Remove or cover the cross on Spearville Elementary or face possible litigation, an Establishment Clause advocacy group warns. The Board of Education has decided to wait and see until the group puts up a case and a plaintiff.

The Latin cross on Spearville Elementary School is a violation of the First Amendment's Establishment Clause and should be removed, said attorneys with Americans United for Separation of Church and State.

The group sent a letter to Superintendent Daryl Stegman and Principal Marvin Hartzler on Nov. 19 saying "The school's cross display violates the constitutional prohibition against government action that 'conveys or attempts to convey a message that religion or a particular religious belief is favored or preferred,'" citing the Supreme Court decision County of Allegheny v. ACLU, a landmark First Amendment case.

The group sent the letter in response to a complaint from a resident.

The USD 381 Board of Education reached an informal consensus at its regular meeting Monday that it would take no action until a plaintiff comes forward with a lawsuit. No official action or votes were taken on the issue.

"I don't like bringing this up every month," Stegman said to the board. "I think the community stood very firmly that they didn't want to do anything unless they have to."

"Worst comes to worst I think you have to take it off," Stegman said.

Board Member Michael Hubbell called the complaint "ridiculous."

Ian Smith, an attorney with the group, said the bar for intervention on Establishment Clause cases is typically much lower for public elementary schools than other types of government institutions because of the coercive nature of schooling.

Whereas the court has upheld certain religious displays at certain government buildings, it could not force residents to enter those buildings as it can with children attending school, he said.

"Students don't have a choice to be there. Something that might be OK elsewhere is not necessarily going to be OK in a public school," Smith said. "The public schools have traditionally been treated different than other places."

The group requested a reply from the school district within 30 days of receiving the letter. On Jan. 9 it sent a second letter. The school district has chosen not to respond to the group.

"It's my hope they will recognize forcing students to go to a school with a large Latin cross emblazoned on it is a violation of their rights," Smith said.

The Establishment Clause, a part of the First Amendment, reads "Congress shall make no law respecting an establishment of religion..."

"Government can't favor religion, but it also can't be hostile to religion," said Jeffrey Jackson, a professor of law at Washburn University who focuses on constitutional issues.

"Nobody (in court decisions) ever actually says it that way... but if you look at the way they play it, it's kind of that way."

Though for public schools, particularly elementary schools, "there's generally a lower bar there" for judicial intervention, Jackson said. "We tend to think of elementary school students as fairly impressionable and more vulnerable for indoctrination in religion."

"Some things might be OK in college where we tend to think students have more of an ability to discern, pick and choose, and understand context."

Lower federal courts have typically followed the guidelines set out in the precedent made in the Lemon v. Kurtzman in Establishment Clause cases, Jackson said. Government actions are weighed against the "Lemon test," which has three criteria:

The government's action must have a secular legislative purposeThe government's action must not have the primary effect of either advancing or inhibiting religionThe government's action must not result in an "excessive government entanglement" with religionIf the government's action is seen as violating any of those criteria, it is generally seen to be in violation of the Establishment Clause, though the conservative wing of the Supreme Court, specifically, has criticized the validity of the test.

Another thing that may make a court decision complicated is that Spearville Elementary was a Catholic school until it was transferred from the Dodge City Diocese to the local school district in 1975. Saint John's school was built in 1925 and may be considered a historical building.

Since the cross is part of the architecture, if a case reaches the courts, it could be seen as a historical element of the building and not an endorsement of religion, Jackson said.

Jackson points to the Congressional chaplains and official invocations as examples of how religion in government can be allowed within certain situations, especially if they are considered traditional.

"In general, if you think about how these things tend to go, if you put up a new monument — a new display of the Ten Commandments — that is taken generally to be establishing a religion," Jackson said.

He joked that the deadline for being considered historical or traditional is "about 40 years," though no court decision has made that figure explicit.

Establishment Clause cases often hinge on small details, Jackson said. "In (McCreary County v. ACLU) they used the Lemon test, and said 'this is illegal' but what looks like a very similar case in (Van Orden v. Perry), they say, 'The lemon test is not helpful.'"

In another example, the Alleghany County case cited by Americans United, the Supreme Court ruled that a nativity scene at the courthouse was illegal, but an 18-foot menorah at a different government building next to a Christmas tree was allowed.

If the district does not comply with the request, the advocacy group will continue fact-finding and exploring options, both inside and out of the courts, Smith said. If the group believes it cannot make progress with the district outside of the courts, it will seek a "viable plaintiff" to be party to a suit against the district.

The group receives about 1,000 complaints a year, Smith said, of which about 90 percent receive no further action from Americans United. The group sends about 100 letters similar to the one to the Spearville district each year, he said.