# Skoros v. City of New York

> Court of Appeals for the Second Circuit · February 2, 2006 · 437 F.3d 1

URL: https://www.frixlaw.com/law-library/cases/8409879

## Case

- **Full name:** Andrea SKOROS, individually, and next friend of Nicholas Tine, a minor and Christos Tine, a minor v. CITY OF NEW YORK, Joel L. Klein, in his official capacity as Chancellor, New York City Department of Education, and Sonya Lupion, individually, and in her official capacity as Principal, Edith K. Bergtraum School, New York City Department of Education
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** February 2, 2006
- **Citations:** 437 F.3d 1; 2006 U.S. App. LEXIS 2579; 2006 WL 240709
- **Precedential status:** Published
- **Opinion:** Concurring in part by Straub
- **Judges:** Feinberg, Raggi, Straub
- **Cited by:** 113 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8409879

## How later opinions describe it (automated extraction)

- explaining that each prong of Lemon analysis is informed by Supreme Court’s refinements in McCreary Cnty. v. ACLU, 545 U.S. at 861-66, 125 S.Ct. 2722; County of Allegheny v. ACLU, 492 U.S. 573, 592-94, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), abrogated on other grounds by Town …
- explaining that McCreary County requires courts to engage in two separate inquiries: the first is to consider the government's "actual purpose” and the second is to consider "how the government's purpose is perceived by an objective observer”
- rejecting Establishment Clause challenge to Board of Education’s refusal to allow creche display along with menorah, Christmas tree, and other symbols of year-end holidays, while recognizing “possibility that, in some circumstances, a government’s deliberate exclusion of the r…
- noting that 11 protected activities include filing a “complaint, an answer, a counterclaim and other assorted 12 || documents and pleadings, in which plaintiffs or defendants make representations and present E 13 arguments to support their request that the court do or not do s…
- noting that “the reasonable objective observer standard” is “subject to criticism” but that, like other aspects of Lemon: “until the Supreme Court rules otherwise, we are not free to discard or recast the reasonable objective observer test”

## Opinion text

STRAUB, Circuit Judge,
concurring in part and dissenting in part.
Today, the majority approves a policy directed at the participation of public school children in a year-end holiday celebration that utilizes religious symbols of certain religions, but bans the religious symbol of another. As I do not understand the law to countenance such in respect of the most impressionable of our society, I respectfully dissent from the majority’s decision on the Establishment Clause claim asserted by Plaintiff Andrea Skoros (“Skoros”). I concur, however, in the majority’s affirmance of the District Court’s rejection of Skoros’s Free Exercise and parental rights claims.
I. Establishment Clause Claim
It is my view that the policy of the New York City Department of Education *43 (“DOE”) to arrange for the children to celebrate the holiday season in schools through the use of displays and activities that include religious symbols of the Jewish holiday of Chanukah and the Muslim commemoration of Ramadan, but starkly exclude any religious symbols of the Christian holiday of Christmas, fails under the endorsement prong of the Lemon test, both on its face and as applied. My chief disagreement with the majority is as to the “reasonable observer” in this case. It is my view that we must view the displays and celebrations from the perspective of elementary or secondary school students in the New York City public school system, as well as from the perspective of parents of such students who experience the displays through and with their children and who have knowledge of the history and context of the policy and displays. In failing to examine the displays and celebrations from the perspective of the students, the majority pays only lip service, and indeed, effectively turns a blind eye, to the significant impact of the students’ impressionability and youth.
Keeping those two relevant factors in mind, and erring on the side of protecting such children in the face of less-than-clear Supreme Court precedent, I would hold that the policy and displays send the message of endorsement of Judaism and Islam to a reasonable student observer. I would also hold that the displays convey to a reasonable parent observer that Judaism and Islam are favored and that Christianity is disfavored. Furthermore, I would also hold that the DOE’s policy risks excessive entanglement inasmuch as it adopts an official State position on a point of religious doctrine by defining a menorah and star and crescent as secular symbols, and a “creche” as “purely religious.”
A. Background
The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion .... ” U.S. Const, amend I. This prohibition applies to the states through the Fourteenth Amendment. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 , 120 S.Ct. 2266 , 147 L.Ed.2d 295 (2000). As the majority notes, the Supreme Court precedent dealing with the Establishment Clause is marked by “frequently splintered Supreme Court decisions,” ante at [13], and the Court’s members “have rarely agreed — in either analysis or outcome — in distinguishing the permissible from the impermissible public display of symbols having some religious significance,” ante at [13]. Two recent decisions of the Supreme Court, Van Orden v. Perry, — U.S. -, 125 S.Ct. 2854 , 162 L.Ed.2d 607 (2005), and McCreary County v. ACLU of Kentucky, - U.S. -, 125 S.Ct. 2722 , 162 L.Ed.2d 729 (2005), examining the constitutionality of two public displays of the Ten Commandments, constitute the Court’s latest pronouncements on the Establishment Clause.
In Van Orden , the plurality explicitly declined to disavow completely the “test” set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-13 , 91 S.Ct. 2105 (1971), which provides that a court examining whether a governmental practice violates the Establishment Clause must consider: (1) whether the challenged practice has a secular purpose, (2) whether the practice either advances or inhibits religion in its principal or primary effect, and (3) whether the practice fosters excessive government “entanglement” with religion. That said, the plurality in Van Orden held that the Lemon test was “not useful in dealing with the sort of passive monument” as the Ten Commandments display at issue there. 125 S.Ct. at 2861. According to the plurality, the analysis in such a case should be *44 driven “both by the nature of the monument and by our Nation’s history.” Id. Examining the Texas display in such context, including, e.g., the role played by the Ten Commandments in our Nation’s history, the plurality concluded that the State of Texas did not violate the Establishment Clause by its display of the Ten Commandments monument on the grounds of its capítol. Id. at 2864.
The plurality emphasized, however, that the public classroom presents a different context. The plurality distinguished the “passive use” of the Ten Commandments text by the State of Texas from the impermissible use of the text by the State of Kentucky in Stone v. Graham, 449 U.S. 39 , 101 S.Ct. 192 , 66 L.Ed.2d 199 (1980) (per curiam), where displays of the Ten Commandments in public schools “confronted elementary school students every day.” Id. at 2864.
Justice Breyer, in a concurring opinion that created a majority as to the result, emphasized that “no single mechanical formula ... can accurately draw the constitutional line in every case,” id. at 2868 (Breyer, J., concurring in the judgment), and that “[wjhile the Court’s prior tests provide useful guideposts ... no exact formula can dictate a resolution to such fact-intensive cases,” id. at 2869 (internal citation omitted). Justice Breyer noted that the text of the Ten Commandments “undeniably has a religious message,” but cautioned that “focusing on the text of the Commandments alone cannot conclusively resolve th[e] case.” Id. Rather, Justice Breyer stated, the display ought be examined for “how the text [of the Ten Commandments] is used,” which inquiry requires us to “consider the context of the display.” Id. Justice Breyer concluded that the “circumstances surrounding the display’s placement on the capítol grounds and its physical setting suggest that the State” intended the monument’s non-religious message “to predominate.” Id. at 2870. Justice Breyer also found it significant that “40 years [had] passed in which the presence of this monument, legally speaking, went unchallenged.” Id. According to Justice Breyer, “those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort” to favor, engage in, compel, or deter, religion. Id. Justice Breyer also emphasized that the display in Van Orden presented a much different context than one “on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state.” Id. at 2871 .
