Petition for Writ of Certiorari — Libby Hilsenrath, on Behalf of Her Minor Child, C. H., Petitioner v. Chathams School District Board of Education

Supreme Court briefSep 2, 2025

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NO. ________

In the

Supreme Court of the United States

LIBBY HILSENRATH, on behalf of her minor child,

C.H.,

Petitioner,

SCHOOL DISTRICT OF THE CHATHAMS, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

Richard Thompson

Counsel of Record

Thomas More Law Center

24 Frank Lloyd Wright Drive

P.O. Box 393

Ann Arbor, MI 48106

Tel: (734) 827-2001

rthompson@thomasmore.org

Michael P. Hrycak

129 Beech Street

Cranford, NJ 07016

Tel: (908) 789-1870

michaelhrycak@yahoo.com

Counsel for Petitioner

QUESTIONS PRESENTED

In Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 587

(2022), this Court expressly rejected Lemon’s “ambitious[]

attempt[] to find a grand unified theory of the

Establishment Clause.” American Legion v. American

Humanist Ass’n, 588 U.S. 29, 60 (2019). The majority in

Hilsenrath v. Sch. Dist. of Chathams, 136 F4.th 484 (3d

Cir. 2025) replaced that unified test with one of its own—

a “hallmarks” test—that the concurrence, the Fifth

Circuit, and two district courts have rejected.

Moreover, the majority’s newly minted hallmarks

test is inconsistent with Lee v. Weisman and Edwards

v. Aguillard, which recognize that the Establishment

Clause provides much broader protection in the public

school context, including protection from even “subtle

coercive pressure” that violates the government’s

“duty to guard and respect that sphere of inviolable

conscience and belief which is the mark of a free

people.” Lee v. Weisman, 505 U.S. 577, 592 (1992).

And Mahmoud v. Taylor confirms that the principle

identified in Lee and Edwards—that a parent has the

right to direct the upbringing of her child—“receives

a generous measure of protection from our

Constitution.” 145 S.Ct. 2332, 2351 (2025); Edwards

v. Aguillard, 482 U.S. 578, 584 (1987) (explaining that

“the classroom will not purposely be used to advance

religious views that may conflict with the private

beliefs of the student or his or her family”).

The questions presented are:

Whether

public

school

violates

the

Establishment Clause by assigning content that

proselytizes for, extols, and gives favored treatment

to Islam (or any other religion) that conflicts with the

religious beliefs of parents and their children.

Whether, given the “complementary purposes” of

the Religion Clauses, the protection that the

Establishment Clause provides to parents and their

children in public schools under Edwards and Lee is

coextensive with the protection the Free Exercise

Clause provides them under Mahmoud and,

therefore, prohibits public schools from assigning,

without notice, content that conflicts with their

religious beliefs.

iii

PARTIES TO THE PROCEEDING

Petitioner is Libby Hilsenrath, the parent of C.H.,

who was a student enrolled in the course at issue in

this case.

Respondent is the Board of Education of the

School District of the Chathams.

CORPORATE DISCLOSURE STATEMENT

Petitioner Libby Hilsenrath is an individual

person.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING .......................... iii

CORPORATE DISCLOSURE STATEMENT .......... iii

TABLE OF CONTENTS ........................................... iv

TABLE OF APPENDICES ....................................... vi

TABLE OF AUTHORITIES .................................... vii

DECISIONS BELOW..................................................1

STATEMENT OF JURISDICTION ...........................1

PERTINENT CONSTITUTIONAL PROVISIONS

AND STATUTES ..................................................1

STATEMENT OF THE CASE ....................................2

Factual Background ....................................... 2

II.

Procedural Background.................................. 4

REASONS FOR GRANTING THE WRIT..................7

I. Certiorari should be granted because in

the wake of Kennedy lower courts have

adopted conflicting tests to determine the

level of coercion necessary to support an

Establishment Clause claim in the context

of public schools and because the

Hilsenrath majority’s hallmarks test

conflicts with Lee and Edwards......................... 9

A. In the wake of Kennedy’s rejection of

Lemon, lower courts have proffered at

least four different Establishment

Clause analyses when determining

whether a school has impermissibly

coerced parents and students in public

schools ........................................................... 11

B. The Third Circuit’s decision disregards

binding precedent, does not account for

the “special context” of public schools,

and, as a result, improperly limits the

scope of protection from coercion that

the Establishment Clause provides

parents and students in the public

school setting ................................................ 17

II. By recognizing that content in public

schools can conflict with a parent’s

religious beliefs, Mahmoud v. Taylor

further undermines the Third Circuit’s

unduly narrow view of the types of

coercion that violate a parent’s right to

direct the religious upbringing of her child

under the Establishment Clause ..................... 26

CONCLUSION ..........................................................33

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT, FILED MAY 5, 2025 ............. 1a

APPENDIX B — SUPPLEMENTAL OPINION

ON REMAND OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

NEW JERSEY, FILED OCTOBER 16, 2023 ..... 27a

APPENDIX C — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY, FILED

OCTOBER 16, 2023 ........................................... 56a

APPENDIX D — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT,

FILED JUNE 3, 2025 ........................................ 58a

APPENDIX E — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT, FILED JULY 20, 2022 ........ 60a

APPENDIX F — OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY, FILED

NOVEMBER 12, 2020 ....................................... 62a

APPENDIX G — COMPLAINT AND

DEMAND FOR JURY TRIAL OF THE

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF NEW JERSEY,

FILED JANUARY 23, 2018............................. 103a

vii

TABLE OF AUTHORITIES

Page

Cases:

Agostini v. Felton,

521 U.S. 203 (1997)................................... 4, 8, 17

American Legion v. American Humanist Ass’n,

588 U.S. 29 (2019) ................................ 10, 13, 20

Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675 (1986)........................................... 22

Carson v. Makin,

596 U.S. 767 (2022)........................................... 19

Edwards v. Aguillard,

482 U.S. 578 (1987).............. 4, 7, 8, 9, 10, 11, 12,

13, 14, 17, 18, 20, 22, 25, 26, 28, 30, 31, 32

Espinoza v. Montana Dept. of Rev.,

591 U.S. 464 (2020)........................................... 19

Firewalker-Fields v. Lee,

58 F.4th 104 (4th Cir. 2023) ............................. 16

Jacobellis v. Ohio,

378 U.S. 184 (1964)........................................... 14

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022)................ 4, 5, 7, 8, 9, 10, 11,

12, 13, 15, 16, 17, 18, 19, 20, 26, 32

Lee v. Weisman,

505 U.S. 577 (1992).............. 4, 7, 8, 9, 10, 11, 12,

13, 14, 15, 17, 18, 20, 21, 22, 23, 25, 26, 27, 28,

29, 30, 32

Lemon v. Kurtzman,

411 U.S. 192 (1973)............ 4, 7, 9, 10, 11, 12, 13,

15, 17, 19, 32

viii

Loffman v. California Dep’t of Educ.,

119 F.4th 1147 (9th Cir. 2024) ..................... 7, 15

Lynch v. Donnelly,

465 U.S. 668 (1984)........................................... 21

Mahmoud v. Taylor,

145 S.Ct. 2332 (2025)................. 8, 21, 24, 25, 26,

27, 28, 29, 30, 31, 32, 33

McGowan v. Maryland,

366 U.S. 420 (1961)........................................... 21

Roake v. Brumley,

141 F.4th 614 (5th Cir. 2025) ....................... 7, 15

Sch. Dist. of Abington Tp., PA v. Schempp,

374 U.S. 203 (1963)......................... 21, 23, 27, 31

Shurtleff v. City of Bos.,

596 U.S. 243 (2022).............. 6, 7, 8, 9, 11, 12, 15,

18, 20

Stinson v. Fayetteville Sch. Dist. No. 1,

2025 WL 2231053

(W.D. Ark. Aug. 4, 2025) ........................... 7-8, 16

Stone v. Graham,

449 U.S. 39 (1980)............................................. 31

Tinker v. De Moines Indep. Sch. Dist.,

393 U.S. 503 (1969)........................................... 26

Town of Greece v. Galloway,

572 U.S. 565 (2014)........................................... 11

Trinity Lutheran Church of Columbia, Inc. v. Comer,

582 U.S. 449 (2012)........................................... 19

W.V. Bd. of Educ. v. Barnette,

319 U.S. 624 (1943)............................... 21, 27, 33

Wallace v. Jaffree,

472 U.S. 38 (1985)........................................ 20-21

Williams v. Bd. of Educ. of City of Chicago,

673 F. Supp. 3d 910 (N.D. Ill. 2023) ............ 8, 16

Wisconsin v. Yoder,

406 U.S. 205 (1972)................... 25, 26, 31, 32, 33

Constitutional Provisions:

U.S. Const. Amend. I .............. 1, 5, 18, 20, 26, 27, 28

Statutes and Other Authorities:

28 U.S.C. § 1254(1).................................................... 1

DECISIONS BELOW

The opinion of the Court of Appeals is reported at

136 F.4th 484, No. 23-3030 (May 5, 2025) and

reprinted in Pet. App. A1-A26. The opinion of the

district court granting summary judgment to the

defendants is reported at 698 F. Supp. 3d 752 (D.N.J.

2023) and reprinted in Pet. App. 27a-55a. The initial

decision of the district court granting summary

judgment to the defendants is reported at 500 F.

Supp. 3d 272 (D.N.J. 2020) and reprinted in Pet. App.

62a-102a because it is referenced in the district

court’s later decision.

STATEMENT OF JURISDICTION

The Court of Appeals issued its opinion on May 5,

2025, and entered an order denying the Appellant’s

Petition for Panel and for En Banc Rehearing on June

3, 2025. App. 58a-59a. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

PERTINENT CONSTITUTIONAL

PROVISIONS AND STATUTES

The First Amendment to the United States

Constitution provides in pertinent part:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech….

U.S. CONST. AMEND. I.

STATEMENT OF THE CASE

Factual Background

Petitioner, Libby Hilsenrath, is the mother of

C.H., her minor child. App. 73a. During the 2016-17

school year, C.H. was twelve years old and attended

Seventh Grade at Chatham Middle School in the

School District of the Chathams, Chatham, N.J.

(“District”). App. 64a. As a seventh grader, C.H. was

required to take and successfully complete a course in

World Cultures and Geography. App. 64a-65a. The

World Cultures and Geography Course included a

unit that discussed the Middle East and North Africa

(the “MENA unit”). App. 65a.

In January of 2017, C.H. and his mother reviewed

his assignments for the MENA unit. App. 66a. She

discovered that the District directed students to

watch an “Intro to Islam Video.” App. 69a. Upon

review, Hilsenrath learned that the video stated the

articles of Islamic faith as if Islam were the one, true,

faith, including assertions that “Allah is the one

God….,” “Allah has no equal and is all powerful…,”

Muhammad … is the last and final Messenger of

God…,” “God gave [Muhammad] the Noble Quran…,”

“Islam [is a] shining beacon against the darkness of

repression, segregation, intolerance and racism…,”

and Islam is “perfected” religion and the only religion

for mankind. App. 4a-5a. This video ended with the

prayer “May God help us all find the true faith, Islam.

Ameen.” App. 6a. Hilsenrath also learned that her

son was required to complete a worksheet which

included a fill-in-the-blank written profession of the

Shahada, “There is no god but __ and __ is his

messenger.” App. 7a.

Troubled that Islamic doctrine was being

promoted and taught in a tone suggesting that Islam

was the one true faith, Hilsenrath, a Christian,

probed further and discovered that C.H. had also been

assigned a video about the pillars of Islam (“Islamic

Pillars”), which they viewed together. App. 7a. The

Islamic Pillars video featured a discussion between

two adolescents, Alex (a non-Muslim) and Yusuf (a

Muslim), with Yusuf explaining Islamic doctrine to

Alex and inviting him to prayer. App. 6a-7a; App.

36a-37a.1

Hilsenrath brought her concern—that her son

was being exposed to materials that featured

Islamic proselytizing while ignoring Judaism and

Christianity in the Middle East—to the attention of

the District. App. 37a, 70a-72a. The District

The descriptions of the video by the courts below do not

adequately convey the basis for Hilsenrath’s objection. The

video is described adquately in the Complaint, App. 118a-120a,

and was part of the Joint Appendix filed below (Jt. App.). It

features two young children, Alex (a non-Muslim) and Yusuf (a

Muslim) who stop their soccer game to discuss Islam when the

Muslim call for prayer sounds. Yusuf instructs Alex in the

Shahada, the Islamic credal prayer, which appears in bright

letters (“there is no God except Allah and Prophet Muhammad

is his messenger”) and discusses the second pillar of Islam which

requires Muslims to pray to Allah five times a day. When Alex

asks Yusuf if it is hard to pray that often, Yusuf responds, “No….

We are praying to god. And when I remember that it is god that

keeps me healthy and my heart beating it make me want to

pray.” Alex then looks down, sees his own heart beating, and

smiles, signaling that he understands why he should pray to

Allah. The video ends with Yusuf explaining to Alex that he

must leave for midday prayer causing Alex to look down in

sadness, but then Yusuf returns and invites Alex to come pray

with him, and Alex happily goes off to pray to Allah with Yusuf.

