Published: 12/17/2006

Christian band vs. Rossford Schools: Agreement ends legal action, but not controversy

BY JENNIFER FEEHAN
BLADE STAFF WRITER

Even after the lawyers have gone home, the debate will go on about how the controversy - and expense - over Rossford schools' refusal to allow a Christian rock band to perform at school got so out of hand.

Parties on all sides of the two-year-old dispute have different views about how and why Superintendent Luci Gernot made her decision to cancel a December, 2004, concert by Pawn Musical Ministries and whether the band itself became a pawn for others seeking to inject Christianity into a public school.

Some also wonder why a split school board agreed last week to a settlement with the band when it won its case in federal court.

U.S. District Judge Jack Zouhary sided with the school district on July 31, saying it had the right to prohibit the Christian band from playing because of a "realistic danger" the school could be seen as endorsing a particular religion.

"I thought, like many other citizens have told me, that the case was settled by Judge Zouhary's decision," said Joseph Minarcin, Jr., a school board member who voted against the settlement presented to the board Wednesday.

School board President David Kleeberger, one of three board members who voted for the agreement and the father of a Pawn band member, said the school district's legal bills, which already have topped $150,000, would have multiplied if it had to defend itself against Pawn's appeal in the 6th U.S. Circuit Court of Appeals in Cincinnati.

"We go to Cincinnati. It may have very well [led to] a jury trial," Mr. Kleeberger said. "What would that have cost our community and for what? Because of something somebody might have said? It certainly is a shame we spent all this money on this. All we had to do was talk to these fellows."

In September, the board agreed by a 3-2 vote to do just that.

With some help from a court mediator, attorneys and representatives of both sides worked out a settlement they say will end the mounting lawyers' bills and put the debate to rest.

"We're happy. The band is happy. I think for all practical purposes it serves its purpose," said Brian Hughes, a school board member who helped negotiate the settlement.

On Friday, Judge Zouhary signed a consent decree that vacates his earlier decision and clarifies the school's right to determine what manner of speech is appropriate in its classrooms and assemblies.

The order also dismisses all claims against the school board and Ms. Gernot and directs the school board to modify district policy by Jan. 1, 2007, to say that school officials may not "disfavor or discourage" a school-sponsored publication or event on a suitable topic because of the speaker's reputation for holding or advocating a particular religious belief.

"It's a delicate balance for any public school system to honor separation of church and state but still not discriminate against people of faith," Mr. Hughes said. "I think it's important that we maintain that balance and not let the pendulum swing in either direction, and I think this consent agreement does that."

In a written statement, the board went on the record saying it and its legal counsel acknowledge that the anti-drug, anti-alcohol assembly planned by Pawn "would not have violated any law, policy, or guideline." As part of the settlement, though, Pawn agreed to drop its request to play at Rossford High School during school time - something it previously said had to be part of any settlement.

Pawn member Mark Justice Montgomery said the settlement was not about the band, but about the principle it was fighting for.

"So much negative publicity has happened ... emotions would run high and the community does not need that," he said in an e-mail. "Not playing a concert is one way Pawn can help the healing."

It was just over two years ago that then-Rossford High School students Timothy Strausbaugh and Kyle Kleeberger approached Principal Ronald Grimm about their band, Pawn, playing a concert at school. Because Kyle Kleeberger's father was on the school board, Mr. Grimm suggested Kyle have his father contact him about the idea.

David Kleeberger at the time managed Pawn. He said he asked Mr. Grimm what kind of theme the assembly would have and Mr. Grimm left it up to him.

Mr. Kleeberger said he determined the band should play a secular set with secular lyrics and an anti-drug and anti-alcohol theme. He sent an e-mail to band members Dec. 9 telling them a Dec. 21 concert at the high school would be "an anti-drug show. Travis [Montgomery] will handle the short talk directed at Just Say No," the e-mail stated.

He said he also repeatedly asked school officials to view the secular lyrics the band would play.

Just when the anti-drug theme was decided remains in dispute, but Ms. Gernot insists that was not the information she was given when she initially gave her OK to the concert.

"When I was asked about this - and this was before any attorneys were involved - this was an idea for a band to play in front of their peers," Ms. Gernot said. "At the time, I didn't know they were called Pawn. I was told it would be nice for the self-esteem of the members of the band."

Initially, she said, she didn't have a problem with the idea even when Mr. Kleeberger e-mailed her about Pawn being a Christian band. She said she changed her mind after learning the band had a strong ministerial mission.

"The more I learned about this band, the more uneasy I was about having them play," Ms. Gernot said.

The superintendent's opinion - that Pawn should not play at school during instructional time - was affirmed by two lawyers. She said she felt even stronger about her decision after Mr. Kleeberger made statements about the need for religion in schools.

According to minutes of the board's Dec. 20, 2004, meeting, Mr. Kleeberger spoke on behalf of Pawn. He talked about how the U.S. military "sends out chaplains to the battlefield," how "God's in the President's" life and in "the President's prayers."

"The President asked us for prayers; he asked us to pray for the troops," Mr. Kleeberger told those at the school board meeting.

He closed by saying: "What I'm trying to do is open religious thought to schools."

Ms. Gernot said that a few days before the board meeting a national news network had wanted to interview her and Mr. Kleeberger about the controversy. She said he told her it could be a chance for the two of them to "bring religion back into the schools."