In McCreary County v. ACLU of Kentucky, — U.S. -, 125 S.Ct. 2722 , 162 L.Ed.2d 729 (2005), Justice Souter, writing for the majority, also explicitly declined the petitioners’ request to abandon the Lemon test, id. at 2734-35, and instead applied Lemon in that case and found that the Ten Commandments display at issue violated the Establishment Clause insofar as it failed the first prong of the Lemon test, i.e., the display was created with a religious purpose. The Court held that “the development of the presentation” should be considered in determining the purpose of a display, id. at 2728, and noted that the county’s initial decision to install the Ten Commandments display, and later decision to amend the display, were undertaken with the impermissible intent to advance religion. Id. at 2738-40. The Court also found that the stated secular purpose of the final iteration of the display was presented merely as “a litigating position” and did not “repeal[ ] or otherwise repudiate[ ]” the initial purposes. Id. at 2740.
*45 In light of the foregoing, I find it appropriate in the instant case to apply the Lemon test, with some concern for the display’s “context.” The Supreme Court’s recent opinions indicate that an examination of the purpose of a display, see McCreary County, 125 S.Ct. at 2732 , and its particular context, see Van Orden, 125 S.Ct. at 2869-70 (Breyer, J., concurring in the judgment), are relevant considerations under the Establishment Clause, and that the Lemon test is still viable, see McCreary County, 125 S.Ct. at 2734-35 , although there is “no test-related substitute for the exercise of legal judgment,” Van Orden, 125 S.Ct. at 2869 (Breyer, J., concurring in the judgment).
As the majority notes, under Lemon , a court examining whether a governmental practice violates the Establishment Clause must consider: (1) whether the challenged practice has a secular purpose, (2) whether the practice either advances or inhibits religion in its principal or primary effect, and (3) whether the practice fosters excessive government “entanglement” with religion. See Elewski v. City of Syracuse, 123 F.3d 51, 55 (2d Cir.1997). The second prong is an “endorsement” test, which asks whether “a reasonable observer of the display in its particular context [would] perceive a message of governmental endorsement or sponsorship of religion.” See id. at 53 ; see also County of Allegheny v. ACLU, 492 U.S. 573, 593 , 109 S.Ct. 3086 , 106 L.Ed.2d 472 (1989) (the Establishment Clause “ ‘precluded] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred ’ ” (quoting Wallace v. Jaffree, 472 U.S. 38, 70 , 105 S.Ct. 2479 , 86 L.Ed.2d 29 (1985) (O’Connor, J., concurring in the judgment))); Lynch v. Donnelly, 465 U.S. 668, 687 , 104 S.Ct. 1355 , 79 L.Ed.2d 604 (1984) (O’Con-nor, J., concurring) (the Establishment Clause prohibits “making adherence to a religion relevant in any way to a person’s standing in the political community”).
The endorsement test “‘necessarily focuses upon the perception of a reasonable, informed observer [who] must be deemed aware of the history and context of the community and forum in which the religious display appears.’ ” Elewski, 123 F.3d at 54 (alteration in original) (quoting Creatore v. Town of Trumbull, 68 F.3d 59, 61 (2d Cir.1995) (internal quotation marks omitted)). The endorsement test “requires careful and often difficult linedrawing and is highly context specific.” Allegheny, 492 U.S. at 631 , 109 S.Ct. 3086 (O’Connor, J., concurring in part and concurring in the judgment); see also id. at 597 , 109 S.Ct. 3086 (“[T]he effect of the government’s use of religious symbolism depends upon its context.... [0]ur present task is to determine whether the display of the creche and the menorah, in their respective ‘particular physical settings,’ has the effect of endorsing or disapproving religious beliefs.”). As the Supreme Court stated in Lynch , “[i]n each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed.” 465 U.S. at 678 , 104 S.Ct. 1355 . We noted in Altman v. Bedford Central School District, 245 F.3d 49 (2d Cir.2001), that, in analyzing an Establishment Clause claim in the public school context, we must also consider whether the government is “ ‘coercfing] anyone to support or participate in religion or its exercise.’ ” Id. at 75 (quoting Santa Fe, 530 U.S. at 302 , 120 S.Ct. 2266 (quoting Lee v. Weisman, 505 U.S. 577, 587 , 112 S.Ct. 2649 , 120 L.Ed.2d 467 (1992))).
As noted in the plurality opinion in Van Orden and in Justice Breyer’s concurrence, the “context” of a display matters significantly. Indeed, in Edwards v. Aguillard, 482 U.S. 578 , 107 S.Ct. 2573 , 96 L.Ed.2d 510 (1987), the Court counseled that we must be
*46 particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the students and his or her family. Students are impressionable and their attendance is involuntary.... [T]he public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the state is it more vital to keep out divisive forces than in its schools.
Id. at 583-84 , 107 S.Ct. 2573 (internal citations and quotation marks omitted).
B. Analysis
Employing the Lemon analysis and keeping in mind the Court’s directive in Edwards , I find that the DOE’s policy and the attendant displays and celebrations violate the Establishment Clause. This conclusion is informed by the fact that the Supreme Court precedent dealing with the Establishment Clause is marked by, as the majority concedes, “frequently splintered Supreme Court decisions,” ante at [13], and a less-than-clear statement of the law that results in courts analyzing such displays using what one Justice characterized as “little more than intuition and a tape measure,” Allegheny, 492 U.S. at 675 , 109 S.Ct. 3086 (Kennedy, J., concurring in the judgment in part and dissenting in part). Indeed, the fine line-drawing and potential for error in an Establishment Clause analysis requires that we err on the side of protecting New York City schoolchildren from ‘any suggestion that the State disapproves of their religion.
I begin my analysis with the first factor in the Lemon inquiry, purpose.
1. Purpose
I agree with the majority that the DOE’s asserted purpose in effectuating the Holiday Display Memorandum, i.e., to celebrate the secular holiday season, is a secular one, see Lynch, 465 U.S. at 681 , 104 S.Ct. 1355 (finding intent to celebrate the secular holiday season to be a “legitimate secular purpose[ ]”)J 1 also agree that this claimed purpose is not a sham. Thus, to the extent that the first prong of the Lemon test inquires into the State’s “actual purpose” and its “subjective” intent to communicate á particular message, id. at 690 , 104 S.Ct. 1355 (O’Connor, J., concurring), I would agree that the defendants do not run afoul of the first prong.
On the other hand, as noted by the majority, the Supreme Court’s recent decision in McCreary may suggest a shift in the inquiry, insofar as it states that purpose should be determined by an “objective observer.” See McCreary, 125 S.Ct. at 2734-35 . If, following McCreary, the question focuses more on the government’s intent as perceived by an “objective” or “reasonable” observer in the community, my conclusion as to purpose would be different. As explained below with respect to the second Lemon factor, I would find that, however the “objective observer” is defined, the observer would perceive the school’s intent as conveying a message about religion and as a celebration of religious holidays, rather than as a celebration of the secular holiday season. Ultimately, however, I believe these concerns are bet *47 ter addressed under the second prong of the Lemon test, which inquires into the effect of the display on its observers and “whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.” Lynch, 465 U.S. at 690 , 104 S.Ct. 1355 (O’Connor, J., concurring).
