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Woman who wore cross gets job back

School aide reinstated until Aug. 28 hearing

Thursday, June 26, 2003

By Torsten Ove, Post-Gazette Staff Writer

Indiana County teacher's aide Brenda Nichol, suspended for wearing a cross in school, won the first round in her federal court battle yesterday when a judge said her employer must reinstate her.

In granting a request for a preliminary injunction, U.S. District Judge Arthur J. Schwab said Nichol, 43, of Glen Campbell, must be returned to her job as an aide at Penns Manor Elementary School with full back pay and benefits.

The order will stay in effect until another hearing on Nichol's request for a permanent injunction, scheduled for Aug. 28.

The ruling doesn't mean much in a practical sense because school is out for the summer and Nichol's employer, ARIN Intermediate Unit 28, has already agreed to pay her through the rest of the year.

But it was a symbolic win for her and her lawyers from the American Center for Law & Justice, a Virginia-based law firm founded by Christian broadcaster Pat Robertson.

"We're delighted that the court acted to protect the constitutional rights of our client," said ACLJ attorney Vincent McCarthy in a statement. "This is an important victory for our client and the First Amendment. The decision sends a strong message that laws and policies that result in religious discrimination are not acceptable."

Nichol couldn't be reached yesterday. ARIN attorney Richard Tucker said he hadn't seen the opinion and couldn't comment on it.

Nichol filed suit in May against the intermediate unit, saying her employer unfairly suspended her without pay for refusing to remove her cross, which she wears on a necklace. She said the intermediate unit violated her First Amendment rights.

ARIN, which provides support services for various school districts, said the state school code and its own policy forbids teachers from wearing religious symbols.

In siding with Nichol, Schwab said the intermediate unit's policy prohibiting employees from wearing "religious emblems, dress or insignia," specifically jewelry such as crosses, violates her right to free speech.

Schwab said ARIN's policy is "openly and overtly averse to religion" because it singles out religious symbols while allowing jewelry containing secular messages.

"ARIN's Religious Affiliations policy thus displays, in purpose and effect, decided hostility toward religion, without any important or compelling state interests served," Schwab said.

One sticking point raised at an earlier hearing is how the state statute should apply to Nichol. It says teachers can't wear religious symbols, but it doesn't say anything about teacher's aides. Tucker had argued previously that common sense dictates the law covers anyone who appears before students.

But Schwab ruled in favor of Nichol on that issue, too, saying the law doesn't apply to her because she isn't a teacher.

Schwab also said the cross didn't cause any disruptions in school. In fact, no one seemed to pay any attention to it for years. ARIN Supervisor Robert Truscello, for example, said he'd seen Nichol for seven years at school and didn't notice the cross until this year.

"As this history demonstrates, the chances of disruption, distraction or confusion over such jewelry, albeit one expressing a religious viewpoint, are slim to none," said Schwab. "It hasn't happened and it is not likely to."

Nichol had been told previously, however, about the cross. In 1997 she received a notice with her paycheck explaining the policy. In March of this year, Truscello reminded her and others of the prohibition. In April, he told her to remove the cross or tuck it in, but she said she wouldn't because she considered it akin to a wedding ring symbolizing her relationship with Jesus Christ.

On April 8, Nichol wore the cross again and the intermediate unit suspended her.

Schwab said earlier that the issue will probably end up before the 3rd U.S. Circuit Court of Appeals.

The appellate court has already upheld the ban on religious garb in schools in a 1990 case in which a Muslim teacher in Philadelphia wanted to wear a head scarf and other traditional clothing. The court said she couldn't.

But Nichol's lawyers said religious symbols can't be banned unless they cause problems with the operation of the school, and Schwab agreed.

"[ARIN] will suffer little or no harm if the court grants this preliminary injunction," he said.

Torsten Ove can be reached at tove@post-gazette.com or 412-263-2620.

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