Dismissal Of Suit Over Bible Story Upheld An Appeals Court Vote Affirmed A 1998 Ruling. The South Jersey Boy Sued After He Was Told Not To Read To His Class.

Posted: August 29, 2000

With a tie vote, a federal appeals court yesterday upheld the dismissal of a civil-rights suit by a South Jersey student who was not allowed to demonstrate his reading ability by reciting his favorite Bible story in class.

The decision by the U.S. Court of Appeals for the Third Circuit, affirming a 1998 lower court ruling, again removed the threat of litigation against teacher Grace Oliva and Medford Township school officials over a 1995 incident involving Hainesport first grader Zachary Hood.

Under its own rules, a tie vote among the 12 Third Circuit judges automatically affirms the lower court's decision. But the eight-page opinion by U.S. Circuit Judge Walter K. Stapleton did not give either side the legal guidance it had hoped for, leaving unaddressed the thorny constitutional questions of free speech and the place of religion in public education.

The case has been before the Third Circuit court or one of its three-judge panels three times since 1998 without a clear-cut ruling from the court, which hears appeals from federal trial courts in New Jersey, Pennsylvania, Delaware and the U.S. Virgin Islands.

The Third Circuit judges also refused to address a second aspect of Zachary's appeal, the alleged violation of his constitutional rights that occurred in 1994 when he was in kindergarten and a religiously oriented Thanksgiving poster he drew was temporarily removed from public display.

Stapleton wrote that the allegations involving the poster were so lacking in factual detail that "it is very likely that the court is being asked to resolve an important issue of constitutional law that is a purely hypothetical one as far as these parties are concerned."

The court returned this aspect of the case to the federal court in New Jersey to give Zachary, now 10, and his mother, Carol Hood, the chance to amend their complaint and support their allegations.

News of the tie vote and ambiguous ruling stunned attorneys for both the Medford School District and the Becket Fund for Religious Liberty, which represented the Hoods.

Kevin J. Hasson, a Becket Fund attorney, said he would appeal the Bible-story aspect to the U.S. Supreme Court and file a new complaint over the poster in the trial court.

"The cause of free student religious speech is very much alive in this case. We're going to be moving ahead on two fronts," he said.

Michael P. Madden, attorney for Medford schools, said he was pleased the court affirmed the decision in the Bible-story portion of the case. "We'll wait and see what the plaintiffs do next and react appropriately," he said.

The Hoods, of Lumberton in Burlington County, contended that Zachary's constitutional rights were violated when Oliva refused to let him read a favorite Bible story to his class as a reward for his reading proficiency.

Instead, Oliva let Zachary read the story - a retelling of the tale of Jacob and Esau from The Beginner's Bible - to her alone. Medford schools lawyers argued that Oliva's decision was a reasonable one because she was considering the interests of a class of impressionable first graders with varying degrees of religious training.

This 1995 incident followed the kindergarten one in which Zachary's Thanksgiving poster was taken down by an unidentified teacher because of its "religious theme" and then redisplayed a day later at a less prominent location at the end of a hallway.

The Third Circuit court's decision in the poster aspect of the appeal resulted in a sharply worded 20-page dissent from U.S. Circuit Judges Samuel A. Alito Jr. and Carol Los Mansmann.

"Instead of confronting the First Amendment issue that is squarely presented by that incident," Alito wrote, "the court ducks the issue and bases its decision on a spurious procedural ground." Alito wrote that a teacher's decision to temporarily remove Zachary's poster illustrating his thankfulness for Jesus violated the boy's First Amendment rights.

Joseph A. Slobodzian's e-mail address is jslobodzian@phillynews.com

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