of lawsuits at close to 20.

And public schools have now been dragged into the fray. The Virginia and Alabama state legislatures last year considered--but failed to enact--bills to mandate posting the Ten Commandments in classrooms.

But in Ohio, the Adams County Board of Education erected granite monuments inscribed with the Ten Commandments in front of four new high schools. In a suit filed by the Ohio ACLU, a federal judge ruled last June that these monuments breach the wall of church/state separation--and ordered school officials to haul off the 800-pound granite slabs immediately.

In November, the Sixth Circuit Court of Appeals denied the school board's emergency request that it be allowed to leave the monuments in place, pending an appeal.

It's highly unlikely that the board's appeal will succeed. In the 1980 Stone v. Graham case, the U.S. Supreme Court struck down a Kentucky statute requiring that the Ten Commandments be posted in every classroom in the state.

Describing the Decalogue as a "sacred text in the Jewish and Christian faiths," the court emphasized that many Commandments are not confined to "secular matters," but rather prescribe the "religious duties of believers." Thus, the purpose and effect of posting the Ten Commandments, the court said, is to "induce the school children. . . to venerate and obey" those religious tenets.

The next legal battlefield may involve the posting of "In God We Trust" in schools. The phrase first appeared on U.S. currency during the Civil War, and it was declared the "national motto" by an act of Congress in 1956.

Four states--Virginia, Mississippi, South Carolina, and Utah--recently enacted laws requiring that the motto be posted in classrooms or schools. Five other states--Louisiana, Arizona, Florida, Georgia, and Kentucky--expressly permit the practice.

There currently are no pending lawsuits challenging these statutes, but several federal appellate courts have already rejected legal challenges to the appearance of the motto on U.S. money. The courts have said that the phrase is not an endorsement of religion, but merely a form of "ceremonial deism" that "fosters patriotism" and "confidence in the future."

Only time will tell whether this rationale will apply to preK-12 schools, where the courts generally are more protective of "impressionable" children.

--Michael D. Simpson
NEA Office of General Counsel

Supreme Court Preview

The U.S. Supreme Court has agreed to hear three controversial cases of special interest to NEA members:

• For the first time in 25 years, the high court will decide whether colleges and universities can use affirmative action in student admissions.
  In the 1978 Bakke case, a divided court ruled that schools can use race as a "plus" factor in making admissions decisions. In recent years, however, federal appellate courts have thrown out affirmative action plans from state universities in Georgia and Texas.
  Last December, the Court agreed to hear appeals in two cases challenging the University of Michigan's affirmative action plans for its law school and undergraduate program. Last May, the Sixth Circuit Court of Appeals agreed with the university that the educational benefits that flow from a diverse student body justify affirmative action.
  Since many institutions of higher education use some form of affirmative action, an adverse decision could have dramatic and long-lasting consequences.
  NEA, which filed an amicus brief in the Bakke case, will also file an amicus brief in the Michigan cases supporting the university's affirmative action effort.
• The Supreme Court also will decide whether Congress can require public libraries that receive E-rate discounts to install filtering software that blocks access to sexually explicit websites. The requirement is contained in the Children's Internet Protection Act of 2000 (CIPA).
  Last May, in a lawsuit brought by the American Library Association, a federal court ruled that the requirement violates the First Amendment. The court said that filtering software is both over-inclusive--it blocks websites that have nothing to do with pornography--and under-inclusive, because it doesn't block all sexually explicit sites.
  The CIPA requirement for filtering software also applies to schools that receive E-rate discounts. This lawsuit, however, does not challenge that mandate, which became effective on July 1, 2002.
• Finally, the high court will decide whether state employees, including employees of colleges and universities, can sue their employers for violating the Family and Medical Leave Act (FMLA)--the federal law that requires most employers to grant up to 12 weeks of unpaid leave for employees to care for ailing relatives, tend to a newborn child, or receive personal medical attention.
  In recent years, the Supreme Court has ruled that state workers can't sue for age or disability discrimination under federal law, holding that these statutes violate "state sovereignty." Many court watchers are predicting the same disturbing result in the FMLA case.
  NEA has filed an amicus brief supporting the state workers.
  The Supreme Court is expected to rule in these three cases sometime prior to its adjournment in June.

--M.D.S.