Koenick v. Felton

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JUDITH M. KOENICK,

Plaintiff-Appellant,

v.

REGINALD M. FELTON, President,

Board of Education of Montgomery

County; PAUL VANCE,

Superintendent of Schools,

Montgomery County Public

Schools,

No. 97-1935

Defendants-Appellees.

THE AMERICAN JEWISH CONGRESS;

NATIONAL COUNCIL ON ISLAMIC

AFFAIRS; FREEDOM FROM RELIGION

FOUNDATION; AMERICANS UNITED FOR

SEPARATION OF CHURCH AND STATE;

AMERICANS FOR RELIGIOUS LIBERTY;

AMERICAN HUMANIST ASSOCIATION;

THE AMERICAN ETHICAL UNION,

Amici Curiae.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(CA-96-3111-AW)

Argued: December 1, 1998

Decided: August 20, 1999

Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Judge Ervin wrote the opinion, in

which Judge Motz and Senior Judge Butzner joined.

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COUNSEL

ARGUED: Eugene Roy Fidell, FELDESMAN, TUCKER, LEIFER,

FIDELL & BANK, Washington, D.C., for Appellant. Stuart Henry

Newberger, CROWELL & MORING, L.L.P., Washington, D.C., for

Amici Curiae. Roger Warren Titus, VENABLE, BAETJER & HOW-

ARD, L.L.P., Rockville, Maryland, for Appellees. ON BRIEF:

Dwight H. Sullivan, AMERICAN CIVIL LIBERTIES UNION OF

MARYLAND, Baltimore, Maryland; Arthur B. Spitzer, AMERICAN

CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL

AREA, Washington, D.C., for Appellant. Bradley S. Albert, CRO-

WELL & MORING, L.L.P., Washington, D.C.; Harvey Reiter, Marc

D. Stern, AMERICAN JEWISH CONGRESS, Washington, D.C.; G.

Arthur Robbins, MCNAMEE, HOSEA, JERNIGAN & KIM, P.A.,

Greenbelt, Maryland; Steven K. Green, AMERICANS UNITED FOR

SEPARATION OF CHURCH AND STATE, Washington, D.C., for

Amici Curiae. Kevin B. Collins, VENABLE, BAETJER & HOW-

ARD, L.L.P., Rockville, Maryland, for Appellees.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Judith M. Koenick ("Koenick"), a former public school teacher,

filed this § 1983 action against the Board of Education of Montgom-

ery County, Maryland ("the Board") challenging the constitutionality

of a Maryland statute which provides for public school holidays on

the Friday before Easter through the Monday following. Koenick

argued that the holiday statute's enforcement amounted to an imper-

missible establishment of religion in violation of the First Amend-

ment's Establishment Clause.1 Both parties filed summary judgment

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1 Just prior to oral argument, this Court was notified that Koenick was

no longer employed as a public school teacher in Montgomery County.

We find, therefore, that Koenick lacks standing to pursue her equal pro-

tection claim and do not address it herein.

2

motions in district court. The court awarded summary judgment in

favor of the Board and Koenick appealed. Because we agree with the

district court that this statute does not violate the Establishment

Clause, we affirm.

I.

Under Maryland law, public schools must create their annual

school calendar in accordance with Md. Code Ann., Educ. § 7-103

(1996). Subsection (c) of § 7-103 provides for public school holidays

on Thanksgiving, Christmas Eve through January 1, the Friday before

Easter through the Monday after, Memorial Day, and primary and

general election days.2

As authorized, the Board adds additional holidays to those listed in

§ 7-103(c), including Martin Luther King, Jr. Day, President's Day,

Independence Day, Labor Day, Yom Kippur, and Rosh Hashanah.