2. Endorsement and the Effects Inquiry
As explained above, the second inquiry of the Lemon test is designed to prevent government practices that “have the effect of communicating a message of government endorsement or disapproval of religion,” and that have the effect, “whether intentionally or unintentionally, [of] mak[ing] religion relevant, in reality or public perception, to status in the political community.” Id. at 692 , 104 S.Ct. 1355 . With respect to the effects inquiry, I depart from the majority on two points: (a) how to identify the relevant reasonable observers; and (b) whether the message conveyed is fairly understood as an endorsement or disapproval of certain religions.
a. The Reasonable Observer
As the majority notes, the Supreme Court in Allegheny adopted the endorsement test proposed by Justice O’Connor in Lynch , making the relevant question for the second prong of Lemon inquiry whether a particular display, in context, “has the effect of endorsing or disapproving religious beliefs.” County of Allegheny v. ACLU, 492 U.S. 573, 597 , 109 S.Ct. 3086 , 106 L.Ed.2d 472 (1989). In her concurrence in Allegheny , Justice O’Connor further described the endorsement test in terms of “a reasonable observer [who] evaluates whether a governmental practice conveys a message of endorsement of religion.” Id. at 630 , 109 S.Ct. 3086 (O’Connor, J., concurring in part and concurring in the judgment). Following Allegheny , Justice O’Connor recognized a “fundamental point of departure” concerning “the test’s reasonable observer” who evaluates the message conveyed. Capitol Square Review & Adv. Bd. v. Pinette, 515 U.S. 753, 778 , 115 S.Ct. 2440 , 132 L.Ed.2d 650 (1995) (O’Connor, J., concurring in part and concurring in the judgment) (internal quotation marks omitted). The endorsement test, Justice O’Connor explained, should not “focus on the actual perception of individual observers, who naturally have differing degrees of knowledge.” Id. at 779 , 115 S.Ct. 2440 . Instead, “the endorsement test creates a more collective standard to gauge ‘the “objective” meaning of the [government’s] statement in the community.’ ” Id. (alteration in original) (quoting Lynch, 465 U.S. at 690 , 104 S.Ct. 1355 ). The applicable observer is “a personification of a community ideal of reasonable behavior determined by the collective social judgment.” Id. at 780 , 104 S.Ct. 1355 (alteration and internal quotation marks omitted). In that regard, Justice O’Connor explained that “the reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious display appears.” Id.
The focus of Justice O’Connor’s reasoning, however, was on avoiding the possibility that a practice may be struck down “simply because a particular viewer of a display might feel uncomfortable.” Id. The endorsement test remains grounded in the “essential command of the Establishment Clause”: preventing government from “makfing] a person’s religious beliefs relevant to his or her standing in the community,” and from “sending a clear message” to individuals that “they are outsiders or less than full members of the political community.” Allegheny, 492 U.S. at 627 , 109 S.Ct. 3086 (O’Connor, J., con *48 curring in part and concurring in the judgment). To this extent, the perspective of a “reasonable observer” must depend upon “ ‘the community and forum in which the religious display appears.’ ” Elewski, 123 F.3d at 54 (quoting Creatore, 68 F.3d at 61 (internal quotation marks omitted)). That is, although we will imbue the observer with certain degrees of reasonableness and levels of .knowledge, we must not lose focus on who is actually the recipient of the message conveyed and how that message will affect such a recipient.
Thus, in Santa Fe Independent School District v. Doe, 530 U.S. 290 , 120 S.Ct. 2266 , 147 L.Ed.2d 295 (2000), as the majority concedes, the Supreme Court viewed the alleged Establishment Clause violation from the perspective of an objective high school student. See id. at 307 , 120 S.Ct. 2266 (“[T]he expressed purposes of the policy encourage the selection of a religious message, and that is precisely how the students understand the policy.” (emphasis added)); id. at 308 , 120 S.Ct. 2266 (“[A]n objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval.” (emphasis added)). There, the court found unconstitutional under the Establishment Clause a pre-football game prayer led by a high school student who was elected student council chaplain insofar as the activity had a religious purpose and “the members of the listening audience must perceive the pre-game message as a public expression of the views of the majority of the student body delivered with the approval of the school administration.” Id. at 308 , 120 S.Ct. 2266 . The Court also cast schoolchildren as the reasonable observers in Board of Education of Westside Community Schools (District 66) v. Mergens, 496 U.S. 226, 249-52 , 110 S.Ct. 2356 , 110 L.Ed.2d 191 (1990) (examining whether “an objective observer in the position of a secondary school student will perceive official school support for ... [on-campus] religious meetings”), and other courts have done so as well, see, e.g., Kitzmiller v. Dover Area School Dist., 400 F.Supp.2d 707, 715, 722-23 (M.D.Pa.2005) (viewing curriculum of intelligent design from the perspective of schoolchildren for purposes of determining Establishment Clause violation); Verbena United Methodist Church v. Chilton County Bd. of Educ., 765 F.Supp. 704, 711 (M.D.Ala.1991) (“In cases involving schoolchildren, the operative inquiry is whether an ‘objective observer’ in the position of a student of the relevant age would ‘perceive official school support’ for the religious activity in question.” (quoting Mergens, 496 U.S. at 249 , 110 S.Ct. 2356 )). The perspective of a student is relevant in both an endorsement inquiry and in an examination of a practice’s coercive potential. Compare Santa Fe, 530 U.S. at 307-10 , 120 S.Ct. 2266 (examining whether students would perceive school endorsement of religious prayer at football game), and Mergens, 496 U.S. at 249-52 , 110 S.Ct. 2356 (examining whether students would perceive school endorsement of religion by meetings of religious student groups on school grounds), with Santa Fe, 530 U.S. at 310 , 120 S.Ct. 2266 (examining whether dissenting students would feel coercion to participate in religious observances), and Lee, 505 U.S. at 593 , 112 S.Ct. 2649 (considering the perspective of “the dissenter of high school age” in determining whether graduation ceremony coerced religious exercise).
In this case, the primary audience is the schoolchildren “for whose benefit these displays are created” and who “have no option but to view them and, sometimes, participate in the craft projects integral to many of the displays.” Ante at [-]. Given that they are the most direct ob *49 servers of the displays and participants in the celebrations, I believe that we must inquire into the effect of the policy and displays on reasonable elementary and secondary schoolchildren. 2
The majority, in contrast, frames the reasonable observer as “an adult who is aware of the history and context of the community and forum in which the religious display appears, and who understands that the display of a religious symbol in a school context may raise particular endorsement concerns, because of the pressure exerted on children by the law of imitation.” Ante at [30-31] (internal citations and quotation marks omitted). The majority takes this approach largely because, it says, “it makes no sense at the effect step to view a kindergarten child or first grader as someone ‘fully cognizant of the history, ubiquity, and context of the practice in question,’ ” id. at [30] (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 34-35 , 124 S.Ct. 2301 , 159 L.Ed.2d 98 (2004) (O’Connor, J., concurring in the judgment)), and because “of the range of the students to whom the challenged display policy applies,” ante at [30]. The majority cites Good News Club v. Milford Central School, 533 U.S. 98 , 121 S.Ct. 2093 , 150 L.Ed.2d 151 (2001), as analogous, but that case merely holds that we must view “coercive pressure” to engage in after-school activities from the perspective of the parents of elementary school students, rather than from the students’ perspective, where those activities required parental consent for participation. See id. at 115 , 121 S.Ct. 2093 (“It is the parents who choose whether their children will attend the Good News Club meetings. Because the children cannot attend without their parents’ permission, they cannot be coerced into engaging in Good News Club’s religious activities.”). Here, in contrast, the displays are exhibited during school hours and may be viewed without parental consent, as with the celebrations.
Furthermore, the majority determines the reasonable observer in a backwards fashion. I understand Justice O’Connor’s “reasonable observer” inquiry as imputing certain levels of knowledge and reasonableness where appropriate for the intended audience. The majority, however, defines the applicable observer not according to the primary audience, but according to who would have the typical levels of knowledge.
