BISMARCK, North Dakota — A proposal in North Dakota to shield schools and teachers from lawsuits arising from posting the Ten Commandments in classrooms is unconstitutional and would spur costly and unwinnable legal fights, attorneys and education officials told state lawmakers Wednesday.
Despite the cautionary advice, the House Judiciary Committee gave the legislation an 11-3 “do-pass” recommendation, hoping that a requirement that the Ten Commandments be included in a display with other historical documents would fend off legal challenges. The full House will consider the bill later.
The Republican-led North Dakota Senate approved the measure 34-13 last month.
Attorneys and education officials said the bill likely violates the clause in the First Amendment of the U.S. Constitution that prohibits the establishment of religion by the government.
“Should the Legislature enact (the measure) it will likely precipitate costly litigation for which public school will be liable under federal law,” the American Civil Liberties Union said in written testimony.
Proponents of the legislation say it is intended to promote moral behavior in schools.
“No religion opposes the Ten Commandments — atheists do,” said Edinburg GOP Sen. Janne Myrdal, who sponsored the bill.
“It’s not a mandate,” Myrdal said. “It’s absolutely local control.”
Groups representing school boards and education officials opposed the legislation, fearing a legal challenge.
Schools “can’t be immune from a federal lawsuit just because the state deems it so,” said Alexis Baxley, executive director of the North Dakota School Boards Association.
Endorsing the legislation is akin to “paving a yellow brick highway for litigation,” said Aimee Copas, executive director of the North Dakota Council of Educational Leaders.
The measure also aims to protect schools from litigation that could arise from students’ reciting the Pledge of Allegiance. Opponents said that part of the bill is moot because it already is allowed, but not mandatory.
Legal battles over the Ten Commandments in North Dakota classrooms are not new.
A federal judge in 1980 overturned a 1927 North Dakota law that required them to be posted in classrooms.
Murray Sagsveen, an assistant North Dakota attorney general at the time, defended the law in court.
“I remember that case very well because I lost it,” Sagsveen said, while testifying against the new legislation.
“I expect if this bill is enacted into law that school boards will be pressured to again post the Ten Commandments in public classrooms, a school board will yield to the pressure, the school board will be sued and certainly lose,” Sagsveen said.