App. 118a-120a (Complaint at ¶¶63-72).

decided that no change to the curriculum was

necessary. App. 39a.

II. Procedural Background

Hilsenrath filed suit on behalf of C.H., alleging

that the District had violated the Establishment

Clause by assigning her son materials that extolled

Islamic doctrine and proselytizing in the context of an

overall presentation that portrayed Islamic faith

favorably while ignoring the importance of Judaism

and Christianity in the Middle East. App. 73a. At the

close of discovery, the parties filed cross-motions for

summary judgment. App. 62a. Hilsenrath relied

upon this Court’s decision in Lemon v. Kurtzman, 411

U.S. 192 (1973), and relevant precedent applying the

Lemon test in the public school setting, Edwards v.

Aguillard, 482 U.S. 578 (1987), Agostini v. Felton, 521

U.S. 203 (1997), and Lee v. Weisman, 505 U.S. 577

(1992). See United States District Court District of

New Jersey Case #2:18-cv-00966-KM-MAH at Doc.

63. The district court ruled that the District’s

curriculum passed muster under Lemon, granted the

District’s motion for summary judgment, and entered

a final judgment. App. at 62a-102a.

Hilsenrath appealed to the Third Circuit. App. 8a9a. After hearing oral argument, the Third Circuit

vacated the decision below and remanded with

instructions for the district court to consider the case

in light of this Court’s decision in Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507 (2022). App. 9a.

Upon remand, the district court observed that

“[l]urking behind the Supreme Court’s analysis [in

Kennedy] is the well-recognized trade-off between the

First Amendment Establishment Clause and the Free

Exercise Clause in particular cases.” App. at 48a.

The court reasoned that “[i]n a very general sense,

Kennedy may be seen as restricting the scope of the

Establishment Clause and, in the name of Free

Exercise, granting a bit more leeway for the presence

of religion in the setting of public education.” App.

48a. The court proceeded to “analyze whether the

challenged materials … bear any of the historical

‘hallmarks of religious establishments.’ ” App. 49a.

Believing its charge on remand was to “revisit the

case in light of the largely coercion-based standard

adopted by the majority in Kennedy,” App. 54a, the

court noted that the curriculum did “not present any

of the ‘hallmarks’ associated with establishment of

religion to which Kennedy alluded.” App. 54a. After

listing those “hallmarks,” it observed that “[t]hese

sole guides that Kennedy has furnished the lower

courts for the assessment of ‘coercion’ for the purposes

of the Establishment Clause challenge in the context

of public education, do not fit the facts of this case.”

App. 55a. It granted the District’s motion for

summary judgment because “the curriculum and

materials … were not coercive and do not otherwise

bear or resemble the hallmarks of religious

establishments the framers sought to prohibit when

they adopted the First Amendment.” App. 55a.

Hilsenrath appealed to the Third Circuit, which

affirmed the decision below in a divided opinion. The

majority opinion took this Court’s decision in Kennedy

to have “instructed that the Establishment Clause

must be interpreted by reference to historical

practices and understandings,” App. 13a, and used

Justice Gorsuch’s concurrence in Shurtleff v. City of

Bos., 596 U.S. 243 (2022), as the basis for its

conclusion that “to prevail on her Establishment

Clause claim, Hilsenrath must show that the Board’s

MENA curriculum resembles one of the[] hallmarks

of religious establishment.”

App. at 13a-14a.

Employing this approach, the majority concluded that

“[b]ecause the Intro to Islam” and “5 Pillars” videos

were presented in an academic rather than devotional

context, they did not come close to crossing any line

separating permissible curricular materials from

impermissible proselytization.”

App. 18a.

The

majority also rejected Hilsenrath’s argument (that

the MENA lesson favored Islam because of its

proselytizing content and because it extolled Islam

over other faiths and encouraged conversion) on the

grounds that the curriculum included coverage of

many religions, the videos referred to Muslims in the

third person, and there was no evidence that the

teacher ever tried to convert her students to Islam.

App. 19a-20a.

Writing separately, Judge Phipps observed that

“the Majority Opinion uses a ‘hallmarks’ test:

whether the challenged action bears any

characteristic historically associated with an

established church …[,] but I posit that history and

tradition are more effective as exegetical tools ... than

as freestanding constitutional norms.” App. 22a. In

his view, “a hallmarks test … is not needed to

conclude the materials about Islam assigned to

seventh-grade students at Chatham … do not

establish a religion. Instead, all that is needed is a

recognition that teaching on matters of religion or

even encouraging religious belief or practice in public

school does not constitute a law respecting an

establishment of religion.” App. 23a-24a. The Third

Circuit denied Hilsenrath’s petition for rehearing.

App. 58a-59a.

Hilsenrath now petitions this Court because she

believes that the courts below erred by taking

Kennedy to overrule Edwards and Lee, sub silentio,

and by invoking Kennedy to reject her claim based on

reasoning that creates conflict with the Religion

Clause principles articulated in Edwards, Lee, and

Mahmoud.

REASONS FOR GRANTING THE WRIT

Review is warranted in this case for at least three

reasons. First, five courts have reached at least four

different conclusions about the proper Establishment

Clause test to apply in the wake of Lemon’s possible

demise. The majority in Hilsenrath, drawing on

Kennedy and Shurtleff, adopted a new “hallmarks”

test. The concurrence and Fifth Circuit rejected that

grand unification project in favor of a “recognition”

test and a “ ‘fits within’ or is ‘consistent with a broader

tradition’ at the time of the Founding or

incorporation” test, respectively. Roake v. Brumley,

141 F.4th 614, 646 (5th Cir. 2025). The Ninth Circuit

has concluded that “Kennedy ‘has called into doubt

much of our Establishment Clause case law,’ ”

without hazarding a guess as to the actual test.

Loffman v. California Dep’t of Educ., 119 F.4th 1147,

1171 (9th Cir. 2024) (citation omitted). And two

district courts have denied that Kennedy has the

dramatic impact that the Ninth Circuit suggested.

Stinson v. Fayetteville Sch. Dist. No. 1, 2025 WL

2231053, at *7 (W.D. Ark. Aug. 4, 2025); Williams v.

Bd. of Educ. of City of Chicago, 673 F. Supp. 3d 910,

921 (N.D. Ill. 2023).

Second, the majority’s new test is inconsistent

with Edwards and Lee and the broad protection that

the Establishment Clause affords parents and

students in the school setting from subtle coercive

pressures. Whereas Kennedy and Shurtleff limit the

government’s ability to invoke the Establishment

Clause to justify restricting the expression of private

speakers, Lee and Edwards teach a different lesson.

In the public-school setting, the Establishment

Clause provides parents and students with broad

protection, ensuring that “the classroom will not

purposely be used to advance religious views that may

conflict with the private beliefs of the student and his

or her family.” Edwards, 482 U.S. at 584. While

Hilsenrath reads Kennedy as effectively overruling

these opinions (such that its new hallmarks test

governs), this Court cites both cases favorably

throughout the majority opinion in Kennedy. And this

Court has explained that, “if a precedent of this Court

has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the

Court of Appeals should follow the case which directly

controls, leaving this Court the prerogative of

overruling its own decisions.” Agostini v. Felton, 521

U.S. 203, 237 (1997) (cleaned up).

Third, the Third Circuit’s narrow view of the

forms of coercion that count under the Religion

Clauses contradicts Mahmoud, which safeguards “the

right of parents ‘to direct the religious upbringing of

their’ children.” Mahmoud, 145 S.Ct. at 2351. Given

the “complementary purposes” of the Religion

Clauses, Kennedy, 597 U.S. at 533, it is not surprising

that the rights of parents and their children are

safeguarded by the Free Exercise and Establishment

Clauses. But instead of affording Hilsenrath and her

minor son the “generous measure of protection” given

parents and their children in the school setting, the

Third Circuit read Kennedy and Justice Gorsuch’s

concurrence in Shurtleff as narrowing the protection

parents and children enjoy under the Establishment

Clause. Hilsenrath, therefore, presents important

questions about the proper Establishment Clause test

to apply in the public-school context post-Kennedy

and the type of coercive pressure that infringes the

Religion Clauses in that setting. Only this Court can

resolve the lower court confusion and confirm the

ongoing vitality of Lee and Edwards, thereby

preventing conflict between the Clauses and

impermissible limiting of the scope of their protection.

I. Certiorari should be granted because in the

wake of Kennedy lower courts have adopted

conflicting tests to determine the level of

coercion

necessary

support

Establishment Clause claim in the context of

public schools and because the Hilsenrath

majority’s hallmarks test conflicts with Lee

and Edwards.

Now that this Court has expressly “abandoned

Lemon and its endorsement test offshoot,” Kennedy,

597 U.S. at 534, lower courts have struggled to

determine whether Kennedy articulated a new

Establishment Clause test, what that test is, and

what impact that test has on longstanding

Establishment Clause precedents, like Lee and

Edwards, which safeguard parents and their students

against coercion in the public schools. In Hilsenrath,

the majority and concurrence disagree as to the

answers to these questions. The majority contends

that Kennedy created a “hallmarks” test, replacing

Lemon’s “ambitious[] attempt[] to find a grand unified

theory of the Establishment Clause” with its own test.

American Legion, 588 U.S. at 60. The concurrence

rejects the grand unification project in favor of “a

recognition that teaching on matters of religion or

even encouraging religious belief or practice in public

school does not constitute a ‘law respecting an

establishment of religion.’ ” Hilsenrath, 136 F.4th at

495 (Phipps, J., concurring in the judgment) (citation

omitted).

The Fifth Circuit disagrees with both Third Circuit

opinions and advances its own post-Kennedy analysis.

The Ninth Circuit is confident that Kennedy had a

dramatic impact on Establishment Clause cases but

has not entered the fray of picking a specific new test.

And all four of these interpretations are at odds with

two district courts that do not think the post-Kennedy

Establishment Clause landscape has changed all that

much. Of course, at most one (and perhaps none) of

these conflicting views is correct. And deciding the

appropriate test is critically important given the

Establishment Clause right at stake—freedom from

even “subtle coercive pressure” that undermines a

parent’s right to direct the religious upbringing of her

child. Lee, 505 U.S. at 592; Edwards, 482 U.S.at 584

(“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 student and his or her

family.”).

Moreover, despite recognizing that “[c]ontext is

key,” the majority never considers the fundamental

differences between the government’s use of the

Establishment Clause in Kennedy and Shurtleff (as

justification for restricting speech by private

speakers) and a parent’s invocation of that Clause to

shield her child from materials that are proselytizing

in nature and inconsistent with their religious beliefs.

In the former situation, this Court has narrowed the

government’s ability to invoke the Establishment

Clause; in the latter, this Court “has been particularly

vigilant in monitoring compliance with the

Establishment Clause in elementary and secondary

schools.” Id. at 583-84. Review is necessary, therefore,

because the Third Circuit majority disregards the

teachings of Edwards and Lee, allowing the District to

ignore its “duty to guard and respect that sphere of

inviolable conscience and belief which is the mark of a

free people.” Lee, 505 U.S. at 592.

In the wake of Kennedy’s rejection of

Lemon, lower courts have proffered at

least four different Establishment

Clause analyses when determining

whether a school has impermissibly

coerced parents and students in public

schools.

Having abandoned Lemon, Kennedy explained

“that the Establishment Clause must be interpreted

‘reference

historical

practices

and

understandings.’ ” 597 U.S. at 535 (quoting Town of

Greece v. Galloway, 572 U.S. 565, 576 (2014)). What

Kennedy requires going forward has been anything

but clear, fostering broad-based confusion among

lower courts as to the appropriate approach and

Kennedy’s impact on Establishment Clause

precedents that previously applied Lemon: “[w]hile

clearly rejecting the Lemon test, the majority in

Kennedy was less clear about what would replace it—

i.e., what would constitute a proper ‘historical

analysis’ of a party’s Establishment Clause claim in

all cases.” App. 44a.

For its part, the Hilsenrath majority concluded that

Kennedy replaced Lemon with a different unified

Establishment Clause test, one grounded in the six

“ ‘telling traits’ ” of “established churches” that Justice

Gorsuch articulated in Shurtleff. App. 14a (quoting

Shurtleff, 596 U.S. at 286 (Gorsuch, J., concurring)). To

“prevail on [an] Establishment Clause claim,”

Hilsenrath “must show that the Board’s MENA

curriculum resembles one of these hallmarks of

religious establishment.” App. 14a. (emphasis added).

Yet as Lee and Edwards demonstrate, not all

establishments of religion involve the government’s

establishing a church.

And the majority never

considered that a test developed outside the publicschool context may not apply to parents and students

who are in that setting given the “heightened concerns

with protecting freedom of conscience from subtle

coercive pressure in the elementary and secondary

public schools.” Lee, 505 U.S. at 592.

Consequently, even if coercion is a “hallmark” of an

Establishment Clause violation, no post-Kennedy

opinion of this Court has specified what constitutes

“impermissible coercion” in the public school context.

