April 2009

Although this is a tough time financially for all non-profits, including The Rutherford Institute, we have never been busier. In fact, we are getting barraged with telephone calls, letters and e-mails asking for our help--some of which are reflected in the following case updates.

In terms of religious freedom and civil liberties generally, things are worsening. As all the studies show, students, teachers and the general public have little knowledge of their rights and the Constitution. And it shows in the pleas for help that we receive.

Despite all this, we are committed to helping those who come to us when their freedoms and beliefs are threatened. Thus, we are not cutting back on our caseload, and we are not backing off on any of the issues we fight in the courts. We will stay in the fight, no matter the cost, because we know that our freedoms are not free and must be defended at all costs.

Thank you for standing with us and helping us come to the aid of those of in need.

—John Whitehead, President

Please Help Us Win The Fight FOR FREEDOM! • CLICK HERE TO Donate Today

TRI Action

• In March 2009, The Rutherford Institute filed an amicus brief with the U.S. Supreme Court in a case that will define the limits of the authority of school officials to conduct strip searches of students. In Safford Unif. Sch. Dist.  #1 v. Redding, Dkt. No. 08-479, the Supreme Court agreed to review a decision of the Court of Appeals for the Ninth Circuit holding that school officials violated the Fourth Amendment when they strip-searched a 13-year-old female student who had been accused by another student of being the source of prescription strength ibuprofen found on the accuser.  In ruling that the strip search, which uncovered no evidence of wrongdoing, was unreasonable, the Court of Appeals stressed the minor nature of the violation and the fact that the accuser was not reliable enough to justify conducting a strip search. In its amicus brief, which was joined by the Cato Institute and Goldwater Institute, Rutherford Institute attorneys argued that the decision should be affirmed because the accusations of a minor caught red-handed should be corroborated before being credited by school officials. The brief also pointed out that school officials did not have any information indicating the searched student was concealing pills within her undergarments. Institute attorneys argued that the Court "should establish that strip searches of children may be undertaken only after careful reflection and only when compelling evidence suggests that a search is necessary to preserve school safety and health."

More information is available at: http://www.rutherford.org/articles_db/press_release.asp?article_id=764

• Rutherford Institute attorneys filed a motion for summary judgment in a First Amendment lawsuit on behalf of members of West Virginia's Constitution Party seeking to defend the Party's right to petition for state ballot access. In The Constitution Party of West Va.  v. Jezioro, No. 2:08-CV-61, Institute attorneys filed an action challenging restrictions imposed upon Constitution Party members' ability to circulate petitions at a carnival-like event held at Stonewall Jackson State Park, saying they violated the right to engage in peaceful political activities. The summary judgment motion argues that the state park is a traditional public forum in which persons are presumptively entitled to engage in expressive political activities under the First Amendment. Moreover, the plaintiffs were prevented from petitioning at a National Hunting and Fishing Day event at the park, which was an event conducive to the activities of the Constitution Party members. Because the state officials had no compelling reason for forbidding the petitioning, the motion asks that judgment be entered in favor of the plaintiffs.

  More information is available at: http://www.rutherford.org/articles_db/press_release.asp?article_id=748

• In March 2009, Institute attorneys successfully intervened on behalf of an Oklahoma high school student who was told she could not wear signs bearing uplifting Christian messages at her school. Officials at Grove High School warned the student about her signs after they received a complaint from another student and his parent that the signs were distracting and objectionable to him. The signs contained messages such as, "I shall not fear what men shall do unto me for the Lord is on my side - Psalms 118:6." In a letter to school officials, Institute attorneys demanded that the restriction be lifted because the student had a First Amendment right to display these messages at the school. The restriction was essentially a "heckler's veto" and allowed a single student to determine what expression would be allowed by the school. In a response to the letter, the school's legal counsel agreed that the signs could be worn by the student and that the school would not allow a "heckler's veto."


• In February 2009, Institute attorneys were successful in convincing Colorado School officials to allow a student to do a school project on the subject "Heroes" about Jesus.  The student's parents contacted TRI after a teacher tried to dissuade the student from using Jesus as his hero and then told the student he would not be allowed to participate in certain presentations if he persisted with his choice. TRI contacted school officials and explained that the student had a First Amendment right to his choice of subject and that the decision to forbid his choice of Jesus constituted viewpoint discrimination. The letter to school officials also pointed out that there were no Establishment Clause concerns in this case because any expression was clearly that of the student and not the school. Soon after the letter was sent, the student's parents reported that the school had informed them their son could use Jesus as his topic for his "Heroes" project.