The Board decided to include Yom Kippur and Rosh Hashanah to the

list of holidays because high absenteeism among both teachers and

students on those days resulted in low instructional productivity and

increased costs for substitute teachers. The Board also builds into the

calendar an annual spring vacation by adding four more vacation days

to the beginning of or at the end of the statutory four-day break over

Easter weekend mandated by § 7-103(c)(1)(iii). In creating the annual

calendar, the Board attempts to schedule the ten-day spring vacation

so that it coincides with Passover to lower absenteeism, but that is not

always possible. The official school calendar indicates that from the

Friday before Easter to the Monday after Maryland public schools are

closed for "Easter."

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2 Section 7-103(c) provides in relevant part:

(c) Holidays. -- (1) The following days are public school holidays:

(i)Thanksgiving Day and the day after;

(ii)Christmas Eve and from then through January 1;

(iii)The Friday before Easter and from then through the Mon-

day after Easter;

(iv)Memorial Day; and

(v)Primary and general election days.

Md. Code Ann., Educ. § 7-103(c) (1996).

3

On October 3, 1996, Koenick filed this action pro se against the

President and Superintendent of the Board alleging that the Board's

recognition and enforcement of § 7-103(c)(1)(iii), which provides for

a school holiday from the Friday before Easter to the Monday after,

violated the Establishment Clause. A period of discovery followed

during which Koenick retained counsel. At the close of discovery,

Koenick moved to file an amended complaint and to add additional

State officials as defendants. The district court allowed the filing of

an amended complaint but denied her request to add defendants.

Additional discovery followed the filing of the amended complaint,

after which the parties filed cross-motions for summary judgment.

The district court granted summary judgment in favor of the Board,

denying Koenick's claims that § 7-103(c)(1)(iii) violated the Estab-

lishment Clause. Rejecting Koenick's argument that because § 7-

103(c)(1)(iii) facially prefers one religion over another, the Maryland

statute should be subject to strict scrutiny under Hernandez v.

Commissioner, 490 U.S. 680 (1989), the district court applied the

three-part test announced in Lemon v. Kurtzman , 403 U.S. 602 (1971)

("the Lemon test"). Under the Lemon test, the district court found the

statute constitutional because it had a secular purpose, its principal or

primary effect was not to advance or inhibit religion, and it did not

foster an excessive entanglement between church and state.

The district court acknowledged that the Supreme Court had

recently suggested other tests for analyzing the constitutionality of

statutes under the Establishment Clause and also that other Circuit

courts had found similar statutes unconstitutional, but declined to

apply the reasoning of these courts in this case. Koenick appealed the

ruling.

We review the district court's grant of summary judgment de novo.

See Brogan v. Holland, 105 F.3d 158, 161 (4th Cir. 1997). We must

affirm if the case presents no genuine issues of material fact and the

Board is entitled to a judgment as a matter of law. See Roe v. Doe,

28 F.3d 404, 406 (4th Cir. 1994). All reasonable inferences are to be

drawn in favor of the non-movant, Koenick. See id. at 407.

II.

Koenick alleges that § 7-103(c)(1)(iii) violates the Establishment

Clause of the First Amendment of the Constitution, as applied to the

4

states by the Fourteenth Amendment. The Establishment Clause pro-

vides that "Congress shall make no law respecting the establishment

of religion." U.S. Const. amend. I. To evaluate Koenick's claim,

therefore, we must venture into the often-dreaded and certainly murky

area of Establishment Clause jurisprudence. As an initial matter, how-

ever, we must determine whether Koenick has standing to bring this

suit.

A.

Just prior to oral argument, Koenick applied for retirement from

the Montgomery County Public School system. She requested that her

retirement pay commence on December 1, 1998, the exact date of oral

argument in this case. This Court was made aware of Koenick's

change in employment status in a letter from the Board's counsel

wherein the Board argued that this issue mooted Koenick's appeal

because she no longer had standing to file her appeal. In a response

letter, Koenick's counsel conceded that, without being a teacher,

Koenick lacked standing to bring her equal protection claim, but that

as a taxpayer and citizen of Montgomery County and the State of

Maryland she retained standing to pursue her Establishment Clause

claim.