While I acknowledge that it is difficult to impute awareness of history and culture to children, I cannot see how or why we should conduct an effects test that does not examine the effects on the most direct observers. Moreover, the effects inquiry must take into account the context of the displays. See Allegheny, 492 U.S. at 597 , 109 S.Ct. 3086 ; Elewski, 123 F.3d at 54 . In this case, a crucial aspect of the context is that the displays are in elementary schools and are directed at children who lack a broader knowledge of history and culture. See Lee v. Weisman, 505 U.S. 577, 597 , 112 S.Ct. 2649 , 120 L.Ed.2d 467 (1992) (explaining that “[o]ur Establishment Clause jurisprudence remains a delicate and fact-sensitive one,” and that prior precedent “requires us to distinguish the public school context”). Indeed, it is particularly because of a child’s lack of broad *50 er knowledge — and thus the lack of a broader ability to contextualize and analyze a display — that children are uniquely vulnerable to government messages of endorsement or disapproval. See id. at 592 , 112 S.Ct. 2649 (“[T]here are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”); Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390 , 105 S.Ct. 3216 , 87 L.Ed.2d 267 (1985) (explaining that the effects inquiry “must be conducted with particular care when many of the citizens perceiving the governmental message are children in their formative years ... [because their] experience - is limited and [their] beliefs consequently are the function of environment as much as of free and voluntary choice”), overruled on other grounds, Agostini v. Felton, 521 U.S. 203 , 117 S.Ct. 1997 , 138 L.Ed.2d 391 (1997); Brandon v. Board of Ed. of Guilderland Cent. Sch. Dist., 635 F.2d 971, 978 (2d Cir.1980) (“To an impressionable student, even the mere appearance of secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular religious creed. This symbolic inference is too dangerous to permit.... Misconceptions over the appropriate roles -of church and state learned during one’s school years may never be corrected.” (citations omitted)); Selman v. Cobb County School Dist., 390 F.Supp.2d 1286, 1311 (N.D.Ga.2005) (holding that sticker on textbook providing that evolution was theory was likely to convey a message of endorsement “given the Sticker’s intended audience, impressionable school students”); Joki v. Bd. of Educ., 745 F.Supp. 823 , 831 (N.D.N.Y.1990) (emphasizing impressionability of children in holding that display of painting with religious theme in high school auditorium had effect of conveying message of endorsement of religion). Indeed, Justice Black-mun stated that the outcome in Allegheny might have been different had it involved a-public school, and he refused to hold that “the combined display of a Christmas tree and a menorah is constitutional wherever it may be located on government property. For example, when located in a public school, such a display might raise additional constitutional considerations.” Allegheny, 492 U.S. at 620 n. 69, 109 S.Ct. 3086 . It is precisely those additional constitutional considerations that concern me in this case. Indeed, as the majority at bottom concedes, the impressionability of the child is paramount here.
In light of the foregoing, I believe that we must view the displays and celebrations from the perspective of the students in the relevant elementary and secondary public schools. And, as will be explained below, I believe that a reasonable schoolchild would view the displays and celebrations as conveying endorsement of the religious holidays depicted- — Chanukah and Ramadan-— rather than a general celebration of a secular holiday season.
I also believe, however, that schoolchildren are not the only relevant observers in this case. The displays’ messages are also conveyed to the children’s parents both directly (upon, for example, a parent’s visit to the school), and indirectly, as parents hear about the holiday programs and celebrations through their children and assist them in creating presentations for display at school. As with the children, the parents make up the “community” of the school, and thus I believe we should also inquire into the effect on a reasonable parent. This “reasonable parent observer” is not the same hypothetical non-student “adult” observer identified by the majority. The majority’s hypothetical non-student “adult” observer is not an “observer” at all, or rather, is an observer once removed. That is, the observer speculates
*51 as to how a child would observe the display and then purports to give its own “observation” of what it thinks a child would “observe.” A court must, however, consider the display in its particular “context” and “community”; it must take care not to impose its own perspective on the hypothetical reasonable person. Here, therefore, a parent of a student is the relevant adult observer. The reasonable parent observer is certainly more informed of the history and cultural context underlying the policy and displays than the reasonable student observer. For reasons explained fully below, it is my view that a reasonable parent observer, viewing the displays as depicting religious iconography of Judaism and Islam but as conspicuously excluding the religious — as opposed to purely secular — -symbols of Christmas, would perceive the displays as sending the message that Judaism and Islam are favored and that Christianity is disfavored.
b. Analyzing the Effect
The DOE’s policy purports to allow public schools to celebrate the secular holiday season and commemorate that season with certain decor. The policy by its terms limits that decor to what it defines as “secular” symbols, including without limitation a Christmas tree, a menorah, and a star and crescent. The DOE also concedes that it interprets the policy to prohibit the display of a nativity scene or creche and characterizes such a symbol as “purely religious.” Appellees’ Brief at 9; Joint Stip. of Facts at ¶ 13.
It cannot be gainsaid that the menorah and star and crescent are religious symbols. See, e.g., Allegheny, 492 U.S. at 613 , 109 S.Ct. 3086 (“The menorah, one must recognize, is a religious symbol: it serves to commemorate the miracle of the oil as described in the Talmud. But the menorah’s message is not exclusively religious.”); Kaplan v. City of Burlington, 891 F.2d 1024 , 1026 (2d Cir.1989) (“A menorah is a religious symbol of the Jewish faith, and is recognized as such by the general public.”); The Oxford Dictionary of World Religions 246 (John Bowker ed., Oxford University Press 1997) (identifying the crescent moon as a “[r]eligious emblem of Islam, derived from the Quranic recognition of the waxing and waning of the moon as a sign of God’s unchanging purpose and control” and noting that the “crescent on the cupola of a mosque indicates the direction of Mecca”); Annemarie Schimmel, Islamic Iconography, in 7 The Encyclopedia of Religion 64, 66 (Mircea Eliade ed., MacMillan Publishing Co.1987) (stating that the crescent “has come to be regarded as the typical sign of Islam” and “now is generally seen as the Islamic equivalent of the Christian cross,” “although its first appearance on early Islamic coins, metalwork, and ceramics had no religious connotations”). The majority concedes as much, ante at [20 & n. 16], and indeed, concludes that a menorah and star and crescent are as religious in nature as a creche, ante at [27-28]. Moreover, though neither a menorah nor a star and crescent depict a deity, both relate directly to a deity — God performed the miracle exemplified by the menorah, and the crescent depicts the waxing and waning of the moon as a sign of God’s purpose and control over the universe.
A Christmas tree, however, is a purely secular symbol. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573, 616 , 109 S.Ct. 3086 , 106 L.Ed.2d 472 (1989) (“The Christmas tree, unlike the menorah, is not itself a religious symbol.”); Laurence H. Tribe, American Constitutional Law § 14-15, at 1295 (2d ed.1988) (noting that history has “neutralized” the Christmas tree, which was “once associated with the Tree of Life in the Garden of Eden” (citing American Civil Liberties Union v. St. *52 Charles, 794 F.2d 265, 271 (7th Cir.1986)) (citing Thomas G: Crippen, Christmas and Christmas Lore 153 (1923), and II Encyclopaedia Britanncia: Micropmdia 904 (15th ed.1975))). Furthermore, though the District Court and majority attempt to characterize some of the stars depicted in the displays as “Stars of Bethlehem,” ante at [28 n. 24], there is nothing in the displays that suggests such a conclusion. The other “Christmas” symbols the DOE allows to be displayed as part of the secular holiday celebration are purely secular. As Judge Posner noted in American Civil Liberties Union v. St Charles,
[t]here is nothing distinctively Christian about reindeer, Santa Claus, gift-giving, eggnog, tinsel, toys, retail sales, roast goose, or the music (as distinct from the words) of Christmas carols. Some symbols that are Christian — such as the holly wreath, which both symbolizes Christ’s hegemony (wreaths and garlands being a traditional symbol of kingship and prowess) and recalls the crown of thorns that was placed on His head before He was crucified, to mock His supposed Kingship — have lost their Christian connotations. They are regarded by most people, including most Christians, as purely decorative____The five-pointed star of Bethlehem, while unmistakably, a part of the story of the birth of Jesus Christ, is the same star used in the American flag, and in many other secular settings; it, too, has lost its religious connotations for most people.