Kennedy, 597 U.S. at 537 (“Members of this Court

have sometimes disagreed on what exactly qualifies as

impermissible coercion in light of the original

meaning of the Establishment Clause.”) (citing the

majority opinion in Lee and Justice Scalia’s dissent).

Kennedy did not attempt to undertake that project,

and the majority never explains how its new unified

theory is consistent with Lee and Edwards.

Furthermore, given that American Legion sought to

replace Lemon with “a more modest approach that

focuses on the particular issue at hand and looks to

history for guidance,” the majority’s new unified

theory seems anything but “modest.” 588 U.S. at 60;

Kennedy, 579 U.S. at 535-36 (citing American Legion

favorably).

The majority’s approach creates additional

uncertainty. Despite recognizing that this type of

“historical inquiry ‘requires serious work’ ”—“work

[that] is especially challenging” in the public-school

setting, App. 13a—the majority never directly

engages that challenge. Yet important questions

remain unaswered. How does the majority’s historical

test mesh with Edwards, which disclaims such an

approach in the public school context: “Such a

historical approach is not useful in determining the

proper roles of church and state in public schools,

since free public education was virtually nonexistent

at the time the Constitution was adopted”? 482 U.S.

at 583 n.4. The majority does not say. Instead of

engaging in a meaningful analysis of this Court’s

public-school precedents, the majority devotes one

short paragraph to a cursory review of “decisions

addressing proselytization in public schools.” App.

17a. Lee and Edwards, however, go beyond

proselytization, recognizing that the Establishment

Clause ensures “that the classroom will not purposely

be used to advance religious views that may conflict

with the private beliefs of the student and his or her

family.” Edwards, 482 U.S. at 584.

The concurrence rejects the majority’s novel

“hallmarks” test positing that: “history and tradition

are more effective as exegetical tools for construing

the text and structure of the Constitution than as

freestanding constitutional norms.” App. 22a (Phipps,

J, concurring in the judgment). But it ignores

Edwards and Lee entirely, contending that “all that is

needed is a recognition that teaching on matters of

religion or even encouraging religious belief or

practice in public school does not constitute a ‘law

respecting an establishment of religion.’ ” App. 22a

(Phipps, J., concurring) (citation omitted). Unless it

does. After all, Lee and Edwards recognize that the

“transmission of religious beliefs … is a responsibility

and a choice committed to the private sphere,” which

is why the schools have a “duty to guard and respect

that sphere of inviolable conscience and belief which

is the mark of a free people.” Lee, 505 U.S. at 589, 592.

Judge Phipps’s “recognition” test provides no objective

way to distinguish the constitutional use of religious

lessons and the unconstitutional, and threatens to

devolve into a form of Justice Stewart’s “I know it

when I see it” approach to obscenity. Jacobellis v.

Ohio, 378 U.S. 184, 197 (1964) (Stewart, J.,

concurring).

As it turns out, the Fifth Circuit has rejected both

views, creating a circuit split and furthering the need

for Supreme Court review. According to the Fifth

Circuit, “Kennedy did not adopt these ‘hallmarks’ as

the exclusive Establishment Clause test and the

Shurtleff concurrence is nonbinding.” Roake, 141

F.4th at 645-46. In its place, the Fifth Circuit

“formulated the following standard to evaluate

historical record evidence: Whether the challenged

practice ‘fits within’ or is ‘consistent with a broader

tradition’ at the time of the Founding or

incorporation.”

Id. at 646.

But the court

acknowledged that the Establishment Clause test

might differ in the school setting: “neither we nor the

Supreme Court have decided an Establishment

Clause case involving the public school context since

Kennedy.” Id. at 646 n.24. As a result, the Fifth

Circuit panel “assume[d] without deciding that the

historical framework … is applicable here.” Id.

While the Ninth Circuit has not adopted a specific

test, it has indicated that Kennedy has had a

significant impact on this Court’s Establishment

Clause jurisprudence: “in light of its methodological

mandate, Kennedy ‘has called into doubt much of our

Establishment Clause case law.’ ” Loffman, 119 F.4th

at 1171 (citation omitted). At the same time, two

federal district courts have claimed that Kennedy’s

impact is not as broad or deep as the Ninth Circuit

suggests:

Despite the Kennedy Court’s rather sweeping

announcement that the Lemon test had been

‘abandoned,’ there is no cause to believe that

all Supreme Court precedent that relied on

the Lemon test has been—or will be—

overruled. The Kennedy opinion itself makes

that crystal clear. Kennedy cited two publicschool Establishment Clause cases, Lee v.

Weisman and Santa Fe Independent School

District v. Doe—both of which applied the

Lemon test—and treated them as stillbinding precedent.

Stinson v. Fayetteville Sch. Dist. No. 1, 2025 WL

2231053, at *7; id. at *11 (“But Kennedy did not

overrule any public-school Establishment Clause

cases involving a state’s or school district’s imposition

of religious doctrine or practices on public-school

children.”); Williams v. Bd. of Educ. of City of Chicago,

673 F.Supp.3d 910, 921 (N.D. Ill. 2023) (“The Court

stated in Kennedy that it did not overrule prior

decisions in which ‘[the Supreme Court] has found

prayer involving public school students to be

problematically coercive.’ ”) (citation omitted).

Yet even if Kennedy does advance a single test,

unanswered questions abound. The concurrence in

Hilsenrath highlighted two: whether the government

must violate one or all the majority’s six traits for an

Establishment Clause violation and whether, if one or

more traits are present, the government can defend by

showing that its offending action comports with

history and tradition. While noting that Kennedy

“provided some clarity,” such that courts should

“[i]dentify the relevant tradition, then determine

whether the challenged practice is in or out,” the

Fourth Circuit stressed that “many questions

remain,” like “What kinds of evidence are relevant?

What kinds of evidence are the most useful? Which

periods of history are relevant—the era of the Bill of

Rights, 1791, or the era of the incorporation of the Bill

of Rights, 1868—and which period is most

important?” Firewalker-Fields v. Lee, 58 F.4th 104,

121, 122 n.6 and n.8 (4th Cir. 2023) (citations

omitted). The facts of this case—involving instruction

in a public school that was required without any

warning about or notice of the religious content of the

assigned videos—implicates all of these unanswered

questions.

If Kennedy espoused a test, courts need to know

what that test is. If Kennedy overturned certain

Establishment Clause precedents, then courts need

guidance as to which cases still apply in the publicschool setting. Only this Court can answer these

important questions.

The Third Circuit’s decision disregards

binding precedent, does not account for

the “special context” of public schools,

and, as a result, improperly limits the

scope of protection from coercion that

the Establishment Clause provides

parents and students in the public

school setting.

Although the majority acknowledges the

importance of context, it never considers how the

Establishment Clause differs depending on who is

invoking that Clause and for what purpose. The

majority seems to take Kennedy to overrule Lee and

Edwards, two of the leading Establishment Clause

cases dealing with coercion in the public schools, and,

therefore, reaches a result that is inconsistent with

both opinions. As this Court explained in Agostini v.

Felton, however, “if a precedent of this Court has

direct application in a case [Lee and Edwards], yet

appears to rest on reasons rejected in some other line

of decisions [Kennedy’s rejection of Lemon], the Court

of Appeals should follow the case which directly

controls, leaving to this Court the prerogative of

overruling its own decisions.” 521 U.S. at 237. The

Third Circuit ignores this directive, fashioning its own

test based on cases (Kennedy and Shurtleff) that dealt

with strikingly different factual situations and, in the

process, impermissibly narrowing the Establishment

Clause protection given parents and their students in

the special context of public schools.

The confusion started with the district court,

which interpreted Kennedy as limiting the scope of the

Establishment Clause despite the “vigilant …

monitoring,” Edwards, 482 U.S. at 583, that Lee and

Edwards call for in public schools: “[i]n a very general

sense, Kennedy may be seen as restricting the scope of

the Establishment Clause and, in the name of Free

Exercise, granting a bit more leeway for the presence

of religion in the setting of public education.” App.

48a. In Kennedy, the government invoked the

Establishment Clause to justify its suppression of

private religious speech. The school district argued

“its suspension of Mr. Kennedy was essential to avoid

a violation of the Establishment Clause.” Kennedy,

597 U.S. at 532. Even though his post-game prayers

at midfield “might have been protected by the Free

Exercise and Free Speech Clauses[, …] his rights were

in ‘direct tension’ with the competing demands of the

Establishment Clause.” Id. And “[t]o resolve that

clash, the District reasoned, Mr. Kennedy’s rights had

to ‘yield’ ” to the Establishment Clause. Id.

This Court expressly rejected the school’s

reasoning. Given that Kennedy’s post-game prayers

were private expression that the school never

endorsed, the school could not invoke the

Establishment Clause to justify restricting Kennedy’s

“otherwise protected First Amendment activities.” Id.

at 533.

Having

prohibited Kennedy’s private

religious expression, the school could not, when

challenged, claim that it had done so to comply with

the strictures of the Establishment Clause: “In this

way, the District effectively created its own ‘vise

between the Establishment Clause on one side and

the Free Speech and Free Exercise Clauses on the

other,’ placed itself in the middle, and then chose its

preferred way out of its self-imposed trap.” Id.

Similarly, in Trinity Lutheran, Espinoza, and

Carson, this Court rejected the government’s “the

Establishment Clause made me do it” defense. In

each of these cases, the government sought to exclude

religious groups from receiving otherwise generally

available public benefits. In Trinity Lutheran, this

Court rejected the Department’s attempt to hide

behind “Missouri’s policy preference for skating as far

as possible from religious establishment concerns.”

Trinity Lutheran Church of Columbia, Inc. v. Comer,

582 U.S. 449 462 (2012). In Espinoza, this Court

denied that Montana could exclude religious schools

from “a scholarship program for students attending

private schools” by “assert[ing] that the no-aid

provision serves Montana’s interest in separating

church and State ‘more fiercely’ than the Federal

Constitution.” Espinoza v. Montana Dept. of Rev., 591

U.S. 464, 468, 484 (2020). And in Carson v. Makin,

this Court held that Maine’s “antiestablishment

interest does not justify enactments that exclude some

members of the community from an otherwise

generally available public benefit because of their

religious exercise.” 596 U.S. 767, 781 (2022).

The lesson is clear yet unheeded by the courts

below. By rejecting Lemon and the endorsement test,

the Court has made it harder for the government to

invoke the Establishment Clause to justify

“discriminat[ion]

against

disfavored

religious

speakers,” Shurtleff, 596 U.S. at 285 (Gorsuch, J.,

concurring in the judgment), because the government

can no longer argue that the Establishment “Clause

‘compel[s] the government to purge from the public

sphere’ anything an objective observer could

reasonably infer endorses or ‘partakes of the

religious.’ ” Kennedy, 597 U.S. at 535 (citation

omitted). This is so because “no historically sensitive

understanding of the Establishment Clause can be

reconciled with a rule requiring governments to

‘roa[m] the land, tearing down monuments [or other

forms of expression] with religious symbolism and

scrubbing away any reference to the divine.”

Shurtleff, 596 U.S. at 288 (Gorsuch, J, concurring in

judgment) (quoting American Legion, 588 U.S. at 8485).

Yet this case is critically different from Kennedy.

Here, a parent acting on behalf of her child is invoking

the Establishment Clause in the “special context” of a

public school to stop the District’s use of “the

classroom … to advance religious views that may

conflict with [Hilsenrath’s] private beliefs.” Edwards,

482 U.S. at 584. In this setting, “there are heightened

concerns with protecting freedom of conscience from

subtle coercive pressure,” Lee, 505 U.S. at 592, and

the District’s educational “discretion must be

exercised in a manner that comports with the

transcendent imperatives of the First Amendment.”

Edwards, 482 U.S. at 583. As a result, this Court has

afforded parents and their children broad

Establishment Clause protection from the coercive

pressures within public schools. Wallace v. Jaffree,

472 U.S. 38, 61 (1985) (explaining the need for courts

to “[k]eep[] in mind … ‘both the fundamental place

held by the Establishment Clause in our

constitutional scheme and the myriad, subtle ways in

which Establishment Clause values can be eroded’ ”)

(quoting Lynch v. Donnelly, 465 U.S. 668, 694 (1984)

(O’Connor, J., concurring)); W.V. Bd. of Educ. v.

Barnette, 319 U.S. 624, 637 (1943) (“That [Boards of

Education] are educating the young for citizenship is

reason for scrupulous protection of Constitutional

freedoms of the individual.”).

The majority’s narrow view of Establishment

Clause

protection—limited

only

overt

proselytization and forced participation in religious

exercises—is inconsistent with the “generous

measure of protection” the Religion Clauses provide

parents and students in the public school context.

Mahmoud, 145 S.Ct. at 2351. The Establishment

Clause not only protects students from overt coercion,

but also helps “to guard and respect that sphere of

inviolable conscience and belief which is the mark of

a free people.” Lee, 505 U.S. at 592; McGowan v.

Maryland, 366 U.S. 420, 441-42 (1961) (“Thus, this

Court has given the [establishment of religion] a

‘broad interpretation … in the light of its history and

the evils it was designed forever to suppress.’ ”)

(citation omitted); Sch. Dist. of Abington Tp., PA v.