Article III, § 2 of the Constitution requires that judicial resources

be spent only in the resolution of Cases or Controversies. Part of this

case-or-controversy hurdle requires that the litigants have standing to

sue or defend. See Arizonians for Official English v. Arizona, 520

U.S. 43, 64 (1997). To prove standing, a party must show "an inva-

sion of a legally protected interest" that is"concrete and particular-

ized." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). An

interest shared with the public at large is not sufficient; see id. at 573-

76, the litigant must allege a direct injury, such as being subjected to

an unwelcome intrusion of religion. See Suhre v. Haywood County,

131 F.3d 1083, 1086-87 (4th Cir. 1997).

The seminal taxpayer standing case is Doremus v. Board of Educ.,

342 U.S. 429 (1952), in which the Supreme Court explained that a

taxpayer has standing to challenge a statute when he is able to show

that he "has sustained or is immediately in danger of sustaining some

direct injury as a result of [the challenged statute's] enforcement." Id.

5

at 434 (citations omitted). Such a direct injury has been found when

the challenged statute involves the expenditure of state tax revenues.

See Cammack v. Waihee, 932 F.2d 765, 769 (9th Cir. 1991). This

principle has been interpreted to justify finding that a municipal tax-

payer has standing in cases where the litigant's only injury is the

alleged improper expenditure of municipal funds. See id. at 770

("[W]e conclude that municipal taxpayer standing simply requires the

`injury' of an allegedly improper expenditure of municipal funds. . . .").3

Applying this standard, Koenick has standing as a taxpayer in

Montgomery County. In her complaint, Koenick alleges that she is

injured by the expenditures of her tax revenues towards the paid holi-

day on the Friday before and the Monday after Easter for public

school employees. It is undisputed that these tax revenues fund the

public school system in the County and thereby fund the paid, statu-

tory holidays for school employees such as that required by § 7-

103(c)(1)(iii). Because Koenick is a taxpayer who indirectly bears the

burden of funding a paid public school holiday around Easter, we find

that she has standing to pursue her appeal.

B.

Having found that Koenick has standing to bring this Establish-

ment Clause claim, we turn our attention to the merits of her appeal.

There is little confusion over the general concept behind the Estab-

lishment Clause; that it "was intended to erect a wall of separation

between Church and State." Everson v. Board of Educ., 330 U.S. 1,

16 (1947) (citation omitted). There is much confusion, however,

about how to apply this broad principle in specific cases. Tradition-

ally, Establishment Clause cases have been evaluated using the

Lemon test set out in Lemon.4 In more recent Establishment Clause

_________________________________________________________________

3 Although they concerned the display of religious symbols in public

settings, in both Suhre v. Haywood County, 131 F.3d at 1086, and Smith

v. County of Albemarle, 895 F.2d 953, 955 (4th Cir. 1990), we applied

an even more permissive standard, finding that noneconomic or intangi-

ble injuries may suffice to render an Establishment Clause claim justicia-

ble. See Suhre, 131 F.3d at 1086; Smith , 895 F.2d at 955.

4 The Lemon test provides that:

First, the statute must have a secular legislative purpose; second,

6

cases, however, the Supreme Court has employed several different

tests presented as either glosses on or replacements for the Lemon test;5

therein lies the confusion as to the applicable standard.

In the instant case, Koenick argued that § 7-103(c)(1)(iii) created

a facially unconstitutional denominational preference and therefore

should be subjected to strict scrutiny. See Hernandez, 490 U.S. at 695

(ruling that "when it is claimed that a denominational preference

exists, the initial inquiry is whether the law facially differentiates

among religions. If no such facial preference exists, we proceed to

apply the customary three-pronged Establishment Clause inquiry

derived from Lemon v. Kurtzman.") (citations omitted).

The district court properly rejected the applicability of strict scru-

tiny in this case. Strict scrutiny in the Establishment Clause context

is to be used to evaluate only those statutes that facially discriminate

between religious denominations or between religion and non-

religion. See Hernandez, 490 U.S. at 695. See generally Barghout v.