794 F.2d at 271 (internal citations omitted). Finally, contrary to the District Court’s finding, a creche, or nativity scene, depicts a historical event and thus, has some nonreligious aspect to it.
A parent who fully understands “the history, ubiquity, and context” of the policy and displays, Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 40 , 124 S.Ct. 2301 , 159 L.Ed.2d 98 (2004) (O’Connor, J., concurring in the judgment), and who experiences the displays either in person or through working with his or her child at home, would not unreasonably perceive a difference in the manner in which the different religions are treated by the schools. The parent would certainly understand that the menorah and star and crescent are symbols of great significance in the Jewish and Muslim religions. They would also understand that Christmas is represented by objects that are purely secular, if not, pagan (Christmas trees, snowmen, snowflakes, wreaths, stockings, Santa Claus figures, gingerbread men, and wrapped gifts). The parent would note that Jewish and Muslim students are allowed to create and observe symbols that are consistent with those they have viewed from a young age in their religious celebrations at home and in their places of worship, while Christian students are not. The reasonable parent observer would also be aware of Ms. Skoros’s request to add a creche to the list of approved symbols, and the DOE’s rejection, as well as the public correspondence between the two. In light of the foregoing, it is my view that the reasonable parent observer would understand the inclusion of religious symbols of the Jewish holiday of Chanukah and the Muslim commemoration of Ramadan, and exclusion of any religious symbols of the Christian holiday of Christmas, to convey the State’s approval of Judaism and Islam and disapproval of Christianity. The touchstone of the Establishment Clause, its principle of neutrality, forbids such favoritism. See McCreary County v. ACLU of Kentucky,-U.S.-,-, 125 S.Ct. 2722, 2742 , 162 L.Ed.2d 729 (2005) (“[T]he government may not favor one religion over another.”); Board of Ed. of Kiryas Joel Vill. Sch. Dis. v. Grumet, 512 U.S. 687, 706 , 114 S.Ct. 2481 , 129 L.Ed.2d 546 *53 (1994) (invalidating a state law that created a separate school district to serve a community of highly religious Jews exclusively because it “single[d] out a particular religious sect for special treatment”). As then-Chief Justice Bird of the California Supreme Court noted in Fox v. City of Los Angeles, 22 Cal.3d 792 , 587 P.2d 663 , 150 Cal.Rptr. 867 (1978):
When a city so openly promotes the religious meaning of one religion’s holidays, the benefit reaped by that religion and the disadvantage suffered by other religions is obvious. Those persons who do not share those holidays are relegated to the status of outsiders by their own government; those persons who do observe those holidays can take pleasure in seeing the symbol of their belief given official sanction and special status.
22 Cal.3d at 803 , 587 P.2d at 670 , 150 Cal.Rptr. at 874 (Bird, C.J., concurring).
It is also my view that a reasonable student observer would view the displays and celebrations as conveying the endorsement of Judaism and Islam. A Jewish or Muslim student viewing the displays or completing assignments in connection with the displays would understand the religious nature of the menorahs and stars and crescents and would understand that the symbols represent Chanukah and Ramadan. Jewish and Muslim students would find the symbols consistent with those they view in their religious celebrations at home and in their places of worship. A young student, therefore, would likely be confused as to whether the activity is meant to celebrate the secular “winter holiday season” or whether it is meant to celebrate Chanukah and Ramadan as religious holidays. We must remind ourselves that we are dealing with “impressionable children” who are likely to “perceive, however wrongly,” the imprimatur of state approval of religion. Tribe, supra § 14-6, at 1178-79. There is a fine line between the celebration of the secular “winter holiday season” and the celebration of the three religious events of Christmas, Chanukah, and Ramadan; it is a distinction with which a young child will likely have more difficulty than an adult. The majority concedes that the religious significance of religious symbols may be more obvious to schoolchildren, ante at [28]. Because of the content of the displays, the children would fairly understand the purpose of the displays (and their own acts in creating the displays) to be the celebration of Chanukah and Ramadan as religious holidays. See Allegheny, 492 U.S. at 595 , 109 S.Ct. 3086 (“[T]he question is ‘what viewers may fairly understand to be the purpose of the display.’ ” (quoting Lynch, 465 U.S. at 692 , 104 S.Ct. 1355 (O’Connor, J., concurring))); see also Stone v. Graham, 449 U.S. 39, 42 , 101 S.Ct. 192 , 66 L.Ed.2d 199 (1980) (holding that “[i]f the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments”). Such is inconsistent with the Establishment Clause. See Allegheny, 492 U.S. at 614-15 , 109 S.Ct. 3086 (“If the city celebrates both Christmas and Chanukah as religious holidays, then it violates the Establishment Clause. The simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm than the endorsement of Christianity alone.”).
Because of the young age of the children and the particular objects allowed in the displays here, the display’s setting does not “negatef] any message of endorsement” of the Jewish beliefs represented by the menorah or the Muslim beliefs represented by the star and crescent. Lynch, 465 U.S. at 692 , 104 S.Ct. 1355 (O’Connor, J., concurring). There is a great risk that a young student will perceive the govern *54 ment as endorsing the religious message of the religious symbols chosen for presentation. This case is thus unlike the cases cited by the majority involving holiday displays on public property, because the mere fact that the displays here contains symbols associated with different religions and some non-religious symbols will not necessarily dilute or change the focus from a religious message to something else. See Elewski v. City of Syracuse, 123 F.3d 51, 54 (2d Cir.1997) (“[I]f [a symbolj’s context ... neutralizes the message of governmental endorsement, then the [symbol] passes muster under the Establishment Clause.”). The secular message of pluralism — what saved the holiday displays in Lynch and Allegheny — will not necessarily come across in the participatory public school context.