Ms. Gernot said she was "speechless" after hearing him say that.

"I don't know if there was a religious agenda here," she said last week. "All I know is what I had to do."

Mr. Kleeberger, who stepped down from his role as Pawn manager after the controversy heated up, said last week he did not want to see prayer or religious instruction in public schools, but he also did not want to force students to check their religion at the door.

"Religious thought should be allowed to be in school," he said last week. "How can you leave your faith at the door when you walk in school when you really believe?"

He said public schools can either sanitize every aspect of what they do so that there is no religious thought or they can be open to all viewpoints.

As for his comments to Ms. Gernot about bringing religion back into schools, he said what he wanted to do was get rid of the idea that Rossford schools are against Christians.

He referred to Atheist Madalyn Murray O'Hair, a former Rossford High School student who filed a lawsuit against Baltimore public schools that later led to the 1963 Supreme Court ruling outlawing prayer in schools.

"I'm not saying put prayer back in schools, but we could eliminate this idea that we're against Christians," he said.

Cincinnati attorney Thomas Condit, who represented the band free of charge as an affiliate attorney for the Rutherford Institute, a nonprofit civil liberties organization based in Charlottesville, Va., defended Mr. Kleeberger's statements.

"His statement about wanting to bring Christianity back into schools was very clear that what he was advocating was equal access for all religious groups, not just Christians, that religion itself had a place in the schools," he said.

"Religion can't be favored or disfavored," Mr. Condit added. "It's not like a poison that has to be kept out of the school."

The Rev. Mark Montgomery, a Methodist minister and father of Pawn band members Travis and Mark Justice Montgomery, insists religion in school was never the issue. The issue, he said, was the rights of religious people in school.

"This band has always agreed it would be inappropriate for a religious program to happen in school," Mr. Montgomery said. "This has always been about one group of students having the same opportunities as other students."

Mr. Condit said the dispute might never have gone to court if it weren't for the school's decision to allow Blind Ambition, a band with no religious mission or reputation, to play at the assembly where Pawn had been booked.

"That really triggered the constitutional issues," Mr. Condit said.

However one views the band's or Mr. Kleeberger's intentions, a majority of the five-member Rossford Board of Education clearly has a different perspective than it did two years ago.

Voting in favor of the settlement were the two board members who took office Jan. 1, Brian Hughes and Diane McKinney, and Mr. Kleeberger, who has been criticized for voting on such issues because his son is a member of Pawn.

Michael McAlear abstained from voting on the settlement, he said, because he didn't want any appearance of a conflict of interest. His son played in the now-defunct Blind Ambition band.

Mr. Minarcin voted no. He said he still believes Ms. Gernot made the right decision, and, as he pointed out before the vote was taken, he felt the matter should be decided at the board's regular monthly meeting tomorrow, not at a special session called at the last minute.

"I'm not happy," Mr. Minarcin said. "This is something I didn't believe in. I just wanted it to go down the road in the appeals court."

In a statement, the board expressed hope the settlement would help the community heal, put an end to the legal bills, and clarify the school's right to decide what takes place at school, and at the same time treat students "with strong religious identities fairly."

The board said the legal battle could have been avoided "had the recent dialogue taken place prior to, rather than after, the controversy traversed the courthouse steps."

Mr. McAlear, who opposed the board's decision to enter into settlement talks, allowed that talking might have helped avert the legal battle. "We are always a lot clearer in hindsight," he said. "I think you can always avoid conflict with more communication than less."

Mr. Kleeberger said he tried repeatedly to get the board and superintendent to sit down with band members before the lawsuit was filed in February, 2005, by band members Robert Golden, Mark and Travis Montgomery, and Timothy Strausbaugh. He said he tried to get them to look at the lyrics the band planned to sing, the words they planned to say, and make a decision based on those facts. They didn't listen, he said.

As for her part, Ms. Gernot said Judge Zouhary's July 31 decision affirmed her decision and she stands by it. She chose not to take part in the settlement talks between the band and the board and said Friday that she had not yet discussed the agreement with them.

"Someone asked me one time, 'Wasn't that a difficult decision to make?' I said, 'No, but it's been time-consuming to defend,'•" she said.

"It's very unfortunate that all of this happened," Ms. Gernot added. "Lots of time, lots of money, and lots of diversion - a lot was diverted from the students."

Mr. Hughes said he remains skeptical about the $90,000 legal bill from the Akron law firm of Whalen & Compton. The board has asked its new attorneys, Robison, Curphey & O'Connell of Toledo, to examine those fees to make sure the board was not overbilled by Whalen & Compton or billed by the firm for work performed by Toledo attorney Fritz Byers, also hired by the board. Mr. Byers' fees were $53,900.

"We have reason to believe it's a worthwhile pursuit to investigate these billings," he said, referring to Whalen & Compton's billings, which do not list billable hours. "We are pursuing it, and it may turn up nothing, but for the little money it would cost us to do a little extra investigation I think it's worth it to the taxpayers."

Although the Rutherford Institute provided free legal services to Pawn, Mr. Montgomery said band members plan to try to raise $15,000 over the next two years to donate to the institute in gratitude. He said things turned out well for both sides.

"Nobody in Rossford wants to say religious kids can't do what other kids do," Mr. Montgomery said. "This was just a great thing for beloved kids to do in a school they cared about."

Contact Jennifer Feehan at: jfeehan@theblade.com or 419-353-5972.