Bureau of Kosher Meat and Food Control, 66 F.3d 1337, 1346-49

(4th Cir. 1995) (Luttig, J., concurring). For example, if § 7-

103(c)(1)(iii) provided for a holiday only for followers of the Chris-

tian faith on the days around Easter, it would, on its face, discriminate

between denominations and be subject to strict scrutiny. But it does

not. Instead, the statute provides an annual holiday for all Montgom-

ery County public school students from which all students benefit

equally and thereby does not facially discriminate against any denom-

ination. We find, therefore, that § 7-103(c)(1)(iii) does not include a

_________________________________________________________________

its principal or primary effect must be one that neither advances

nor inhibits religion . . . ; finally, the statute must not foster an

excessive government entanglement with religion.

Lemon, 403 U.S. at 612-13 (citation omitted).

5 See Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680,

695 (1989) (citing Larson v. Valente, 456 U.S. 228, 246 (1982), which

holds that facial denominational preferences are evaluated under strict

scrutiny); Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (endorsement

test); Lee v. Weisman, 505 U.S. 577, 592 (1992) (coercion test);

Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S.

819, 839-41 (1995) (neutrality test).

7

facial denominational preference and thus should not be subjected to

strict scrutiny.

Finding that the instant case does not trigger strict scrutiny is only

the beginning of the inquiry, however. The question remains as to

what standard or test should be applied here. Heeding our conclusion

in Barghout, that "until the Supreme Court overrules Lemon and pro-

vides an alternative analytical framework, this Court must rely on

Lemon in evaluating the constitutionality of legislation under the

Establishment Clause," 66 F.3d at 1343 n.11, the district court applied

the Lemon test. We agree.

We conclude that the more recent Supreme Court cases have not,

"by implication, overruled an earlier precedent," Agostini v. Felton,

521 U.S. 203, 237 (1997), and that the general principles we have

relied on to evaluate Establishment Clause claims have not substan-

tively changed since the Lemon line of cases was decided. See

Agostini, 521 U.S. at 222-23 ("To be sure, the general principles we

use to evaluate whether government aid violates the Establishment

Clause have not changed.").6 On that basis, we will continue to evalu-

ate Establishment Clause cases using the Lemon test. See Granzeier,

173 F.3d at 573 (finding the endorsement test was a clarification of

the second prong of the Lemon test and not a completely different

analysis); Bridenbaugh, 1999 WL 517169, at *2 (interpreting Agostini

as reaffirming the continued viability of the three-part Lemon test).

See generally Columbia Union College v. Clarke, 159 F.3d 151, 158-

59 (4th Cir. 1998) (citing Agostini for the proposition that the

_________________________________________________________________

6 In Agostini, the Court reaffirmed its commitment to evaluating Estab-

lishment Clause cases using the same factors considered under the

Lemon test. See id. at 222-23, 232. The only explicit shift was in recog-

nizing that the factors used "to assess whether an entanglement is exces-

sive are similar to the factors we use to examine effect." Id. at 232

(emphasis deleted). Agostini also suggests that in some contexts the

entanglement inquiry be considered an aspect of the second "effect"

prong. See id. at 232-35. Like our sister circuits, however, we believe

that in the present context the two inquiries are best considered sepa-

rately. See Bridenbaugh v. O'Bannon, No. 98-3058, 1999 WL 517169,

at *2 (7th Cir. July 21, 1999); Granzeier v. Middleton, 173 F.3d 568,

572-76 (6th Cir. 1999).

8

Supreme Court warned lower courts against finding that the Court had

implicitly overruled its prior precedent).

C.

In Lemon, the Supreme Court created a three-part test for determin-

ing whether a state action violates the Establishment Clause. It

required that the state action possess a secular purpose, that the

action's primary effect was not the advancement of religion, and that

it did not result in an excessive entanglement between church and

state. See Lemon, 403 U.S. at 612-13 (citation omitted). If a state

action violates even one of these three prongs, that state action is

unconstitutional. See North Carolina Civil Liberties Union Legal

Found. v. Constangy, 947 F.2d 1145, 1147 (4th Cir. 1991).