The majority takes issue with the dissent’s “cast[ing] school children of ... varying ... religious backgrounds” as the reasonable observers in this case. Ante at [24], Any Establishment Clause inquiry in public schools must, however, determine whether “school sponsorship of a religious message ... sends the ancillary message to members of the audience who are nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’ ” Santa Fe Indep. Sch. Dist., v. Doe, 530 U.S. 290, 309-10 , 120 S.Ct. 2266 , 147 L.Ed.2d 295 (2000) (quoting Lynch, 465 U.S. at 688 , 104 S.Ct. 1355 (O’Connor, J., concurring)). In order to examine whether a display sends such message, we must consider the perspective of adherents and nonadherents alike. See Kaplan v. City of Burlington, 891 F.2d 1024, 1030-31 (2d Cir.1989) (considering the views of “members of minority religions or nonbelievers” as well as “members of the majority faith” in Establishment Clause inquiry); Selman v. Cobb County School Dist., 390 F.Supp.2d 1286, 1306 (N.D.Ga.2005) (concluding that sticker concerning evolution “sends a message to those who oppose evolution for religious reasons that they are favored members of the political community ... [and] sends a message to those who believe in evolution that they are political outsiders”); see also Capitol Square Review & Adv. Bd. v. Pinette, 515 U.S. 753, 799 , 115 S.Ct. 2440 , 132 L.Ed.2d 650 (1995) (Stevens, J., dissenting) (“It is especially important to take account of the perspective of a reasonable observer who may not share the particular religious belief [the display] expresses.”); Benjamin I. Sachs, Case Note, Whose Reasonableness Counts?, 107 YALE L.J. 1523, 1526 (1998). Indeed, in Santa Fe , the Supreme Court considered the possible impressions of the students who supported the religious message, as well as those “dissenter” or “nonbeliever” students. See Santa Fe, 530 U.S. at 305 , 120 S.Ct. 2266 (“[W]hile Santa Fe’s majoritarian election might ensure that most of the students are represented, it does nothing to protect the minority; indeed, it likely serves to intensify their offense.”); see id. (“Contrary to the District’s repeated assertions that it has adopted a ‘hands-off approach to the pregame invocation, the realities of the situation plainly reveal that its policy involves both perceived and actual endorsement of religion.... [T]he degree of school involvement makes it clear that the pregame prayers bear the imprint of the State and thus put school-age children who objected in an untenable position.” (internal quotation marks omitted)). In Lee v. Weisman, in the context of coercion, the Supreme Court considered the effect of the religious graduation speech from the perspective of adherents as well as of the “dissenter of high school age.” 505 U.S. 577, 593 , 112 S.Ct. 2649 , 120 L.Ed.2d 467 (1992) (“[F]or the dissenter of high school age, who has a *55 reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real.... [A] reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.”); id. at 597 , 112 S.Ct. 2649 (“[W]e do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. But .... the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid.”); see also Santa Fe, 530 U.S. at 312 , 120 S.Ct. 2266 (“[Wjhat to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.” (quoting Lee, 505 U.S. at 592 , 112 S.Ct. 2649 )). The majority’s objective observer — of adult age and no religious affiliation — is of no use in this context; our Establishment Clause inquiry should not be concerned with a display’s effect on an individual, like a judge, who is outside the community in question and who merely “tak[es] into consideration” the effect on schoolchildren of differing religions, but, rather, we must focus upon the actual context and community in which the displays are located. See, e.g., Santa Fe, 530 U.S. at 308 , 120 S.Ct. 2266 (stating that we must consider how “the members of the listening audience” perceived the religious message). For all the foregoing reasons, I find it most appropriate to view the displays in their actual context and in consideration of the actual community that receives the message. 3
As noted above, and in Laurence H. Tribe, American Constitutional Law § 14-6, at 1178 n. 53 (2d ed.1988), age has been given great weight in the Supreme Court cases involving schools. See, e.g., Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373, 385 , 105 S.Ct. 3216 , 87 L.Ed.2d 267 (1985) (stating that use of public funds for teaching of state-required subjects at private religious schools “may provide a crucial symbolic link between government and religion, thereby enlisting-ai least in the eyes of impressionable youngsters-the powers of government to the support of the religious denomination operating the school”) (emphasis added), overruled, on other grounds, Agostini v. Felton, 521 U.S. 203 , 117 S.Ct. 1997 , 138 L.Ed.2d 391 (1997). The Court has noted that “[t]he symbolism of a union between church and state is most likely to influence children of tender years, whose experience is limited and whose beliefs consequently are the function of environment as much as of free and voluntary choice.” Id. at 390, 105 S.Ct. 3216 ; Widmar v. Vincent, 454 U.S. 263 , 274 n. 14, 102 S.Ct. 269 , 70 L.Ed.2d 440 (1981) (“University students are, of course, young adults. They are less impressionable than younger students and should be able to appreciate that the University’s policy is one of neutrality toward religion.”).
Furthermore, it is quite relevant here that, unlike in the public display eases, the students participate in creating the dis *56 plays and in celebrating the holiday season under mandatory circumstances. As the Supreme Court stated in Lee , the compulsory nature of attendance “require[s] us to distinguish the public school context.” 505 U.S. at 597 , 112 S.Ct. 2649 ; see also id. (contrasting the school prayer with the legislative prayer in Marsh and holding that “[t]he atmosphere at the opening of a session of a state legislature where adults are free to enter and leave with little comment and for any number of reasons cannot compare with the constraining potential of the one school event most important for the student to attend. The influence and force of a formal exercise in a school graduation are far greater than the prayer exercise we condoned in Marsh ”); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223 , 83 S.Ct. 1560 , 10 L.Ed.2d 844 (1963) (finding significant that religious activity was “prescribed as part of the curricular activities of students who are required by law to attend school” and “held in the school buildings under the supervision and with the participation of teachers employed in those schools”); Schempp, 374 U.S. at 252-53 , 83 S.Ct. 1560 (Brennan, J., concurring) (asserting that the distinction between “the voluntary attendance at college of young adults” and “the compelled attendance of young children at elementary secondary schools .... warrants a difference in constitutional results”).
Requiring religious exercise in schools has long been found unconstitutional under the Establishment Clause. Never has the Supreme Court held, as the majority does here, that the non-educational use of religious symbols in public schools is constitutionally acceptable. In Engel v. Vitale, 370 U.S. 421 , 82 S.Ct. 1261 , 8 L.Ed.2d 601 (1962), the Court addressed a mandate from the New York State Board of Regents directing public school students to read aloud the following daily prayer: “‘Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.’” Id. at 422 , 82 S.Ct. 1261 . According to the Court, neither the fact that the prayer was “denomi-nationally neutral,” nor the fact that “its observance on the part of the students [was] voluntary,” saved the prayer from violating the Establishment Clause’s prohibition on the use of the power and support of the government to control or influence religious beliefs. Id. at 430 , 82 S.Ct. 1261 .
One year later, in School District of Abington Township v. Schempp, the Supreme Court found unconstitutional under the Establishment Clause a state statute “requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord’s Prayer by the students in unison.” 374 U.S. at 223 , 83 S.Ct. 1560 . The Court held that, contrary to the State’s assertions, the Bible was not being used “as an instrument for nonreligious moral inspiration or as a reference for the teaching of secular subjects,” id. at 224 , 83 S.Ct. 1560 , but rather, the exercises were a religious ceremony.
In Stone v. Graham, 449 U.S. 39 , 101 S.Ct. 192 , 66 L.Ed.2d 199 (1980) (per cu-riam), the Supreme. Court held that the display of the Ten Commandments on the walls of public classrooms violated the Establishment Clause. The Court found that the Kentucky statute governing such had no secular purpose, despite the State’s claim to the contrary, and that “[i]f the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the school children to read, meditate upon, perhaps to venerate and obey, the Commandments.” Id. at 42 , 101 S.Ct. 192 ; see also Wallace v. Jaffree, 472 U.S. 38, 59-60 , 105 S.Ct. 2479 , 86 L.Ed.2d 29 (1985) (holding that Alabama statute re *57 quiring one-minute moment of silence for “meditation or voluntary prayer,” violated the Establishment Clause insofar as it had no secular purpose).
In Lee, as noted above, the Court held that a commencement prayer given by a rabbi at a secondary school commencement would violate the Establishment Clause. See id. at 598-99 , 112 S.Ct. 2649 . The Court noted the special danger of religious exercise sanctioned or monitored by school officials, remarking that a school official’s “effort to monitor prayer will be perceived by the students as inducing a participation they might otherwise reject.” Id. at 590 , 112 S.Ct. 2649 . The Court in Lee found “subtle coercive pressures” insofar as there was no “real alternative” for a student who wished to avoid participating or the “appearance of participation” in the commencement prayer. 505 U.S. at 588 , 112 S.Ct. 2649 . That the school attempted to make the prayer nondenominational did not save its unconstitutionality. See id. at 588-89 , 112 S.Ct. 2649 (“The question is not the good faith of the school in attempting to make the prayer acceptable to most persons, but the legitimacy of its undertaking that enterprise at all when the object is to produce a prayer to be used in a formal religious exercise which students, for all practical purposes, are obliged to attend.”); see id. at 590 , 112 S.Ct. 2649 (“Though the efforts of the school officials in this case to find common ground appear to have been a good-faith attempt to recognize the common aspects of religions and not the divisive ones, our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students.”).