• Rutherford Institute attorneys have filed a petition for certiorari with the U.S. Supreme Court asking the Court to overturn a decision by the U.S. Court of Appeals for the Sixth Circuit holding that a regulation denying ex-service members retirement credit for service with religious organizations under a program granting such credit for service members' post-separation "community service." The petition filed in Bowman v. United States, Dkt. No. 08-1184, asks the Court to review a decision holding that it was not improper for the Secretary of Defense to issue a regulation that "community service" retirement credit was not available if the "community service" was performed while employed by a religious entity that engages in proselytization.  Institute attorneys argue that the regulation was inconsistent with the legislation authorizing the program because nothing in the legislation indicated Congress intended that religious organizations not be eligible for participation in the program.  The petition also asserts that the exclusion violates the guarantee to equal protection of the law because it is not necessary to comply with the Establishment Clause and does not serve any other legitimate purpose.

Recent Decisions

• A California federal court recently upheld the lawsuit of two college students who were brought up on disciplinary charges for praying with an instructor in the instructor's office.  In Kyriacou v. Peralta Community College Dist. , 2009 WL 890887 (N.D.Cal. May 31, 2009),  the students received letters from the college's  Vice President notifying them of the College's intent to suspend them from class and  suggested that plaintiffs violated  which prohibit "disruptive behavior" after one of the students engaged in voluntary prayer with an instructor.  Another instructor overheard the prayer, objected to the activity and reported it to administrators.  In a decision rejecting a motion to dismiss the plaintiffs' claims, the court held that the students had stated claims that the disciplinary action against the students violated their First Amendment rights because it was protected expression.  It also ruled that the consensual prayer with a faculty member is not activity that violates the Establishment Clause because no reasonable observer would believe that this constituted government endorsement of religion.
  
  
• On March 20, 2009, the Ninth Circuit Court of Appeals entered an order dismissing the First Amendment lawsuit brought by The Rutherford Institute on behalf of a high school valedictorian whose microphone was turned off after she began speaking about the importance of religion in her life during her graduation speech. In the unpublished decision in McComb v. Crehan, 2009 WL 728388 (9th Cir. Mar. 20, 2009), the Court ruled that school officials did not violate the First Amendment rights of Brittany McComb when they cut off her microphone. The decision reversed the order of the U.S. District Court of Nevada, which had ruled that McComb's claims were not subject to dismissal because more discovery was required. McComb, who is currently studying at Oxford University, plans to appeal the ruling to the U.S. Supreme Court with the help of The Rutherford Institute.

  More information is available at: http://www.rutherford.org/articles_db/press_release.asp?article_id=763

• The Supreme Court has ruled that in accepting or rejecting monuments offered by private entities for display on public grounds, governmental entities engage in "government speech" and are not restrained by limits on viewpoint discrimination that would otherwise apply in traditional public forums. In Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125 (2009), the Court reviewed actions by the city rejecting the request of respondent Summum, a religious organization, to erect a monument containing the Seven Aphorisms of Summum in the city's Pioneer Park. The park had 11 permanent, privately donated displays, including a Ten Commandments monument, which the City had accepted, but rejected Summum's monument with the explanation that it limited park monuments to those either directly related to the City's history or donated by groups with longstanding community ties. Summum filed an action asserting that the City had violated the First Amendment's Free Speech Clause. Although the Court of Appeals for the Tenth Circuit upheld Summum's claim, the Supreme Court reversed, holding that the monuments constituted "government speech" that is not subject to First Amendment scrutiny. "The City has selected those monuments that it wants to display for the purpose of presenting the image of the City that it wishes to project to all who frequent the Park," and as such it is communicating its own views and message and not those of the private entity that donated the monument. Id. at 1134.

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About Parakletos

Parakletos is The Rutherford Institute’s bi-monthly affiliate attorney newsletter. Greek for advocate/intercessor, “parakletos” refers to one who comes alongside and encourages us, one who enables us to be brave, one who empowers us to cope with the struggles and battles of life. Every issue of Parakletos includes articles about precedent-setting cases, recent legal victories, and at least one profile on a Rutherford affiliate.

The Fight for Freedom Needs You: Affiliate Attorneys Wanted

Each year, The Rutherford Institute comes to the aid of thousands of individuals who have encountered injustice in their lives. We are able to do so with the help of a dedicated group of attorneys across America who donate their time and expertise to assist us in our efforts to uphold and defend our constitutional freedoms.

The Rutherford Institute is currently seeking seasoned attorneys to take a more active role in assisting with constitutional cases involving violations of religious freedom, human rights and other basic liberties. Affiliate attorney responsibilities in pro bono cases range from assisting with the drafting of briefs on critical issues and handling litigation strategy to providing insightful legal arguments and filing briefs in local courts.

If you or someone you know is interested in assisting with a case in your region, please email us at staff@rutherford.org with your contact information, as well as the names and contact information of any colleagues who might be interested in helping the fight for freedom. We'll send out an informational packet about our Affiliate Attorney Program and have one of our attorneys follow up to match your interests and expertise with our needs in your area.