Schempp, 374 U.S. 203, 227 (1963) (Douglas, J.,

concurring) (noting that the “Establishment Clause,

serv[es] the same goal of individual religious

freedom,” as “the Free Exercise Clause”).

The threats to “conscience and belief” are

“heightened” in the school context given the “subtle

coercive pressure” that comes from the age of the

students and the government’s control over public

schools. Lee, 505 U.S. at 592. In “the classroom

setting, … the risk of compulsion is especially high,”

id. at 596, because “[s]tudents in such institutions are

impressionable and their attendance is involuntary.”

Edwards, 482 U.S. at 584. Through its schools, a

State “exerts great authority and coercive power

through mandatory attendance requirements, and

because of the students’ emulation of teachers as role

models and the children’s susceptibility to peer

pressure.” Id. at 584; Bethel Sch. Dist. No. 403 v.

Fraser, 478 U.S. 675, 683 (1986) (“Consciously or

otherwise, teachers [are] … [i]nescapably, like

parents, … role models.”).

The majority apparently ignores the special nature

of the classroom and downplays the threat the lessons

on Islam posed to Hilsenrath’s and C.H.’s religious

beliefs. While the lessons on Islam “may seem nothing

more than a reasonable request that [a student]

respect [and learn about Muslims’] religious practices,

in a school context may appear to [the student or

parent] to be an attempt to employ the machinery of

the State to [favor] a religious orthodoxy.” Lee, 505

U.S. at 592. Yet the majority repeatedly minimizes

the intrusion and impact of the religious content in the

assignments, emphasizing that the lessons on Islam

covered only “two class periods,” included a “fiveminute video” that had only two minutes of

“quotations from the Quran and a series of questions

and answers about Islam” with background chanting

that Hilsenrath and her son “did not understand,” did

not show the videos in class, and did not “explicitly

instruct the students to view the[ videos].” App. 17a.

“C.H. nonetheless watched [the two] videos at home

with his mother,” id. at 7a, but did so “ ‘as part of a

secular program of education.’ ” App. 17a (quoting

Schempp, 374 U.S. at 225).

Lee instructs, however, that “the intrusion of the

religious [lessons] cannot be refuted by arguing that

these [videos] … are of a de minimis character”

because “the intrusion is greater than the two minutes

or so of time consumed [watching videos] like these.”

Lee, 505 U.S. at 594. As in Lee, courts must

“[a]ssum[e] … that the [proselytizing content and]

prayers were offensive to the student and the parent

who now object.” App. 7a-8a (“Concerned about the

MENA

curriculum,

Hilsenrath

emailed

administrators and aired her complaints at a school

board meeting in February 2017.”). Accordingly, there

is no doubt that “the intrusion was … real” and that

the Third Circuit should have focused on whether the

lessons on Islam were, “in the context of a [middle]

school, a violation of the objectors’ rights.” Lee, 505

U.S. at 578.

To borrow from Lee once again, the majority’s

claim that the teacher did not require students to

watch the videos “is formalistic in the extreme.” Lee,

505 U.S. at 595.

Students were assigned the

PowerPoint slides discussing Islam and knew they

would be tested on the course materials.

The

PowerPoints included links to the two videos, and the

“Intro To Islam” slide directed students to “Watch this

video;” it was a directive, not a suggestion. Jt. App. at

416. And as part of the assignment, students were

instructed: “As you watch this video clip, write down

words that describe Islam as presented by this video.”

Id. The class was mandatory, and the teacher

assigned—and tested students on—the PowerPoint

slides, which included links to the challenged videos

on Islam. In fact, the superintendent acknowledged

that C.H. watched the videos because they were

assigned class materials. Jt. App. 343-44.

The majority also suggests that the fact the

instruction about Islam was part of a larger

curriculum somehow makes a constitutional

difference. It does not. The secular storybooks

mandated in Mahmoud were also one part of a

broader reading program, but this Court focused on

the subtle pressure that the storybooks—not the

larger educational program—imposed on students:

“For young children, to whom this and the other

storybooks are targeted, such celebration is liable to

be processed as having moral connotations. If this

same-sex marriage makes everyone happy and leads

to joyous celebration by all, doesn’t that mean it is in

every respect a good thing?” 145 S.Ct. at 2353. And

the Third Circuit should have done the same thing

here—analyze the subtle coercive pressures exerted

on students and parents to watch, study, and affirm

(through testing and discussion) the positive views

about Islam that the videos conveyed.2

The majority dismisses the religious nature of the Arabic

chants that played during the “Intro to Islam” video, suggesting

that such religious music has no bearing on the Establishment

Clause analysis because “neither [Hilsenrath] nor C.H. speaks

Arabic, so they did not understand the meaning of the chants

when they first watched the video.” App. 4a n.7. But such music

reinforces the religious nature of the lessons just as recordings

of monks chanting the “Pater Noster” during a class on

Christianity could impact how students experienced the lessons

even if they do not speak Latin and, consequently, do not

understand the specific words.

When younger students, like C.H., are taught that

a particular religion is widely followed, is the

foundation for “a tradition of unsurpassable splendor,

scientific thought and timeless art,” and has made

many “contributions to society,” art, and architecture,

they are apt to take Islam to be a good thing or

perhaps to be as good as their own religious traditions.

App. 5a; Mahmoud, 145 S.Ct. at 2353 (“High school

students may understand that widespread approval of

a practice does not necessarily mean that everyone

should accept it, but very young children are most

unlikely to appreciate that fine point.”). While many

Americans might agree with that view, “and it goes

without saying that they have every right to do so,”

“other Americans wish to present a different moral

message to their children [about different faith

traditions]. And their ability to present that message

is undermined when the exact opposite message is

positively reinforced in the public school classroom at

a very young age.” 145 S.Ct. at 2354.

What is critical here is that the videos are coercive

because they “carry with them ‘a very real threat of

undermining’ the religious beliefs that the parents

wish to instill in their children.” Id. at 2355 (quoting

Wisconsin v. Yoder, 406 U.S. 205, 218 (1972)). The

videos “impose upon children a set of values and

beliefs that are ‘hostile’ to their parents’ religious

beliefs” and “exert upon children a psychological

‘pressure to conform’ to their specific viewpoints.” Id.

(quoting Yoder, 406 U.S. at 211). And the Third

Circuit panel’s differing tests did not consider, let

alone discuss, these “heightened concerns” or how Lee

and Edwards affected the Establishment Clause

analysis.

II. By recognizing that content in public

schools can conflict with a parent’s religious

beliefs, Mahmoud v. Taylor further

undermines the Third Circuit’s unduly

narrow view of the types of coercion that

violate a parent’s right to direct the

religious upbringing of her child under the

Establishment Clause.

Although

Mahmoud

was

decided

after

Hilsenrath, Mahmoud’s discussion of the Religion

Clauses and the broad protection accorded parents

and students in school settings bears directly on this

case. First, Mahmoud confirms that neither parents

nor students “shed” their First Amendment rights “at

the schoolhouse gate.” Tinker v. De Moines Indep.

Sch. Dist., 393 U.S. 503, 506 (1969).

Second,

Mahmoud explains that Free Exercise Clause

safeguards parents and their children from

instruction that undermines religious beliefs.

Mahmoud,145 S.Ct. at 2349 (discussing parents’

“right ‘to direct the religious upbringing of their

children.’ ”) (quoting Yoder, 406 U.S. at 218). If this

sounds familiar, it should. As discussed above, Lee

and Edwards make clear that subtle pressures

interfering with this right in public school instruction

violate the Establishment Clause. Edwards, 482 U.S.

at 584; Lee, 505 U.S. at 592.

Given the “complementary purposes” of the

Religion Clauses, Kennedy, 597 U.S. at 533, this

overlap is not surprising. After all, the Religion

Clauses work together to prevent the government

from coercing both religious beliefs and participation

in religious exercises, ensuring that “the preservation

and transmission of religious beliefs and worship is a

responsibility and a choice committed to the private

sphere, which itself is promised freedom to pursue

that mission.” Lee, 505 U.S. at 589; Schempp, 374

U.S. at 217 (describing “[t]he interrelationship of the

Establishment and the Free Exercise Clauses”).

Accordingly, the Free Exercise and Establishment

Clauses prevent even subtle forms of coercion that

interfere with a parent’s right to direct the religious

training of her son. Mahmoud, 145 S.Ct. at 2350.

Mahmoud makes this connection express. While

“Barnette dealt with an especially egregious kind of

direct coercion …[,] that does not mean that the

protections of the First Amendment extend only to

policies that compel children to depart from the

religious practices of their parents.” Id. at 2352. The

Free Exercise Clause also “protects against policies

that impose more subtle forms of interference with

the religious upbringing of children.” Id. And Lee

said the same thing in the Establishment Clause

context—that the State’s “duty to guard and respect

that sphere of inviolable conscience and belief”

includes “protecting freedom of conscience from subtle

coercive pressure.” 505 U.S. at 592.

Just as the parents in Mahmoud were not required

to “ ‘show direct or indirect coercion arising out of the

exposure’ to the storybooks,” 145 S.Ct. at 2349.

Hilsenrath should not have been required to do so in

relation to the lessons on Islam. Yet the district court

and majority did just that.

The district court

demanded “evidence of significant coercion,” imposing

a robust requirement on plaintiffs based on Justice

Scalia’s dissent in Lee: “Even through an objective lens,

however, the materials cannot be viewed as tending to

compel a student ‘by force of law and threat of penalty,’

to adhere to a particular religious belief or participate

in a particular religious practice.” App. 50a (quoting

Lee, 505 U.S. at 640-42 (Scalia, J., dissenting)). The

majority required Hilsenrath to demonstrate that the

District “force[d her son] to engage in a formal religious

exercise”

engaged

“impermissible

proselytization.” App. 16a, 18a. (cleaned up).

But Mahmoud confirms what Lee first

indicated—that this is a false dichotomy. To establish

a First Amendment claim, parents are not required to

show that a school’s policy “would compel [their]

children to make an affirmation that was contrary to

their parents’ or their own religious beliefs” or that

their “children would be compelled to commit some

specific practice forbidden by their religion.” Id. at

2352; id. at 2349 (rejecting the Fourth Circuit’s claim

that parents could succeed on their free exercise claim

only if they “show[ed] direct or indirect coercion

arising out of the exposure” to the storybooks). Given

the age of the students and the nature of the school

context, impermissible coercion includes “more subtle

forms of interference with the religious upbringing of

children.” Id.

Because Mahmoud was decided after Hilsenrath,

the Third Circuit did not have the benefit of

Mahmoud’s analysis. Because the Free Exercise and

Establishment Clauses both protect Hilsenrath’s

right to direct her son’s religious upbringing, the

panel should be given that opportunity. Edwards,

482 U.S. at 584 (explaining how the Establishment

Clause ensures “that the classroom will not purposely

be used to advance religious views that may conflict

with the private beliefs of the student and his or her

family”); Lee, 505 U.S. at 589 (“The design of the

[Religion Clauses] is that preservation and

transmission of religious beliefs and worship is a

responsibility and a choice committed to the private

sphere.”); Mahmoud, 145 S.Ct. at 2351 (“The practice

of educating one’s children in one’s religious beliefs …

receives a generous measure of protection from our

Constitution.”).

This is especially important given the significant

similarities between the storybooks in Mahmoud and

the Islam lessons here. The District assigned videos

about Islam that “present certain values and beliefs

as things to be celebrated.” Id. at 2353. These videos

were created to support and promote Islam. Not

surprisingly, then, the videos, like the storybooks in

Mahmoud, “are unmistakably normative.” Id. at

2353. They celebrate Islam as well as “Muslim

contributions to society.” App. 6a. The second video

concludes “by providing an email address,” so viewers

can obtain more information, and “a website through

which viewers can ‘organise a mosque tour, or order

an information pack.’ ” App. 7a.

No matter how well-intentioned they might be,

the videos and lessons “carry with them ‘a very real

threat of undermining’ the religious beliefs that the

parents wish to instill in their children,” because of

the content of the videos coupled with “the potentially

coercive nature of classroom instruction of this kind.”

145 S.Ct. at 2355. Given “the students’ emulation of

teachers as role models and the children’s

susceptibility to peer pressure,” the District “exerts

great authority and coercive power through” its

curriculum. Edwards, 482 U.S. at 584; Lee, 505 U.S.

at 592. As Mahmoud instructs, “[y]oung children, like

[petitioner’s son], are often ‘impressionable’ and

‘implicitly trus[t]’ their teachers.” 145 S.Ct. at 2355.

Consider what is apt to happen if a student

disagreed with the positive views about Islam that

were presented in the videos and PowerPoint slides.

The lessons on Islam were part of a larger lesson on

“Critical Thinking[:] Making Generalizations with

Content.”

App. 17a.

And the slides provided

examples of, what the school (apparently) viewed as,

true generalizations about Muslims, teaching

students that the media (and possibly the students’

parents) have an improperly negative or dismissive

view of Muslims and Islam. Jt. App. at 414 (requiring

students to determine whether “There’s rarely a

mention of Muslims in the media that doesn’t have to

do with violence” and “In day-to-day coverage,

Muslims are largely absent: Muslim festivals like

Ramadan often come and go with little note” are true

generalizations).

