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Teacher's aide wins first round in legal fight over cross necklace

By Associated Press
07.04.03

PITTSBURGH — A teacher’s aide suspended without pay for a year for wearing a cross necklace at a school will be able to temporarily return to her job later this summer while a judge considers whether to overturn the suspension permanently.

U.S. District Judge Arthur Schwab on June 25 issued a temporary injunction lifting Brenda Nichol’s yearlong suspension by officials with the ARIN Intermediate Unit 28 for refusing to cover up to take off a 1 ¼-inch cross.

In his ruling, Schwab said that the agency’s rule against employees wearing religious garb was unconstitutional and Nichol would likely win her case.

The agency’s policy “is openly and overtly averse to religion because it singles out and punishes only symbolic speech by its employees having religious content or viewpoint, while permitting its employees to wear jewelry containing secular messages or no messages at all,” Schwab wrote.

Schwab also ordered the agency, which supplies teachers aides and other services to 11 public school districts in Armstrong and Indiana counties, to reinstate Nichol and pay her for the work she missed since her April suspension from the Penns Manor School District, about 45 miles northeast of Pittsburgh.

Nichol, who is only seeking nominal damages, did not immediately return a phone call seeking comment.

Nichol will work a little over a week before an Aug. 28 hearing to determine whether her suspension will be lifted, said Robert H. Coad Jr., the agency’s executive director. Coad said she will not receive back pay because the agency opted to pay her as her lawsuit goes forward in federal court.

Coad said he hadn’t read through the ruling and hadn’t determined whether the agency would fight the injunction.

Officials with the American Center for Law and Justice, which is representing Nichol, hailed the ruling.

“The decision sends a strong message that the laws and policies that result in religious discrimination are not acceptable,” said Vincent McCarthy, an attorney with the group, in a statement. The a Virginia-based public-interest law firm was founded in 1990 by Christian broadcaster Pat Robertson.

ARIN officials said the rule was meant to keep employees from wearing any item that could be objectionable to others, including symbols or emblems of occult religions.

Coad has said the rule was based on an 1895 state law that bars state employees from wearing religious garb. Agency officials also argued that the state law had been upheld by the 3rd U.S. Circuit Court of Appeals.

In 1990, the appeals court rejected arguments by a Muslim teacher from Philadelphia who sought to wear traditional garb. The court said “the preservation of religious neutrality (in public schools) is a compelling state interest.”

Schwab said, however, that the state law wouldn’t apply to Nichol because, as an uncertified teachers’ aide, she didn’t fit the definition of a state employee.


Update
Pennsylvania school agrees to retain cross-wearing teacher's aide
School district officials already had agreed to drop disputed policy banning wearing of religious emblems. 08.31.03

Previous
Teacher's aide takes agency to court over cross necklace
Woman's attorney: 'The law is very clear on this issue — school personnel do not shed their constitutional freedoms when they enter the schoolhouse door.' 05.07.03

Related

Texas police sergeant loses religious-ornament suit

Federal appeals panel upholds dismissal of officer fired for wearing cross on uniform. 04.11.01

Woman accuses library of firing her for wearing cross
Federal lawsuit argues library's ban on 'religious, political or potentially offensive decoration' violates First Amendment. 02.04.02

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