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Pennsylvania school agrees to retain cross-wearing teacher's aide

By The Associated Press
08.31.03

PITTSBURGH — A teacher's aide who was suspended without pay in April for wearing a cross necklace in violation of a school agency's ban on religious emblems will keep her job under a federal court settlement reached last week.

Brenda Nichol's attorneys settled with the ARIN Intermediate Unit 28, which provides teachers' aides and other services to 11 public school districts in Armstrong and Indiana counties. Nichol is a special education teacher's aide assigned to the Penns Manor School District, about 45 miles northeast of Pittsburgh.

The religious garb policy, which a judge ruled last June was likely unconstitutional, has already been dropped by ARIN, Nichol's attorney Joseph Luciana said.

"She wants to make sure other people don't get dinged by this policy the way she did," said Luciana, an attorney hired to represent Nichol by the American Center for Law and Justice, a Virginia-based public interest law firm founded in 1990 by religious broadcaster Pat Robertson.

U.S. District Judge Arthur Schwab approved the agreement on Aug. 28. In June, Schwab issued a preliminary injunction saying Nichol should be reinstated and given back pay because the garb policy was "openly and overtly averse to religion."

By settling the case, the parties avoid a trial on the merits of the policy and the 1895 Pennsylvania law on which it was based.

"Our accepting the judge's preliminary injunction as permanent means that his ruling only affects us and our employee handbook. It doesn't affect other school districts and their handbooks — the state law is left untouched and still stands," said Robert H. Coad Jr., ARIN's executive director.

But Vincent McCarthy, northeast regional counsel for the American Center for Law and Justice, said Schwab's ruling and the resulting settlement make it unlikely similar policies will be enforced by schools or other state-funded agencies.

"It's doubtful that this (issue) is going to arise again because of the result of this case. Everything's going to be there in the public record, including the legal fees," McCarthy said. "So it would not make much sense for someone to go down this road again."

ARIN has agreed to pay Nichol's attorneys' fees, but the figures won't be publicized until its board approves the settlement Sept. 16.

The board is almost certain to approve the settlement because the board's solicitor helped write it. If the board rejects it, Nichol's lawyers could take the case back to court.

Nichol was suspended without pay for a year in April for repeatedly refusing to cover up or remove a 1 ¼ -inch cross she wore on a necklace. Nichol, who says she is a born-again Christian, said the necklace is a personal statement of her beliefs and religious commitment, and compared it to her wedding ring, which she has said is an outward sign of her commitment to her husband.

Nichol didn't immediately return a call for comment for this article.

Coad said ARIN's policy was based on a century-old state law that bars state employees from wearing religious garb. He said the intention wasn't to discriminate against religious expression but to keep employees from wearing items that could be objectionable to others, including occult symbols.

ARIN's attorneys had argued the state law was buttressed by a 1990 decision by the 3rd U.S. Circuit Court of Appeals, which rejected arguments by a Muslim teacher in Philadelphia who wanted to wear traditional garb in the classroom. The court said school officials were right to prevent that because "the preservation of religious neutrality (in public schools) is a compelling state interest."

Schwab ruled the law didn't apply to Nichol because, as an uncertified teacher's aide, she doesn't fit the definition of a state employee.


Previous
Teacher's aide wins first round in legal fight over cross necklace
Federal judge issues temporary injunction allowing Brenda Nichol to return to job while court considers whether to overturn her suspension permanently. 07.04.03

Related

Federal judge sides with librarian fired for wearing cross necklace

Kentucky library had argued that dress code was meant to avoid appearance of religious favoritism, protect librarian impartiality. 09.04.03

Teachers learning there's a dress code for them, too
Some schools find they must clamp down on short skirts, baseball caps, flip-flops, T-shirts, spandex on adults in the classroom. 09.13.05

Teachers' religious liberties

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