Suppose a student said that “The Qur’an preaches

violence” or “Many Muslims want to destroy America,

the Great Satan”? Based on the positive nature of all

the materials presented on Islam, a teacher might

(understandably) tell the student that such claims are

faulty generalizations and, in so doing, might

(unknowingly) challenge the religious beliefs of the

student or his parents. The problem is that normative

lessons on Islam “advance religious views that may

conflict with the private beliefs of the student and his

or her family,” Edwards, 482 U.S. at 584, thereby

violating the principles articulated in Mahmoud and

Lee.

Moreover, in Mahmoud it did not matter that the

LGBTQ+-inclusive books were required “ ‘as part of a

secular program of education’ ” or that the lessons on

gender identity were “ ‘integrated into the school

curriculum’ as part of ‘an appropriate study of”

children’s literature. App. 17a (quoting Schempp, 374

U.S. at 225 and Stone v. Graham, 449 U.S. 39, 42

(1980)). The constitutional problem stemmed from

the storybooks’ “pos[ing] ‘a very real threat of

undermining’ the religious beliefs and practices that

the parents wish to instill.” 145 S.Ct. at 2342 (quoting

Yoder, 406 U.S. at 218). Like the storybooks in

Mahmoud, the District’s lessons on Islam

undermined the religious beliefs and practices that

Hilsenrath sought to instill in her son by teaching the

tenets of that faith, promoting the virtues of Islam,

and requiring students to watch a video that

encouraged a non-Muslim to join in Muslim prayer

after learning about the Five Pillars of that faith.

App. 6a. The videos also extolled the virtues of Islam,

discussing how “Muslims created a tradition of

unsurpassable splendor, scientific thought and

timeless art” and concluding with “May God help us

all find the true faith, Islam … Ameen.” App. 5a;

Mahmoud, 145 S.Ct. at 2345-46 (“The parent felt that

the Board was ‘implying to [children] that their

religion, their belief system, and their family

tradition is actually wrong.”).

The Establishment Clause ensures, among other

things, “that the classroom will not purposely be used

to advance religious views that may conflict with the

private beliefs of the student and his or her family.”

Edwards, 482 U.S. at 584. This protection stems

directly from “the lesson of history that was and is the

inspiration for the Establishment Clause, the lesson

that in the hands of government what might begin as

a tolerant expression of religious views may end in a

policy to indoctrinate and coerce.” Lee, 505 U.S. at

591-92. While learning that there are different

religious holidays or about “the doctrinal disputes …

that fueled the Protestant Revolution” may not

conflict with the private beliefs of parents or students,

being taught that Islam is the “true faith” or

normalizing prayer in other faith traditions might—

and did in this case. Contrary to the majority’s

suggestion, class materials that “advance religious

views” that conflict with parents’ religious beliefs—

even views that a school district may agree with or

think should be encouraged (such as the LGBTQ+inclusive books in Mahmoud) can cross the line

between

permissible

class

instruction

and

impermissible infringement on parental rights under

the Establishment Clause.

Whereas Kennedy completed the shift away from

Lemon, Mahmoud reinvigorated Yoder, explaining

that it “is an important precedent of this Court, and

it cannot be breezily dismissed as a special exception

granted to one particular religious minority.” 145

S.Ct. at 2357. As a result, lower courts can no longer

ignore that Yoder “embodies a principle of general

applicability” and that its underlying “principle

provides more robust protection for religious liberty

than the alarmingly narrow rule that” the Fourth and

Third Circuits applied in Mahmoud and Hilsenrath,

respectively. Id. In sum, Mahmoud confirms that the

decisions in Edwards and Lee, not the decision in

Kennedy, identify the coercion that counts under the

Establishment Clause when parents or students

object to religious content.

As Hilsenrath demonstrates, the lower courts did

not know to—and therefore did not—heed the lessons

of Mahmoud and Yoder. As a result, they adopted a

narrow view of coercion that afforded no protection for

a parent’s right to direct the religious upbringing of

her child. Mahmoud rejected “this chilling vision of

the power of the state to strip away the critical right

of parents to guide the religious development of their

children.” 145 S.Ct. at 2358. In its place, this Court

reaffirmed Yoder and Barnette, which “embody a very

different view of religious liberty, one that comports

with the fundamental values of the American people.”

Id.

This Court, therefore, should grant this petition,

vacate the Third Circuit opinion, and remand the case

to the Third Circuit, giving the panel the opportunity

to determine in the first instance how this Court’s

reasoning in Mahmoud affects Establishment Clause

claims in the public school context.

CONCLUSION

For the reasons given above, this Court should

grant the petition for certiorari or, in the alternative,

remand the case for reconsideration in light of

Mahmoud.

Respectfully submitted,

Richard Thompson

Counsel of Record

Thomas More Law Center

24 Frank Lloyd Wright Drive

P.O. Box 393

Ann Arbor, MI 48106

Tel: (734) 827-2001

rthompson@thomasmore.org

September 2, 2025

Michael P. Hrycak

129 Beech Street

Cranford, NJ 07016

Tel: (908) 789-1870

michaelhrycak@yahoo.com

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT, FILED MAY 5, 2025 . . . . . . . . 1a

APPENDIX B — SUPPLEMENTAL OPINION

ON REMAND OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

NEW JERSEY, FILED OCTOBER 16, 2023 . . . . 27a

APPENDIX C — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY, FILED

OCTOBER 16, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . 56a

APPENDIX D — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT,

FILED JUNE 3, 2025 . . . . . . . . . . . . . . . . . . . . . . . 58a

APPENDIX E — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT, FILED JULY 20, 2022 . . . . . . 60a

APPENDIX F — OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY, FILED

NOVEMBER 12, 2020 . . . . . . . . . . . . . . . . . . . . . . . 62a

Table of Appendices

Page

A P P E N DI X G — C O M P L A I N T A N D

DEMAND FOR JURY TRIAL OF THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY,

FILED JANUARY 23, 2018 . . . . . . . . . . . . . . . . . 103a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT,

FILED MAY 5, 2025

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 23-3030

LIBBY HILSENRATH, ON BEHALF

OF HER MINOR CHILD, C.H.,

Appellant

SCHOOL DISTRICT OF THE CHATHAMS; BOARD

OF EDUCATION OF THE SCHOOL DISTRICT OF

THE CHATHAMS; MICHAEL LASUSA, IN HIS

OFFICIAL CAPACITY AS THE SUPERINTENDENT

OF THE SCHOOL DISTRICT OF CHATHAMS;

KAREN CHASE, IN HER OFFICIAL CAPACITY

AS THE ASSISTANT SUPERINTENDENT OF

CURRICULUM AND INSTRUCTION AT THE

SCHOOL DISTRICT OF THE CHATHAMS; JILL

GIHORSKI, IN HER OFFICIAL CAPACITY AS THE

PRINCIPAL OF CHATHAM MIDDLE SCHOOL;

STEVEN MAHER, IN HIS OFFICIAL CAPACITY

AS THE SUPERVISOR OF SOCIAL STUDIES FOR

THE SCHOOL DISTRICT OF THE CHATHAMS;

MEGAN KEOWN, IN HER OFFICIAL CAPACITY

AS A SOCIAL STUDIES TEACHER FOR CHATHAM

MIDDLE SCHOOL; CHRISTINE JAKOWSKI, IN

HER OFFICIAL CAPACITY AS A SOCIAL STUDIES

TEACHER FOR CHATHAM MIDDLE SCHOOL

Appendix A

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2:18-cv-00966)

District Judge: Honorable Kevin McNulty

Argued on October 29, 2024

Before: HARDIMAN, PHIPPS, and FREEMAN,

Circuit Judges.

(Filed: May 5, 2025)

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This appeal concerns the constitutionality of a middle

school social studies curriculum. Libby Hilsenrath sued

the Board of Education of the School District of the

Chathams over instructional videos about Islam in her

son’s seventh-grade World Cultures and Geography class.

She claimed the Board violated the Establishment Clause

of the First Amendment by assigning the videos. Applying

recent pathmarking decisions of the Supreme Court, the

District Court disagreed and granted summary judgment

to the Board. Hilsenrath filed this appeal. Because the

school’s curriculum does not resemble a traditional

hallmark of religious establishment, we will affirm.

Appendix A

During the 2016-2017 school year, C.H. was a seventhgrade student at Chatham Middle School. He was enrolled

in a mandatory World Cultures and Geography class

taught in part by long-term substitute Christine Jakowski.

The class canvassed world regions to help students “gain

a greater sense of the world around them” and “become

active and informed global citizens.”1 Many resources for

the class, such as “calendars, handouts, assignment and

project directions, and grading guidelines,” were located

on Google Classroom. 2

The class was organized into seven units, six of which

focused on a different region of the world. Within each of

these units, students explored the history and culture of

the highlighted region, which sometimes included studying

its predominant religion. During the Latin America unit,

students learned about Christianity. And in the East Asia

unit, students viewed PowerPoint slides and videos about

Buddhism and Hinduism. The curriculum implemented

state standards, including that students will be able

to “[c]ompare and contrast the tenets of various world

religions.” 3

1. App. 439.

2. App. 441.

3. App. 127.

Appendix A

Students encountered Islam during two class periods

within the “Middle East and North Africa” (MENA)

unit, both taught by Ms. Jakowski. The first lesson was

presented through a set of PowerPoint slides entitled

“Teaching Critical Thinking[:] Making Generalizations

with Content.”4 That presentation instructed students

that “[a] generalization is a broad, universal statement

of understanding based on specific facts and data” and

cautioned that “[s]ome are valid” and “others are invalid

or faulty.”5 To test students’ understanding, the final slide

directed them to identify generalizations in a hyperlinked

YouTube video and to label them either “valid or faulty.”6

That five-minute video, entitled “Intro to Islam,”

contains images and written text. Instead of a voiceover,

the video features background music and Arabic chants.7

The first half of the video alternates between quotations

from the Quran and a series of questions and answers

about Islam, including:

• “What is Islam?” “Faith of divine guidance

for Humanity, based on peace, spirituality

4. App. 407.

5. App. 409, 413.

6. App. 416.

7. Since filing this lawsuit, Hilsenrath has produced what she

believes to be the English translation of the Arabic chants sung in

the Intro to Islam video. But neither she nor C.H. speaks Arabic,

so they did not understand the meaning of the chants when they

first watched the video.

Appendix A

and the oneness of God.”8

• “Who is Allah?” “Allah is the one God who

created the heavens and the earth, who has

no equal and is all powerful.” 9

• “Who is Muhammad (S)?” “Muhammad

(Peace be upon him) is the last & final

Messenger of God. God gave him the Noble

Quran.”10

• “ W hat is the Noble Quran?” “Divine

revelation sent to Muhammad (S) last

Prophet of Allah. A Perfect guide for

Humanity.”11

• “What does history say about Islam?”

“ Musl i ms creat ed a t rad it ion of

unsurpassable splendor, scientific thought

and timeless art.”12

After about two minutes, the video turns to a discussion

of “Islamic Art and Architecture,” as well as other

8. Intro to Islam at 0:17.

9. Id. at 0:29.

10. Id. at 1:01.

11. Id. at 1:38.

12. Id. at 2:10.

Appendix A

Muslim contributions to society.13 Finally, text on the last

substantive slide reads “May God help us all find the true

faith, Islam . . . Ameen.”14

The second class in the MENA unit introduced

students to “the 5 Pillars of Faith” and the “impact/

significance of them in the Muslim culture.”15 This lesson

included a different PowerPoint presentation, entitled

“Introduction to Islam.”16 The slides gave students a broad

overview of Islam, including: the symbol of Islam; key

figures in Islam; the Quran; demographic statistics about

Muslims; and a summary of the Five Pillars of Islam. The

slides also included a hyperlink to a YouTube video entitled

“The 5 Pillars of Islam.”17

“The 5 Pillars of Islam” is an animated cartoon. The

video features a conversation between two children, a nonMuslim named Alex and a Muslim named Yusuf. Curious,

Alex asks Yusuf a series of questions about Islam. Yusuf

responds by explaining that “Muslims believe that there

is only one God,” whose name is “Allah” and who “is the

creator of everything.”18 After describing the Five Pillars,

Yusuf invites Alex to join him in prayer. The video closes

13. Id. at 2:13.

14. Id. at 4:40.

15. App. 461.

16. App. 224, 386.

17. App. 395.

18. 5 Pillars of Islam at 1:20-1:29.

Appendix A

by providing an email address and a website through

which viewers can “organise a mosque tour, or order an

information pack.”19

At the end of the second lesson, students completed

a “Scavenger Notes Activity,” a worksheet instructing

them to “[t]ake notes using the slides” and to “[f]ill in

the blanks AND correct the false information” scattered

throughout. 20 One section of the worksheet read as follows:

Pillar 1: Belief/Faith (Shahadah)

The basic statement of the Islamic faith:

“There is no god but and is his

messenger.”