Three other circuits have considered the question of whether the

creation of a statutory holiday around Easter violates the Establish-

ment Clause. In Cammack, the Ninth Circuit reasoned that since Good

Friday has become secularized in Hawaii, the state could declare it a

holiday without violating the Establishment Clause. 932 F.2d at 769.

In Bridenbaugh, the Seventh Circuit examined an Indiana statute

declaring Good Friday a paid holiday for state employees. 1999 WL

517169. After finding that Indiana presented several legitimate secu-

lar purposes for the holiday, none of which had the effect of advanc-

ing religion, the court ruled the Good Friday holiday statute

constitutional. See id. at *7. Finally, in Granzeier, the Sixth Circuit

found that a statute closing various courts and administrative offices

on Good Friday was not unconstitutional because it was enacted for

the legitimate, secular purpose of giving state and county employees

the day off on a convenient and low traffic day. 173 F.3d at 574-76.

1.

To be constitutional, a state action must have a"clearly secular pur-

pose." Wallace v. Jaffree, 472 U.S. 38, 56 (1985). It need not, how-

ever, be entirely secular, see id., but if there is no evidence of a

legitimate, secular purpose, then the statute must fail. See Lynch, 465

U.S. at 690. We are "reluctan[t] to attribute unconstitutional motives

to the States, particularly when a plausible secular purpose for the

State's program may be discerned from the face of the statute,"

9

Mueller v. Allen, 463 U.S. 388, 394-95 (1983), but "it is required that

the statement of such purpose be sincere and not a sham." Edwards

v. Aguillard, 482 U.S. 578, 586-87 (1987). When determining

whether a statute retains a secular purpose, we look not to the purpose

of the statute when enacted, but at its contemporary purpose. See

McGowan v. Maryland, 366 U.S. 420, 431 (1961).

As we noted in Barghout, the "first prong[of the Lemon test] . . .

is a fairly low hurdle," 66 F.3d at 1345, one we believe § 7-103

clears. The Board contends that closing schools on the Friday before

and the Monday after Easter is necessary because of the high rate of

absenteeism expected on these days among students and teachers.

Such absences, it argues, disrupt the effectiveness of instruction and

require an increased monetary outlay for the hiring of substitute

teachers, wasting valuable and limited educational resources. Bolster-

ing its argument, the Board insists that this is the same reason it closes

schools on the Jewish holidays of Yom Kippur and Rosh Hashanah.

The district court was persuaded that § 7-103(c)(1)(iii) was sup-

ported by this contemporary, pragmatic, secular purpose and so are

we. The Board's desire to economize scarce educational resources

that are wasted when classes are held on days with a high rate of

absenteeism provides a plausible secular purpose for closing school

for a four day holiday around Easter. Therefore, we are persuaded that

§ 7-103 has a contemporary and legitimate secular purpose sufficient

to satisfy the first prong of the Lemon test.

Koenick argued that although there was actual evidence supporting

the Board's decision to close school for the aforementioned reasons

on the two Jewish holidays, there was no comparable evidence to sup-

port closing around Easter. She suggested that a simple survey could

be taken to show how many students intend to be absent on these

days; without which Koenick argued, there is no evidence that such

factors justify the granting of this holiday.

We find this suggestion untenable. This statutory four-day holiday

around Easter has been a part of the Montgomery County Public

School Calendar for 130 years. It has become part of the school com-

munity's expectations and plans, and because it is also the anchor

around which the longer spring vacation is scheduled, such a survey

10

would probably yield the exact results the Board asserts, if for no

other reason than that people expect to have these days off and have

planned accordingly. We do not believe that the Board should be

required to conduct such a survey to show that high absenteeism and

decreased instructional effectiveness would result from holding

classes on the days surrounding Easter weekend. We are persuaded

that the four-day holiday around Easter is supported by a pragmatic,

legitimate, secular purpose.7

2.

