The Connellsville Area School District school board voted to remove from school grounds the Ten Commandments monument that was at the heart of a federal lawsuit filed by the Freedom From Religion Foundation and a district family three years ago. The board unanimously voted last week to return the monument to the Fraternal Order of Eagles.
There were some misleading reports about this victory because the court, in its Aug. 28 ruling in our favor, did not order the removal of the monument. For instance, the Pittsburgh Post-Gazette headline inaccurately read, “School’s Ten Commandments monument violates Constitution but can remain in place, judge rules.” Although the judge did not order the removal of the monument, that’s not the same as ruling that the monument could stay.
The judge declared the Ten Commandments monument unconstitutional. That was the most important aspect of the decision and its central holding. Once he made this ruling, there was no real chance the monument would stay up.
But why not just order the removal? With every judicial decision comes a remedy—the method the court uses to right the wrong. The remedy can be money to compensate for an injury, a fine (punitive damages), jail time, or an injunction or order. For instance, in this case, the plaintiffs were awarded $1 in nominal damages for the harm caused by the display.
Some remedies, such as injunctions, are only available in certain instances. Injunctions force action—they order or “enjoin” a specific action. Because an injunction forces people or entities to act or omit an action, it is considered an extraordinary remedy. The brave plaintiff in the case was no longer attending the school with the Ten Commandments display by the time the judge ruled on the case. The case took three years and the student, who was in junior high at the time the case was filed, now attends high school in a different building. So the judge, right or wrong, did not believe an injunction was an inappropriate remedy. But he still ruled the monument unconstitutional.
If the school district had decided to keep the monument, it would have been in serious trouble. The court explicitly said the monument was unconstitutional, so the district would have knowingly violating a clearly established right under the Constitution.
Typically, a government official is immune from personal liability for his or her work in office. This is known as “qualified immunity.” But when a government official is knowingly violating a clearly established right, the official can be liable for those damages both as a public official and in his or her personal capacity. In other words, if the school board had refused to remove the monument, when FFRF sued the school again—and we would have—the school district would have had to pay up and the individual officials themselves might also have been paying FFRF out of their personal checking accounts.
Fortunately, cooler heads—and the Constitution—prevailed.