It is without question, therefore, that the Court has been particularly vigilant in ensuring that our elementary and secondary schools not favor religion through religious exercise or otherwise. The majority concedes that the menorah and star and crescent convey a religious message, but maintains that the State may employ some religion in schools in light of its goal to celebrate the holiday season. However, as Justice Kennedy stated in Lee , “the inspiration for the Establishment Clause [is] the lesson that ... what might begin as a tolerant expression of religious views [in public schools] may end [up] ... put[ting] at grave risk the freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed.” 505 U.S. at 591-92 , 112 S.Ct. 2649 . The Supreme Court has made clear that government action that may be permissible in the general public domain, i.e., displays in public squares, can be impermissible when it takes place in our public schools. See, e.g., id. at 593, 112 S.Ct. 2649 (“We do not address whether [the choice between objecting to religious exercise or participating] is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position.”). The “context” here — elementary and secondary public schools — and the “use” of the religious symbols' — i.e., as “celebratory” tools — are quite significant here. Cf. Van Orden, 125 S.Ct. at 2869 (Breyer, J., concurring in the judgment) (noting the import of the “context” and “use” of the Ten Commandments display in Establishment Clause inquiry).
Furthermore, no student should be charged with the vast amount of specialized knowledge the majority charges to its “reasonable observer,” including that “many devout Christians use creches to commemorate the religious miracle of Christmas, [but that] these Christians and countless nonbelievers also share in the numerous secular traditions of the Christmas holiday,” ante at [35], or that “the Supreme Court had approved a holiday *58 display in which Christmas was represented by a Christmas tree and Chanukah by a menorah to convey the permissible secular message of pluralism,” id., or that the DOE’s characterization of the star and crescent as secular resulted from its settlement of a lawsuit, id. at [21-22 n. 18]. Nor can we charge an elementary or secondary school student with the knowledge that “the public had (after Allegheny) increasingly come to accept the display of a menorah together with a Christmas tree as a symbol of tolerance and freedom associated with the holiday season,” id. at [35 n. 28]. 4
Additionally, the majority’s objection on the grounds that the record contains no “trial evidence” showing “the effect of the challenged displays on any child,” ante at [26], is off the mark. First, the majority uses a double standard here — there is no factual evidence in the record to support the majority’s contentions as to the effect of the display on its “adult” reasonable observer. The majority erroneously claims that it is allowed to rely on the Supreme Court’s conclusions in Allegheny , which were based on a display with a completely different history, context, and community. Ante at [26]. The rest of the “effect” evidence claimed by the majority is the same evidence on which the dissent bases its conclusions, i.e., the record evidence concerning what objects are allowed in the displays. Ante at [26]. Finally, the majority commits the very “error” of which it accuses the dissent — the majority speculates as to the perspective of a child where it concludes that “the religious significance of a creche may be more obvious to the average schoolchild than that of the menorah and the star and crescent,” ante at [28].
Additionally, and more importantly, this is not a purely factual issue. As Justice O’Connor stated in Lynch , a district court’s determination of “whether a government activity communicates endorsement of religion is not a question of simple historical fact .... [T]he question is ... in large part a legal question to be answered on the basis of judicial interpretation of social facts.” Lynch v. Donnelly, 465 U.S. 668, 693-94 , 104 S.Ct. 1355 , 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring). Furthermore, the majority can hardly claim that such “effect” evidence is required for the facial challenge to the DOE’s policy.
As an additional matter, I strongly disagree with the majority’s characterization of the display as “cheerful” and “multicultural,” ante at [19], as well as its claims that the disparate treatment given to the religions communicates a message that each of the religions is “entitled to everyone’s respect,” ante at [33]. It can hardly be claimed that the display of two religious objects together with winter decorations suggests to a young child that the purpose of the displays was to promote understanding and respect for the many cultural and religious traditions celebrated in New York City during the winter holiday season. I also strongly disagree that the displays of menorahs and stars and crescents, together with kinaras and candles, merely suggest to children that different traditions use “light” to celebrate holidays. Ante at [34], Indeed, the displays suggest much more — that some religious groups celebrate miracles and that the winter season is significant for these— specially identified — religious groups. *59 The DOE’s choosing two religions to be represented in the displays hardly “per-mites] all children to feel included in some way,” as the majority contends. Ante at [34], Furthermore, the majority’s claim that “the defendants treated the religious and secular origins of all winter holidays .. .with equal respect,” ante at [34] and its heavy reliance on the “instruction cards” in so concluding, is misplaced. Ante at [29, 32-33]. These cards were only present in one classroom and their use is not required, if even suggested, by the DOE’s holiday policy. In light of the foregoing, it is my view that an impressionable, though reasonable, student observer would view the displays’ inclusion of religious symbols of the Jewish holiday of Chanukah and the Muslim commemoration of Ramadan, in the context of a “celebration,” to convey the State’s approval of Judaism and Islam.
I do not mean to suggest that religious symbols may never be displayed in public schools. The display of religious symbols as part of an organized program of education about different religions and cultures would likely be found constitutional. See Altman v. Bedford Cent. School Dist., 245 F.3d 49, 76 (2d Cir.2001) (“[W]hile schools have a constitutional duty to make' certain that subsidized teachers do not inculcate religion, the Establishment Clause does not prohibit schools from teaching about religion.” (alteration, internal citations, and quotation marks omitted)); see also Stone, 449 U.S. at 42 , 101 S.Ct. 192 (“This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.”); Epperson v. Arkansas, 393 U.S. 97, 106 , 89 S.Ct. 266 , 21 L.Ed.2d 228 (1968) (“[S]tudy of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amendment’s prohibition.”) (emphasis added). That educational program with its attendant discussion and presentation of the practices of multiple religions might even take place during the winter months.
The Jewish and Muslim religious symbols here, however, are not used as part of an educational program on different religions and cultures. Despite the majority’s efforts to save the DOE’s policy by repeatedly characterizing it as an educational program, the DOE makes clear that the policy constitutes “guidelines [that] should be followed with respect to the display of cultural/holiday symbols,” Holiday Display Memo, at 1, and that the religious symbols are used as a means to celebrate the secular holiday season, Appellees’ Brief at 9 (“The Holiday Displays memorandum by its terms concerns seasonal displays of cultural/holiday symbols. It does not concern the subject or manner of classroom instruction.”); Dahan Deck, Ex. B (statement from teacher to Skoros indicating that class would be “having a party to celebrate the holiday”). Appellees submit that any purported education comes as a residual effect of the celebration, see Appellees’ Brief at 25 (describing the policy as proscribing the “manner of permitting the Department’s multicultural body to celebrate the holiday season in a secular fashion and to use this celebration to educate the students about religions and cultures other than their own”) (emphasis added); see also Skoros v. City of New York, No. CV-02-6439 (CPS), 2004 U.S. Dist. LEXIS 2234 , at *13, *26 (E.D.N.Y. Feb. 18, 2004) (district court finding that education about holidays was in context of classroom “celebrat[ion]”); they make no claim that the displays are part of a ’curriculum about religion and culture. Moreover, the cards mentioned by the majority that explain the *60 holidays and their cultural significance, ante at [9-10, 29, 32-33], were located only in one of the elementary school classrooms and appear to reflect only one schoolteacher’s interpretation of the policy. Therefore, it is clear that the policy governs (and sanctions) the celebration of the secular holiday season within classrooms and does not constitute an educational curriculum— either formal or informal — concerning different religions and cultures. The Supreme Court has never explicitly sanctioned a public school’s use of religious symbols as a means of celebrating the secular holiday season, as opposed to part of a program of education; even assuming such use is acceptable, the use of religious symbols of some religions and not others in such a celebration causes the endorsement problems noted above.