This statement is the centrifugal force to their

religion. 21

Although Ms. Jakowski presented both sets of

PowerPoint slides to the students, she did not show either

video in class or explicitly instruct the students to view

them. C.H. nonetheless watched the “Intro to Islam”

and “5 Pillars” videos at home with his mother, Libby

Hilsenrath. Concerned about the MENA curriculum,

Hilsenrath emailed administrators and aired her

19. Id. at 5:18.

20. App. 418-22, 461.

21. App. 420.

Appendix A

complaints at a school board meeting in February 2017.

At a later meeting, the Board defended its curriculum as

a proper application of the school’s policy on religion in the

classroom. But citing “disruption,” the school ultimately

removed the video links from the MENA unit PowerPoint

slides. 22

Hilsenrath sued the District, the Board, and several

teachers and administrators on behalf of her minor son,

C.H., claiming that the school’s MENA curriculum violated

the Establishment Clause of the First Amendment. She

sought an injunction, a declaratory judgment, nominal

damages, and attorney’s fees.

After denying the Defendants’ motion to dismiss,

the District Court considered the parties’ cross-motions

for summary judgment. The Court first determined

that Hilsenrath lacked standing to seek injunctive and

declaratory relief because her son was no longer enrolled

in the World Cultures and Geography class. It then

dismissed the claims against all defendants except the

Board, finding that the Board alone is “the legal entity

responsible for the decisions that are challenged here.” 23

On the merits, the District Court applied Lemon v.

22. App. 358.

23. Hilsenrath v. Sch. Dist. of Chathams, 500 F. Supp. 3d

272, 287-89 (D.N.J. 2020), vacated and remanded, 2022 U.S. App.

LEXIS 20588, 2022 WL 2913754 (3d Cir. July 20, 2022).

Appendix A

Kurtzman, 24 found no Establishment Clause violation,

and granted the Board’s motion for summary judgment.

Hilsenrath timely appealed. After hearing oral argument,

this Court vacated the District Court’s judgment and

remanded in view of the Supreme Court’s decision in

Kennedy v. Bremerton School District. 25

On remand, the District Court again considered

the parties’ cross-motions for summary judgment. The

Court first noted that its holdings concerning standing

and proper parties were “not implicated by Kennedy

and therefore remain[ed] intact,” leaving it to decide only

“Ms. Hilsenrath’s Establishment Clause claim for nominal

damages.” 26 Turning to the merits, the District Court

observed that Kennedy “clearly reject[ed] the Lemon

test” in favor of a “historical analysis.” 27 Under that new

standard, the Court concluded that none of the materials

in the MENA unit resembled the “hallmarks associated

with establishment of religion.” 28 In particular, the Court

found “no evidence of significant coercion,” which the

Kennedy Court had called one of the “foremost hallmarks

24. 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971).

25. 597 U.S. 507, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022).

26. Hilsenrath v. Sch. Dist. of the Chathams, 698 F. Supp.

3d 752, 760 & n.11 (D.N.J. 2023). Because Hilsenrath waived

the standing and proper parties issues in her brief and at oral

argument, we likewise consider only her nominal damages claim

against the Board.

27. Id. at 761 (cleaned up).

28. Id. at 765 (cleaned up).

10a

Appendix A

of religious establishments.” 29 So the District Court

granted summary judgment for the Board on Hilsenrath’s

nominal damages claim. Hilsenrath timely appealed.

The District Court had jurisdiction under 28 U.S.C.

§§ 1331 and 1343(a)(3). We have jurisdiction under 28

U.S.C. § 1291. Summary judgment may be granted only

when “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to

judgment as a matter of law.” 30 “We review de novo the

District Court’s resolution of cross-motions for summary

judgment.” 31

III

The Establishment Clause provides that “Congress

shall make no law respecting an establishment of

religion.” 32 Since the ratification of the First Amendment

in 1791, Congress has obeyed that straightforward

prohibition. But things started to get complicated in 1947

when, in Everson v. Board of Education, the Supreme

29. Id. at 763 (cleaned up).

30. Fed. R. Civ. P. 56(a).

31. Spivack v. City of Phila., 109 F.4th 158, 165 (3d Cir. 2024)

(cleaned up).

32. U.S. Const. amend. I.

11a

Appendix A

Court applied the Establishment Clause to the States

through the Fourteenth Amendment. 33 Once the Court

applied the Clause—which seemed to honor a rudimentary

federalism principle 34 —to interactions between local

governments and religion, the federal courts were beset

with complaints of unconstitutional conduct. 35

Those cases led to the Supreme Court’s decision

in Lemon v. Kurtzman, 36 which tried “to distill from

the Court’s existing case law a test that would bring

order and predictability to Establishment Clause

decisionmaking.” 37 Lemon created a three-part test

to assess the constitutionality of a practice by asking

whether: (1) “the government practice had a secular

purpose”; (2) “its principal or primary effect advanced

33. 330 U.S. 1, 15, 67 S. Ct. 504, 91 L. Ed. 711 (1947).

34. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542

U.S. 1, 49-51, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004) (Thomas,

J., concurring in the judgment) (citing Akhil Reed Amar, The Bill

of Rights 36-39 (1998)).

35. See, e.g., Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679,

96 L. Ed. 954 (1952) (released time religious instruction); Engel v.

Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962) (school

prayer); Bd. of Ed. v. Allen, 392 U.S. 236, 88 S. Ct. 1923, 20 L. Ed.

2d 1060 (1968) (publicly funded textbooks in parochial schools);

Walz v. Tax Comm’n, 397 U.S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d

697 (1970) (tax exemptions for religious organizations).

36. 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971).

37. Am. Legion v. Am. Humanist Ass’n, 588 U.S. 19, 48, 139

S. Ct. 2067, 204 L. Ed. 2d 452 (2019) (plurality opinion).

12a

Appendix A

or inhibited religion”; and (3) “it created an excessive

entanglement of the government with religion.” 38

The Lemon test had a short shelf life. In a concurring

opinion in Lynch v. Donnelly, Justice O’Connor opined

that the constitutionality of a religious practice depended

on whether a reasonable observer would conclude

that the government was “endors[ing]” religion. 39

This “endorsement test” became the law in County of

Allegheny v. American Civil Liberties Union.40 But even

after the endorsement test gained currency, the Lemon

test sometimes reared its head like “some ghoul in a

late-night horror movie.”41 “[I]nstead of bringing

clarity to” the Supreme Court’s Establishment Clause

jurisprudence, “Lemon produced only chaos.”42 Over time,

38. Doe v. Indian River Sch. Dist., 653 F.3d 256, 271 (3d Cir.

2011) (citing Lemon, 403 U.S. at 612-13).

39. 465 U.S. 668, 687-89, 104 S. Ct. 1355, 79 L. Ed. 2d 604

(1984) (O’Connor, J., concurring).

40. 492 U.S. 573, 592-94, 109 S. Ct. 3086, 106 L. Ed. 2d 472

(1989).

41. Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,

508 U.S. 384, 398, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993) (Scalia,

J., concurring in the judgment).

42. Shurtleff v. City of Bos., 596 U.S. 243, 277, 142 S. Ct. 1583,

212 L. Ed. 2d 621 (2022) (Gorsuch, J., concurring in the judgment).

13a

Appendix A

Lemon has been criticized,43 amended,44 and altogether

ignored.45

Out of this chaos came Kennedy, where the Supreme

Court clarified that it “long ago abandoned Lemon and its

endorsement test offshoot.”46 Building on decisions such

as Town of Greece v. Galloway47 and American Legion

v. American Humanist Ass’n,48 the Court “instructed

that the Establishment Clause must be interpreted by

reference to historical practices and understandings.”49

This kind of historical inquiry “requires serious

work.”50 And that work is especially challenging here

because “free public education was virtually nonexistent at

the time the Constitution was adopted.”51 But “[h]istorical

43. See, e.g., Lamb’s Chapel, 508 U.S. at 398 (Scalia, J.,

concurring in the judgment).

44. See, e.g., Cnty. of Allegheny, 492 U.S. at 593.

45. See, e.g., Marsh v. Chambers, 463 U.S. 783, 793-94, 103

S. Ct. 3330, 77 L. Ed. 2d 1019 (1983).

46. 597 U.S. at 534.

47. 572 U.S. 565, 134 S. Ct. 1811, 188 L. Ed. 2d 835 (2014).

48. 588 U.S. 19, 139 S. Ct. 2067, 204 L. Ed. 2d 452 (2019).

49. Kennedy, 597 U.S. at 535 (cleaned up).

50. Shurtleff, 596 U.S. at 285 (Gorsuch, J., concurring in the

judgment).

51. Edwards v. Aguillard, 482 U.S. 578, 583 n.4, 107 S. Ct.

2573, 96 L. Ed. 2d 510 (1987).

14a

Appendix A

tradition can be established by analogical reasoning,”52

and history teaches that established churches often bore

certain “telling traits”:

First, the government exerted control over

the doctrine and personnel of the established

church. Second, the government mandated

attendance in the established church and

punished people for failing to participate.

Third, the government punished dissenting

churches and individuals for their religious

exercise. Fourth, the government restricted

political participation by dissenters. Fifth,

the government provided financial support

for the established church, often in a way that

preferred the established denomination over

other churches. And sixth, the government

used the established church to carry out certain

civil functions, often by giving the established

church a monopoly over a specific function. 53

So to prevail on her Establishment Clause claim, Hilsenrath

must show that the Board’s MENA curriculum resembles

one of these hallmarks of religious establishment. 54

52. Range v. Att’y Gen. United States, 124 F.4th 218, 228 (3d

Cir. 2024) (en banc).

53. Shurtleff, 596 U.S. at 286 (Gorsuch, J., concurring in

the judgment) (citing Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I: Establishment of

Religion, 44 Wm. & Mary L. Rev. 2105, 2110-12, 2131-81 (2003)).

54. Hilsenrath and Amicus Americans United insist that

15a

Appendix A

Hilsenrath proffers two constitutional flaws in the

MENA curriculum, likening each to a hallmark of religious

establishment. The first is coercion: she claims that the

Board did something like “mandat[ing] attendance in the

established church” by requiring C.H. to view “religious

indoctrination videos.”55 The second is non-neutrality:

by emphasizing Islam in its curriculum, she reasons,

the Board effectively “provided financial support for

the established church . . . in a way that preferred the

established denomination over other churches.”56 Neither

argument is persuasive.

Hilsenrath first argues that the Board coerced her

son into religious practice when it subjected him to

“direct proselytizing.”57 To be sure, coercion was one of

the “foremost hallmarks of religious establishments” at

Shurtleff did not enumerate an exhaustive list of practices that

violate the Establishment Clause under a historical approach. True

enough. But we agree with our sister circuit that under Kennedy,

“the plaintiff has the burden of proving a set of facts that would

have historically been understood as an establishment of religion.”

Firewalker-Fields v. Lee, 58 F.4th 104, 122 n.7 (4th Cir. 2023). So

even if Shurtleff does not cabin the Establishment Clause inquiry,

it was Hilsenrath’s burden to expand its reach.

55. Reply Br. 11 (citation omitted).

56. Reply Br. 17 (citation omitted).

57. Hilsenrath Br. 23.

16a

Appendix A

the founding, 58 and it has played a prominent role in many

of the Court’s school prayer cases. For instance, in Lee v.

Weisman, the Court invalidated a public school district’s

practice of inviting a member of the clergy to recite a

nonsectarian benediction at its graduation ceremonies,

explaining that the benediction imposed a “subtle and

indirect” coercive effect on the students. 59 And in Santa

Fe Independent School District v. Doe, the Court held that

a public high school violated the Establishment Clause

when it permitted a student to recite a prayer over a

public address system before each varsity football game,

again concluding that the prayer coerced spectators into a

religious practice.60 History and precedent therefore make

clear that schools may not “force [students] to engage in

a formal religious exercise.”61

But not all school activities touching on religion

amount to “formal religious exercise.” 62 While there

may be circumstances in which public schools violate

the Establishment Clause by subjecting students

to proselytizing materials, the Supreme Court has

cautioned against “[f]ocus[ing] exclusively on the religious

58. Kennedy, 597 U.S. at 537 (citations omitted).

59. 505 U.S. 577, 586-87, 593, 112 S. Ct. 2649, 120 L. Ed. 2d

467 (1992).

60. 530 U.S. 290, 311-12, 120 S. Ct. 2266, 147 L. Ed. 2d 295

(2000).

61. Kennedy, 597 U.S. at 537 (cleaned up).

62. Id.

17a

Appendix A

component of any activity.”63 Instead, we must look at the

whole record to discern the “proper context” in which an

ostensibly religious activity took place.64 For example,

while a teacher might recite the Ten Commandments as

an act of worship, she could also use them to introduce

students to the fundamental tenets of a major world

religion.65 Context is key.

The record here shows that the Board did not

proselytize. Even assuming students were compelled

to watch the “Intro to Islam” and “5 Pillars” videos—a

point which the parties dispute—they did so “as part

of a secular program of education.”66 The videos were

embedded in PowerPoint slides entitled “Introduction to

Islam” and “Making Generalizations with Content,” which

were presented during two sessions of a year-long class

that also covered Christianity, Judaism, Buddhism, and

Hinduism.67 In short, the MENA lesson was “integrated

into the school curriculum” as part of “an appropriate

study of history, civilization,” and “comparative religion.”68

63. Lynch, 465 U.S. at 680.

64. Id.

65. See Stone v. Graham, 449 U.S. 39, 42, 101 S. Ct. 192,

66 L. Ed. 2d 199 (1980) (“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.”).

66. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203,

225, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963).

