A church-owned religious education program held on school grounds in Huntington County should be terminated because it violates the Establishment Clause of the First Amendment, a federal magistrate has ruled.

In a 31-page order issued Tuesday, U.S. District Magistrate Roger Cosbey in the Northern District of Indiana's Fort Wayne division recommended granting a preliminary injunction in H.S. v. Huntington County Community School Corp., 1:08-CV-271.

The American Civil Liberties Union of Indiana filed the suit in November on behalf of a third-grader's mom, who challenged the district's voluntary religious release-time education program known as "By the Book." Run by Associated Churches of Huntington County, the program uses modular trailers that are parked on elementary school property but plugged into city utilities. The suit alleged that program violated the U.S. Constitution by allowing religious instruction on school property, even if students weren't required to participate. Court records note that about 97 percent of third- and fourth-graders take part with parental consent.

Magistrate Cosbey held a hearing in mid-January to consider whether the program should be temporarily shut down in its current incarnation. School officials moved to dismiss the suit, but Magistrate Cosbey has denied that request and found the plaintiff would likely succeed on the merits in the case.

In his ruling, the magistrate wrote the question in this case boils down to whether religious instruction to elementary students on public school property during the school day, in a church-owned mobile classroom, violates the Establishment Clause.

Along with a string of caselaw, Magistrate Cosbey cited the "overarching principle" articulated by the U.S. Supreme Court in People of State of Ill. ex rel. McCollum v. Bd. Of Educ. Of Sch. Dist. No. 71, Champaign County, Ill., 333 U.S. 203 (1948), which stated "the use of tax-supported property for religious instruction" and the "utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith" makes the program unconstitutional.

Magistrate Cosbey wrote that the school district faces minimal harm if the preliminary injunction is granted, while the plaintiff faced irreparable harm with continued violation of her First Amendment rights. Any inconvenience caused to Associated Churches of Huntington County by the preliminary injunction does not outweigh any harm caused by the constitutional violation, he wrote.

The school system has 10 days to file written objections to the magistrate's recommendation, and if that happens the plaintiff would then have an additional 10 days to respond to that. Senior Judge James Moody in the Hammond division will make the final ruling on the case.