Having found that § 7-103(c)(1)(iii) has a secular purpose and sat-

isfies the first prong of the Lemon test, we consider whether the stat-

ute satisfies the second prong. With this prong, we must determine if

§ 7-103(c)(1)(iii) has the principal or primary effect of advancing or

inhibiting religion. The Government may, through speech and actions,

recognize religion or a religious holiday, see Lynch, 465 U.S. at 676,

_________________________________________________________________

7 We note that we find nothing in the record or otherwise that indicates

that Easter, the holiest day in all of Christendom, is, as the district court

concluded, "a highly secularized holiday." The anecdotal evidence in the

record before us concerning the secularization of Easter proves nothing.

Neither Koenick's reliance on the deeply religious aspects of Easter for

practicing Christians nor the Board's recitation of the many seemingly

secular events surrounding the day evidence the level of secularization

of the holiday. See Lynch v. Donnelly, 465 U.S. 668, 675, 685-86 (1984)

(Christmas does not have to lose its religious significance for believers

in order to be considered a secular holiday); County of Allegheny v.

ACLU, 492 U.S. 573, 633 (1980) (O'Connor, J., concurring) ("The Eas-

ter holiday celebrated by Christians may be accompanied by certain `sec-

ular aspects' such as Easter bunnies and Easter egg hunts; but it is

nevertheless a religious holiday."). What is necessary to prove Easter's

secularization is evidence of the numbers of persons who observe the

holiday in a purely secular way -- that is, the number of persons for

whom the holiday has no religious significance but who nonetheless cel-

ebrate the occasion in some manner. See, e.g., County of Allegheny, 492

U.S. 585, 616-17 (noting that many Americans have a Christmas tree in

their home or otherwise celebrate Christmas or Chanukah "without

regard to [their] religious significance"). This record is devoid of such

evidence. Accordingly, unlike the district court, we do not base our hold-

ing on a finding that Easter is a secular holiday.

11

but it may not overtly endorse a religion, or religion in general. See

Capitol Square Review and Advisory Bd. v. Pinette , 515 U.S. 753,

764-65 (1995). A statute whose primary effect is to advance a secular

purpose, rather than a religious one, is still constitutional even if it

conveys an incidental benefit to those of a specific religion. See

McGowan, 366 U.S. at 445; Lynch, 465 U.S. at 683 ("[N]ot every law

that confers an indirect, remote, or incidental benefit upon [religion]

is, for that reason alone, constitutionally invalid.") (citations omitted).

Koenick argued that by establishing a four-day holiday around Easter,

the statute has the effect of advancing and endorsing Christianity over

other faiths. We cannot agree. Section 7-103 provides a four-day holi-

day for all of the Montgomery County public school children and

teachers, not just followers of Christianity. By expressing no prefer-

ence toward the practitioners of any one faith over any other, the four-

day holiday around Easter does not endorse or advance a particular

religion or religion generally. Section 7-103(c)(1)(iii) does not grant

an added benefit to members of one faith that it does not grant to

everyone, but rather treats all of the affected parties the same with

respect to religion, and thereby does not impermissibly advance reli-

gion.

Further, by simply giving students and teachers a school holiday

around Easter, § 7-103 does not mention or imply that the holiday is

to be spent attending religious services in recognition of this Christian

holy day. The statute merely gives people the days off to spend as

they like. Although the statute makes it possible for students and

teachers to attend services around Easter, it in no way promotes or

advances this cause. Similarly, the Board has a policy of granting stu-

dents and teachers excused absences to attend religious services in

recognition of holy days in their own religions; however, by doing so

there is no insinuation that such a policy advances any religion over

another. See Granzeier, 173 F.3d at 575-76 (finding that when school

districts with a large Jewish population close school for Jewish holy

days it does not result in the impermissible establishment of the Jew-

ish religion but rather constitutes a secular recognition of the practi-

calities of school attendance).