67. App. 386, 407.

68. Stone, 449 U.S. at 42.

18a

Appendix A

That context distinguishes this case from the

Supreme Court’s decisions addressing proselytization

in public schools. For instance, the “released time”

program invalidated in Illinois ex rel. McCollum v.

Board of Education was established to instruct public

school students in religious truth.69 The Bible readings

invalidated in Schempp were designed for “the promotion

of moral values . . . .” 70 In Lee, the unconstitutional

benediction sought to “give thanks to [the] Lord[] for

keeping us alive, sustaining us and allowing us to reach

this special, happy occasion.”71 And in Santa Fe, the school

offered pre-game prayer “to solemnize the event . . . .” 72

Here, by contrast, the Board assigned videos to help

students “understand what a generalization is and the

benefits and consequences of using them” and to “explore

the 5 Pillars of Faith and be able to explain the impact/

significance of them in the Muslim culture.” 73 Because the

“Intro to Islam” and “5 Pillars” videos were presented in

an academic rather than devotional context, they do “not

come close to crossing any line” separating permissible

curricular materials from impermissible proselytization.74

69. 333 U.S. 203, 231, 68 S. Ct. 461, 92 L. Ed. 649 (1948).

70. 374 U.S. at 223.

71. 505 U.S. at 582 (citation omitted).

72. 530 U.S. at 306 (citation omitted).

73. App. 460–61.

74. Kennedy, 597 U.S. at 537.

19a

Appendix A

Hilsenrath next argues that, even if the Board did not

coerce students or otherwise proselytize, its curriculum

still matches a hallmark of religious establishment because

it favors Islam over other faiths. But even assuming the

Establishment Clause requires equal treatment in primary

and secondary school curricula,75 the record does not show

favoritism here. Besides Islam, C.H. and his classmates

were introduced to Christianity, Judaism, Buddhism,

and Hinduism. And the World Cultures and Geography

course represented only a sampling of the expansive world

religions curriculum offered at the School District of the

Chathams. As early as kindergarten, students learn about

religious holidays such as Hanukkah and Christmas. That

instruction continues through high school, when students

analyze, among other things, “the doctrinal disputes . . .

that fueled the Protestant Reformation.” 76

75. The parties and amici disagree over whether preferential

treatment itself constitutes an Establishment Clause violation

after Kennedy. Hilsenrath argues that “Kennedy did not alter

the fundamental demand of the Establishment Clause that the

government not prefer one religion over another.” Hilsenrath

Br. 49. Amicus Jewish Coalition counters that a free-floating

neutrality “standard” would cause “phantom constitutional

violations”; it urges tighter alignment with traditional hallmarks of

religious establishment, such as preferential government funding.

Jewish Coalition Br. 21 (cleaned up). Because world religions were

treated equally in C.H.’s World Cultures and Geography class, we

leave for another day whether curricular non-neutrality violates

the Establishment Clause.

76. App 189.

20a

Appendix A

Hilsenrath counters that, unlike the instruction on

other religions, the MENA lesson “extol[led] Islam over all

other faiths and encourage[d] conversion to the religion.” 77

This argument once again ignores context. It is true that

the creator of the Intro to Islam video described Allah

as “the one God” and Islam as “the true faith.” 78 But the

videos were embedded within PowerPoint slides that refer

to Muslims exclusively in the third person, repeatedly

describing what “Muslims believe.”79 The “Introduction to

Islam” worksheet did the same, detailing Muslim beliefs

and practices only from the perspective of a nonbeliever.

Even apart from instructional materials, the record

contains no evidence that Ms. Jakowski is a Muslim or

that she ever tried to convert her students to Islam. So

assuming the Establishment Clause required the Board

to treat religions equally, the record shows that it satisfied

that requirement here.

* * *

The United States of America is not Sparta, where

children were considered wards of the state. Parents are

the first and most important teachers of their children.

But once children enter public school, the curriculum is

dictated by local government policy, typically by an elected

school board. That local arena is the proper place for

77. Reply Br. 19.

78. Intro to Islam at 0:29, 4:40.

79. App. 389-91.

21a

Appendix A

debate and discussion about curricular matters. Our role

as a federal court is limited to upholding constitutional

rights. So we express no opinion about the propriety of

the curriculum at issue, except to hold that it does not

bear any of the hallmarks of religious establishment. For

that reason, we will affirm the District Court’s judgment.

22a

Appendix A

PHIPPS, Circuit Judge, concurring in the judgment.

This Establishment Clause challenge comes at a

time when the “one-size-fits-all test” from Lemon v.

Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745

(1971), has been emphatically rejected,1 and there is no

longer any lurking constitutional mandate of secularism

in governmental affairs. 2 To fill the jurisprudential void

occasioned by Lemon’s demise, the Majority Opinion uses

a ‘hallmarks’ test: whether the challenged action bears any

characteristics historically associated with an established

church. That approach has the salutary feature of being

grounded in this nation’s history and tradition, but I

posit that history and tradition are more effective as

exegetical tools for construing the text and structure

of the Constitution than as freestanding constitutional

norms. In addition, the use of the hallmarks test by the

Majority Opinion leaves at least two critical questions

unanswered: (i) whether governmental action that offends

only one of the hallmarks is sufficient for an Establishment

Clause violation, or whether the hallmarks should be

1. Shurtleff v. City of Boston, 596 U.S. 243, 277, 142 S. Ct.

1583, 212 L. Ed. 2d 621 (2022) (Gorsuch, J., concurring in the

judgment); see also Kennedy v. Bremerton Sch. Dist., 597 U.S.

507, 534-36, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022).

2. See Shurtleff, 596 U.S. at 261 (Kavanaugh, J., concurring)

(“[A] government violates the Constitution when . . . it excludes

religious persons, organizations, or speech because of religion

from public programs, benefits, facilities, and the like.”); accord

Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 488-89, 140 S.

Ct. 2246, 207 L. Ed. 2d 679 (2020); Carson ex rel. O.C. v. Makin,

596 U.S. 767, 779, 789, 142 S. Ct. 1987, 213 L. Ed. 2d 286 (2022).

23a

Appendix A

considered in the aggregate; and (ii) if one or more of the

hallmarks of an established church are present, whether

that is dispositive of an Establishment Clause violation, or

whether the government can justify its offending practice

as comporting with history and tradition. 3

In my view, a hallmarks test applied to states

through incorporation 4 is not needed to conclude

3. If the hallmarks test becomes this Court’s “grand

unified theory” of the Establishment Clause, Am. Legion v. Am.

Humanist Ass’n, 588 U.S. 19, 60, 139 S. Ct. 2067, 204 L. Ed. 2d

452 (2019) (plurality opinion), then I submit that the hallmarks

should be considered in the aggregate, see Michael W. McConnell,

Establishment and Disestablishment at the Founding, Part I:

Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2111

(2003) (“No single law created the established church. Rather, it was

constituted by a web of legislation, common law, and longstanding

practice.” (emphasis added)), and that a unit of government may

use history and tradition to justify conduct that offends one or

more hallmarks, see Town of Greece v. Galloway, 572 U.S. 565,

577, 134 S. Ct. 1811, 188 L. Ed. 2d 835 (2014) (“[I]t is not necessary

to define the precise boundary of the Establishment Clause where

history shows that the specific practice is permitted.”).

4. There remain grounds for questioning the incorporation

of the Establishment Clause. See, e.g., Elk Grove Unified Sch. Dist.

v. Newdow, 542 U.S. 1, 49, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004)

(Thomas, J., concurring in the judgment) (“The text and history of

the Establishment Clause strongly suggest that it is a federalism

provision intended to prevent Congress from interfering with state

establishments. Thus, unlike the Free Exercise Clause, which does

protect an individual right, it makes little sense to incorporate the

Establishment Clause.”); Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203, 310, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963) (Stewart,

J., dissenting) (“I accept too the proposition that the Fourteenth

Amendment has somehow absorbed the Establishment Clause,

24a

Appendix A

that the materials about Islam assigned to seventhgrade students at Chatham Middle School do not

establish a religion. Instead, all that is needed is a

recognition that teaching on matters of religion or even

encouraging religious belief or practice in public school

does not constitute a “law respecting an establishment of

religion.” U.S. Const. amend. I. Indeed, one of the other

organic documents of the United States, the Northwest

Ordinance of 1787, encouraged the teaching of religion

in schools: “Religion, morality, and knowledge, being

necessary to good government and the happiness of

mankind, schools and the means of education shall forever

be encouraged.” An Ordinance for the Government of

the Territory of the United States North-west of the

River Ohio, Act of July 13, 1787, art. III. 5 Thus, with

although it is not without irony that a constitutional provision

evidently designed to leave the States free to go their own way

should now have become a restriction upon their autonomy.”).

5. Similarly, in his Commentaries on the Constitution,

Justice Story emphasized that governmental promotion of religion

was not, as a general matter, inconsistent with the Constitution.

See, e.g., 3 Joseph Story, Commentaries on the Constitution of

the United States § 1867 (1833) (“[E]very American colony, from

its foundation down to the revolution, with the exception of Rhode

Island, (if, indeed, that state be an exception,) did openly, by the

whole course of its laws and institutions, support and sustain, in

some form, the Christian religion; and almost invariably gave a

peculiar sanction to some of its fundamental doctrines. And this

has continued to be the case in some of the states down to the

present period, without the slightest suspicion, that it was against

the principles of public law, or republican liberty.” (footnote

omitted)); id. § 1868 (“Probably at the time of the adoption of the

25a

Appendix A

the lifting of the constitutional mandate of secularism,

teaching about religious matters in a public school does

not violate the Establishment Clause. For that reason, the

instructional materials about Islamic beliefs, practices,

and modes of worship do not offend that constitutional

provision,6 and I respectfully concur in the judgment.

constitution, and of the amendment to it, now under consideration,

the general, if not the universal, sentiment in America was, that

Christianity ought to receive encouragement from the state, so

far as was not incompatible with the private rights of conscience,

and the freedom of religious worship.”).

6. Libby Hi lsen rath a lleges only a v iolation of the

Establishment Clause; she does not claim, for instance, that she

had insufficient notice of the instructional materials such that the

school’s opt-out provision, see School District of the Chathams,

Policy 5250 Excusal from Class or Program (Nov. 5, 2007), did

not meaningfully protect her parental rights to educate her son

on matters of faith and morals. See generally N.J. Stat. Ann.

§ 18A:35-4.7 (“Any child whose parent or guardian presents

to the school principal a signed statement that any part of the

instructions in health, family life education or sex education is in

conflict with his conscience, or sincerely held moral or religious

beliefs shall be excused from that portion of the course where

such instruction is being given and no penalties as to credit or

graduation shall result therefrom.”); Pierce v. Soc’y of Sisters, 268

U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) (recognizing

“the liberty of parents and guardians to direct the upbringing and

education of children under their control” as “rights guaranteed

by the Constitution”); Meyer v. Nebraska, 262 U.S. 390, 401, 43 S.

Ct. 625, 67 L. Ed. 1042 (1923) (describing “the power of parents

to control the education of their own”); Wisconsin v. Yoder, 406

U.S. 205, 233-34, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972) (requiring

Wisconsin to “accommodat[e] the religious objections of the

Amish” to compulsory education in light of “the rights of parents

26a

Appendix A

to direct the religious upbringing of their children”); Troxel v.

Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)

(plurality opinion) (recognizing that “the Fourteenth Amendment

protects the fundamental right of parents to make decisions

concerning the care, custody, and control of their children”); C.N.

v. Ridgewood Bd. of Educ., 430 F.3d 159, 185 n.26 (3d Cir. 2005)

(“[W]e do not hold . . . that the right of parents under the MeyerPierce rubric ‘does not extend beyond the threshold of the school

door.’” (quoting Fields v. Palmdale Sch. Dist., 427 F.3d 1197,

1207 (9th Cir. 2005))); Gruenke v. Seip, 225 F.3d 290, 305 (3d Cir.

2000) (“It is not unforeseeable, therefore, that a school’s policies

might come into conflict with the fundamental right of parents

to raise and nurture their child. But when such collisions occur,

the primacy of the parents’ authority must be recognized and

should yield only where the school’s action is tied to a compelling

interest.” (emphasis added)). But cf. Mahmoud v. McKnight, 102

F.4th 191 (4th Cir. 2024), cert. granted sub nom., Mahmoud v.

Taylor, 145 S. Ct. 1123, 220 L. Ed. 2d 420 (2025) (mem.).

27a

Appendix B

APPENDIX B — SUPPLEMENTAL

OPINION ON

REMAND OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW JERSEY,

FILED OCTOBER 16, 2023

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civ. No. 18-00966 (KM) (MAH)

LIBBY HILSENRATH, ON BEHALF OF HER

MINOR CHILD, C.H.,

Plaintiff,

SCHOOL DISTRICT OF THE CHATHAMS, BOARD

OF EDUCATION OF THE SCHOOL DISTRICT OF

THE CHATHAMS, MICHAEL LASUSA, KAREN

CHASE, JILL GIHORSKI, STEVEN MAHER,

MEGAN KEOWN, AND CHRISTINE JAKOWSKI,

Defendants.