In sum, I find it clear that the current policy and displays violate the Establishment Clause insofar as a reasonable student observer would perceive a message of endorsement of Judaism and Islam and a reasonable parent observer would perceive a message that Judaism and Islam are favored and that Christianity is disfavored.
3. Entanglement
The endorsement problem here is exacerbated by the Holiday Display Memorandum’s definition of some symbols as per se secular. The Memorandum defines a “Christmas tree, menorah, and star and crescent” as secular holiday decor and indicates that a display of such items is appropriate as long as the objects of one religion do not predominate the display. The DOE also concedes that it defines a creche as a “purely religious” symbol for purposes of the Holiday Display Memorandum. In Commack Self-Service Kosher Meats v. Weiss, 294 F.3d 415 (2d Cir.2002), we held (using a combined endorsement/entanglement analysis) that the State’s defining “kosher” as “prepared in accordance with orthodox Hebrew religious requirements,” id. at 423, violated the First Amendment because it suggested a “preference for the views of one branch of Judaism” over another branch, id at 427. We also held that the State’s involvement in determining whether foods could be labeled “kosher” constituted excessive entanglement under the Establishment Clause because it “adopt[ed] an official State position on a point of religious doctrine” and required the State to “either interpret religious doctrine or defer to the interpretations of religious officials in reaching its official position.” Id. at 427; see also County of Allegheny v. ACLU, 492 U.S. 573, 593-94 , 109 S.Ct. 3086 , 106 L.Ed.2d 472 (1989) (stating that “[t]he Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief’); Tribe, supra § 14-11, at 1231 (describing “doctrinal entanglement” as reflecting the conviction that government “must never take sides on religious matters”); Tribe, supra § 14-11, at 1231 (“ ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion ....’” (quoting West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 , 63 S.Ct. 1178 , 87 L.Ed. 1628 (1943))).
It is my view that the DOE’s policy risks excessive entanglement inasmuch as it “adopts an official State position on a point of religious doctrine” by defining a menorah and star and crescent as secular symbols, and a “creche” as “purely religious.” It is for this reason that I find entanglement, not for the other reasons rejected by the majority. I agree with the majority, for example, that the policy does not require the kind of constant monitoring found objectionable in Lemon v. Kurtz *61 man, 403 U.S. 602, 619 , 91 S.Ct. 2105 , 29 L.Ed.2d 745 (1971), that defendants “do not attempt to inject state authority into any sectarian institution,” ante at [37], that the government does not “ced[e] government authority to any religious sect or group,” id. at [37-38], and that there is no “fusion of government and religious authority,” id. at [38].
As noted in Kaplan, however, some Jews “would disagree with the apparent suggestion that a menorah itself has a significant secular import.” Kaplan v. City of Burlington, 891 F.2d 1024, 1028-29 (2d Cir.1989). It would not be unreasonable to assume that they would take issue with the DOE’s pronouncement of a menorah as being in the same category of symbols as a Christmas tree. On the other hand, “some nonreligious American Jews celebrate Chanukah as an expression of ethnic identity and as a cultural or national event rather than as a specifically religious event.” Allegheny, 492 U.S. at 585 , 109 S.Ct. 3086 (internal quotation marks omitted). Muslims might be similarly split as to the DOE’s treatment of the star and crescent. Christians likely might take offense to the statement that a creche is “purely religious,” a contention that implicitly rejects the historical nature of the symbol. Justice Souter aptly questioned a state’s competence to distinguish between the religious and secular in Lee :
In many contexts ... nonpreferentialism requires some distinction between “sectarian” religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster. Simply by requiring the enquiry, nonpreferentialists invite the courts to engage in comparative theology. I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible.
505 U.S. at 616-17 , 112 S.Ct. 2649 (Souter, J., concurring.).
In my view, therefore, the DOE’s action in defining a menorah and star and crescent as secular, and a creche as “purely religious,” is impermissible insofar it takes positions on divisive religious issues. I concede that the balancing necessary to ensure that a public holiday display conveys an overall secular message necessarily requires government officials to determine the degree to which certain symbols are secular or religious. Thus, even if the DOE’s policy did not define which objects are secular and which are religious, some official would have to make that determination in connection with the displays. That notwithstanding, it is my view that pronouncement of certain symbols to be per se secular is excessive entanglement, which is proscribed by the Establishment Clause. See Agostini v. Felton, 521 U.S. 203, 233 , 117 S.Ct. 1997 , 138 L.Ed.2d 391 (1997) (“Interaction between church and state is inevitable and we have always tolerated some level of involvement between the two. Entanglement must be ‘excessive’ before it runs afoul of the Establishment Clause.” (internal citation omitted)).
Moreover, the DOE’s policy does not affect only government speech, as the majority contends, ante at [36]. Rather, it governs the conduct of children and parents — it dictates what symbols the public schoolchildren may draw or otherwise create for use in the displays, as well as what objects parents may send with their children for use in the displays. To this extent it does “dictate to a[ ] private group or person ... an[ ] official view of what are the secular or religious symbols of particular holidays,” ante at [37]. Moreover, the fact that it does so “exclusively within public schools” does not save its unconstitutionality, ante at [37]. Each of the sym *62 bols at issue relates to commemorations of significant faith-based events and the DOE dictates to teachers, parents, children, and others within the relevant community which symbols used in such commemorations are “religious” and which are “secular.”
II. Free Exercise and Parental Rights Claims
I concur in the majority’s holdings as to Skoros’s Free Exercise and parental rights claims. I find those claims to be without merit for reasons similar to those stated by the majority and the District Court. Though I find that the displays and policy violate the Establishment Clause, the record in this case does not demonstrate that the holiday displays or policy “placed a substantial burden” on the Skoros children’s ability to practice their faith, Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 79 (2d Cir.2001), nor does the record demonstrate that the displays or policy substantially burdened Skoros’s ability to control the religious or general upbringing and education of her children.
IV. Conclusion
For the foregoing reasons, I concur in the majority’s affirmance of the District Court’s rejection of Skoros’s Free Exercise and parental rights claims. I respectfully dissent from the majority’s opinion on the Establishment Clause claim and would vacate and reverse the judgment of the District Court in that respect.
. Although the majority phrases the DOE’s stated purpose slightly differently, ante at [18], any dispute is merely semantic; even the District Court characterized the DOE’s purpose as “the celebration of multiple winter holidays,” Skoros v. City of New York, No. CV-02-6439 (CPS), 2004 U.S. Dist. LEXIS 2234 , at *29 (E.D.N.Y. Feb. 18, 2004).
. At the time the suit was brought, Nicholas Tine was ten years old, and Christos Tine was nine years old. They are both students in elementary public schools under the aegis of the DOE. Therefore, for the "as applied” challenge, the reasonable student observer is an elementary school student, and, because the policy applies to all New York City public schools, the facial attack requires us to consider the reasonable student observer to be either an elementary school child or a secondary school student.
. Even if I were to consider the displays and celebrations from the perspective of a ''model” reasonable student of no particular religion, I would still hold that such observer, imbued with an understanding of the differing religions represented in the school as well as the history and context of the displays, would view the displays as endorsing Judaism and Islam and/or requiring participation in the celebration of Jewish and Muslim religious holidays.
. The foregoing information might be imputed to the parent observer, but it is my view that, for the reasons noted above, even that parent observer, charged with such knowledge, would not unreasonably perceive the State’s endorsement of Judaism and Islam and disapproval of Christianity.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8409879. Public record. Not legal advice.