Koenick also argued that, by making the Friday before and the

Monday after Easter a holiday, § 7-103 makes it easier for Christians

12

to practice their faith than for others, thereby advancing Christianity.

We disagree.

The Supreme Court has stated repeatedly that a statute does not

automatically violate the Establishment Clause simply because it con-

fers an incidental benefit upon religion. See Lynch, 465 U.S. at 683.

Koenick is essentially arguing that followers of the Christian faith

receive an incidental benefit because § 7-103 makes their observance

of Good Friday easier, and disregarding the fact that all of the other

students benefit equally from the four-day holiday. As stated by the

Court, that is not enough to render § 7-103 invalid on grounds that it

impermissibly advances religion. Because all Montgomery County

students and teachers benefit equally from the four-day holiday and

because the statute does not encourage or require students to attend

religious services, we do not believe that § 7-103 runs afoul of the

second prong of the Lemon test.

3.

Finally, to satisfy the third prong of the Lemon test we must deter-

mine whether this statute leads to an "excessive government entangle-

ment with religion." Lemon, 403 U.S. at 613. The Supreme Court has

held that "[e]ntanglement is a question of kind and degree," Lynch,

465 U.S. at 684, and because some interaction between church and

state is inevitable, the Supreme Court has reaffirmed that the

"[e]ntanglement must be `excessive' before it runs afoul of the Estab-

lishment Clause." Agostini, 521 U.S. at 233.

In the past, the Supreme Court has found excessive entanglement

in cases involving a state salary supplement to teachers in parochial

schools. See Lemon, 403 U.S. at 615-22. In contrast, in Agostini, the

Court found that a federally funded program where public school

teachers provide remedial instruction to children in parochial schools

on a neutral basis did not result in an excessive entanglement of gov-

ernment with religion. 521 U.S. at 233-35. See also Lynch, 465 U.S.

at 684 (finding that because no city money was spent to maintain a

challenged creche display, and no contact between the city and the

church was required, there was no impermissible enduring entangle-

ment of church and state).

13

Koenick argued that § 7-103(c)(1)(iii) implicitly involves the

Board in religious matters by requiring it to participate in an ongoing,

intra-faith controversy over the actual date on which Easter is to be

celebrated annually. Koenick reasons that, by enforcing § 7-

103(c)(1)(iii), the Board has become embroiled in a religious contro-

versy between the Roman Catholic and Protestant Christian denomi-

nations and the various Eastern Orthodox denominations who

celebrate Easter on different days; she insists that because the statute

does not define Easter, every year the Board has to calculate when the

holiday occurs and that determination constitutes an excessive entan-

glement. We disagree.

The Board showed that it consults commercially printed calendars

to determine the date of Easter each year. This task certainly causes

the Board to interact with religion, but it does not constitute an exces-

sive entanglement. The Board does not have to consult with the Cath-

olic or Protestant Churches to determine the date of Easter each year.

Nor is it required to be involved in any church-related activities or

provide any funding for churches or religious events. In Agostini, the

Court ruled that even programs where public school teachers were

paid with federal funds to teach disadvantaged children in parochial

schools did not cause an excessive entanglement between church and

state. See 521 U.S. at 234-35. Given the Agostini standard, and the

lack of evidence that § 7-103(c)(1)(iii) creates any entanglement

between the Board and any religion, we find that the provision of a

four-day holiday around Easter does not cause the Board to become

impermissibly and excessively entangled with religion.

III.

In summary, the Board's recognition and enforcement of § 7-103

does not run afoul of any of the factors set out in the Lemon test: It

is supported by a pragmatic, legitimate, secular purpose, it does not

advance or inhibit religion, and it does not result in an excessive

entanglement with religion.

For the foregoing reasons, we agree that Md. Code Ann., Educ.

§ 7-103(c)(1)(iii) does not violate the Establishment Clause of the

First Amendment. The judgment of the district court is thereby

AFFIRMED.

14