SUPPLEMENTAL OPINION ON REMAND

KEVIN MCNULTY, U.S.D.J.:

This case is an Establishment Clause challenge

brought by Libby Hilsenrath on behalf of her son, C.H.,1

to instruction about Islam in C.H.’s seventh-grade World

Cultures and Geography course in the Chatham public

schools. On November 12, 2020, this Court granted

Defendants’ motion for summary judgment and denied

1. The identity of C.H., the minor child on whose behalf Ms.

Hilsenrath sues, is properly anonymized.

28a

Appendix B

Hilsenrath’s cross-motion for summary judgment, holding

as follows:

(1) Hilsenrath has standing to pursue a claim for

nominal damages, but not for prospective injunctive or

declaratory relief;

(2) the School Board for the School District of

the District of the Chathams (the “Board”) is a proper

defendant, and Superintendent LaSusa’s involvement in

the curricular decisions is sufficient to trigger potential

liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978);

(3) the claims against the individual defendants and

the School District of the Chathams (the “District”) must

be dismissed; and

(4) the seventh-grade World Cultures and Geography

curriculum and materials did not violate the Establishment

Clause.

On July 20, 2022, following an appeal by Hilsenrath,

the Third Circuit vacated this Court’s judgment and

remanded the case “for further consideration in light of

the Supreme Court’s opinion in Kennedy v. Bremerton

Sch. Dist., 142 S. Ct. 2407, 213 L. Ed. 2d 755 (June 27,

2022).” (DE 87.) That case, decided after I rendered my

decision, bears on the proper test that should be applied

in analyzing Hilsenrath’s Establishment Clause claims.

Again before the Court on remand are Defendants’

motion for summary judgment (DE 62) and Hilsenrath’s

29a

Appendix B

cross-motion for summary judgment (DE 63). At the

Court’s invitation, each side filed a supplemental brief

on remand. (DE 99, 100 (as corrected).) What follows

amounts to an amendment of my prior decision, revised

in accordance with Kennedy v. Bremerton and the

parties’ supplemental briefing. It should be read, mutatis

mutandis, against the backdrop of the fuller discussion in

my earlier decision. For the following reasons, Defendants’

motion for summary judgment is again GRANTED, and

Hilsenrath’s motion for summary judgment is DENIED. 2

2. My previous Opinion’s prefatory note regarding the delicate

nature of the issues raised by this case bears repeating here:

This well-framed case presented sensitive issues

requiring factual inquiry and . . . [n]o one’s educational,

ideological, or religious priors were sufficient to decide

it. I understand well the strong feelings that accompany

such issues and claims. I do not dismiss the plaintiff’s

concerns, and I am by no means unsympathetic with

parents’ desire to control their children’s exposure to

religious indoctrination. I am also acutely aware that this

is public, not parochial, education. Religion, however, is

a fact about the world, and no study of geography and

cultures is complete without it. There is, to be sure, a

line to be drawn between teaching about religion and

teaching religion. On this record, I must conclude that

the school did not cross that line.

(500 F. Supp. 3d at 277-78, SJ Op. at 2.)

30a

Appendix B

BACKGROUND3

3. Certain citations to the record are abbreviated as follows:

DE = Docket entry number in this case

Compl. = Complaint (DE 1)

Def. SMF = Defendants’ Statement of Material Facts

(DE 62-2)

C.H. Dep. = C.H. Deposition Transcript, Exhibit F to

Defendants’ Motion for Summary Judgment (DE 62-10)

Jakowski Dep. = Christine Jakowski Deposition

Transcript, Exhibit Y to Defendants’ Motion for

Summary Judgment (DE 62-29)

LaSusa Dep. = Michael LaSusa Deposition Transcript,

Exhibit K to Defendants’ Motion for Summary Judgment

(62-15)

Weber Dep. = Jill Weber Deposition Transcript, Exhibit

I to Defendants’ Motion for Summary Judgment (DE

62-13)

Video 1 = Introduction to Islam Video, Exhibit 17 to

Plaintiff’s Motion for Summary Judgment, https://www.

youtube.com/watch?v=ZHujiWd49l4 (DE 63-18)

Video 2 = 5 Pillars of Islam Video, Exhibit 18 to

Plaintiff’s Motion for Summary Judgment, https://www.

youtube.com/watch?v=ikVGwzVg48c (DE 63-19)

Worksheet = Introduction to Islam Worksheet, Exhibit

¶¶ to Defendants’ Motion for Summary Judgment (DE

62-46)

SJ Op. = November 2 0, 2 02 0 Opinion g ranting

Defendants’ motion for summary judgment and denying

Plaintiff’s cross-motion for summary judgment (DE 82).

The published version of this Opinion can be found at

31a

Appendix B

A. Facts

The World Cultures and Geography Course

During the 2016-2017 school year, C.H. was a seventhgrade student at Chatham Middle School, in the School

District of the Chathams. He was enrolled in a mandatory

course called World Cultures and Geography, taught

by defendants Megan Keown and Christine Jakowski.

(Def. SMF ¶¶ 96-98, 125.)4 The aim of the course was

to “develop[] a broad understanding of the world and its

people” so that “students will become active and informed

global citizens.” (DE 62-36 at 1.) To that end, the course

devoted a unit of study to each of the world’s major

geographic regions. (Id.) As part of the study of each

region, students learned about the religions commonly

practiced in each. (See, e.g., id.; DE 62-39.)

One unit was devoted to the Middle East and North

Africa (“MENA”). As part of that unit, students learned

about Islam, the religion that is prevalent in that region

Hilsenrath on behalf of C.H. v. Sch. Dist. of Chathams,

500 F. Supp. 3d 272 (D.N.J. 2020).

Pl. Br. = Plaintiff’s Supplemental Brief in Support of

Summary Judgment after the Third Circuit’s Order to

Vacate and Remand (DE 99)

Def. Br. = Supplemental Brief in Further Support of

Defendants’ Motion for Summary Judgment on Remand

from the Third Circuit (DE 100)

4. Ms. Keown prepared the syllabus for the class and taught

until November 2016, when she went on maternity leave. Ms.

Jakowski replaced her and taught the unit at issue. (Def. SMF

¶¶ 96-98.)

32a

Appendix B

and is a central component of many of those countries’

governments, laws, and cultures. 5 (DE 62-41.) This

particular unit comprised nine lessons. Most covered

geography and current events, but two of the nine focused

on Islam. (Id.)

(a) Introduction to Islam Video

The first lesson was aimed at teaching students about

the general attributes of the Islamic faith. (Id. at 2.)

Ms. Jakowski presented a PowerPoint, a copy of which

was posted on Google Classroom, an online platform

for teachers to post course materials for their students.

(Jakowski Dep. at 29:8-18.) The last of the PowerPoint

slides asked students to write down words they associated

with Islam, to watch a linked video introducing students to

Islam (“Video 1”), and then to discuss what generalizations

they could make after watching the video and consider

whether those generalizations were valid. (DE 62-42

at 11.) However, Ms. Jakowski did not play Video 1 in

class and students were not required to watch it as

homework. (Jakowski Dep. at 30:21-31:1, 36:4-6, 45:1119.) Nonetheless, C.H., with his mother, did access the

presentation and Video 1 from Google Classroom and

watched it at home. (C.H. Dep. at 35:23-36:9.)6

5. To put it another way, these students are citizens of a

country which prohibits establishment of an official religion, but in

this unit they were studying countries which emphatically do not. It

is impossible to study the government and culture of, for example,

the Islamic Republic of Iran while avoiding exposure to the tenets

of Islam.

6. A study guide for the MENA unit advised students that the

test would be open note, that their notes should include “general

33a

Appendix B

Video 1 is a five-minute introduction to Islam. The

video scrolls through pictures of Middle Eastern and

North African peoples, Islamic art, and Muslim sites,

with singing in the background.7 Interspersed with these

images for the first half of the video are slides of text

asking and answering questions about Islam:

• “What is Islam? . . . Faith of divine guidance for

Humanity, based on peace, spirituality and the

oneness of God[.]” (Video 1 at 0:17.)

• “Who is Allah? Allah is the one God who created

the heavens and the earth, who has no equal and is

all powerful[.]” (Id. at 0:29.)

• “Who is Muhammed (S)? Muhammed (Peace be

upon him) is the last & final Messenger of God. God

gave him the Noble Quran[.]” (Id. at 1:01.)

• “What is the Noble Quran? Divine revelation sent

to Muhammed (S) last Prophet of Allah. A Perfect

guide for Humanity[.]” (Id. at 1:38.)

knowledge about [Islam] and 5 Pillars,” and that they should “[u]se

slides on Google Classroom to ensure that you have all important

information in your notes or on the handouts.” (DE 63-14 at 2.)

7. On the YouTube page, the description from the video-creator

states that the music playing in the background is “Qasida Burdah”

and provides two links for download, but neither link seems to be

currently active. Hilsenrath has provided what she attests is a

translation of the text of the song, which is religious in nature. (DE

63-17.) There is no testimony from C.H. that he clicked the links at

the time of viewing the video or understood what the song, which

was in Arabic, signified.

34a

Appendix B

• “What does history say about Islam? Muslims

created a tradition of unsurpassable splendor,

scientific thought and timeless art[.]” (Id. at 2:10.)

Around the two-minute mark, the video begins to

focus less on Islam as a religion per se, and more on the

achievements of Islamic civilization. (Id. at 2:39, 3:02-25.)

Also interspersed throughout the video are quotations

(with attributions) from Muslim prayers, the Quran, and

Muhammed. (Id. at 0:38, 1:14, 1:24, 1:48, 4:30, 4:19.) The

video closes with a text slide stating, “May God help us all

find the true faith, Islam. Ameen” (id. at 4:42), and another

slide, seemingly from the video-creator, thanking family

members and Allah (id. at 4:50).

In his deposition, C.H. testified that he did not

remember much about this video, and did not recall feeling

coerced. (C.H. Dep. at 24:24-25:1, 37:3-11.) That, of course,

is relevant but not dispositive.

(b) Worksheet

The second lesson further explored the tenets of

Islam. (DE 62-45 at 2.) Ms. Jakowski presented a second

PowerPoint to the class that provided an overview of

Islam’s major characteristics and its five pillars, “the

five obligations that every Muslim must satisfy in order

to live a good and responsible life according to Islam.”

(Id. at 11.) As students listened to that lesson, they were

given a worksheet that corresponded to the presentation.

The worksheet had blanks which students would fill in,

or incorrect statements which they would correct, based

35a

Appendix B

on information they had learned. (Jakowski Dep. at 40:110.) The PowerPoint and worksheet covered a range of

topics at a general level: for example, how often Muslims

pray, the practice of alms giving, and why Muslims fast.

(Worksheet at 3-5; DE 62-45 at 11-20.)

One slide and corresponding page of the worksheet

concerned the pillar called shahadah, or “Testimony of

Faith.” (DE 62-45 at 14.) The shahadah is described as

“[t]he basic statement of the Islamic faith,” and the text

of the shahadah was included in the PowerPoint. (Id. at

14.)8 The worksheet contained an incomplete version of the

shahadah, and students filled in the underlined blanks

8. Hilsenrath contends that the PowerPoint and worksheet also

contained a link to a webpage that teaches visitors how to convert

to Islam, and claims that students viewed it. (See 500 F. Supp. 3d at

280 n.5, SJ Op. at 5 n.5 (referring to Hilsenrath’s original brief in

support of her motion).) There is indeed a link in both documents to

an informational webpage from the BBC describing the shahadah.

(DE 68-9 at 31, 42.) The webpage states, among other things, that

“anyone who cannot recite [the shahadah] wholeheartedly is not

a Muslim” and “[r]eciting this statement three times in front of

witnesses is all that anyone need do to become a Muslim.” Shahadah:

the statement of faith, BBC, http://www.bbc.co.uk/religion/religions/

islam/practices/shahadah.shtml (last updated Aug. 23, 2009). Other

than Hilsenrath’s own testimony (DE 63-2 at 129-30), which does

not seem to reflect firsthand observations, there is no indication that

Ms. Jakowski instructed students to follow links in the PowerPoints

at home or that C.H. himself followed any such link. (E.g., Jakowski

Dep. at 45:11-19.) As to the worksheet, Ms. Jakowski testified that

it was provided in class, presumably in hard copy (id. at 40:1-3), and

C.H. completed the worksheet by hand, so there is no indication that

he would or could have clicked on such a link (C.H. Dep. at 44:2345:5; see also DE 62-47).

36a

Appendix B

of the statement: “There is no god but and is his

messenger.” (Worksheet at 4, the correct answers being

“Allah” and “Muhammed.”) C.H. completed part of the

worksheet, including the shahadah page. (C.H. Dep. at

36:1-9; DE 62-47.)9

Like the first presentation, the five-pillars presentation

contained a link to a video (“Video 2”) (DE 62-45 at 10), but

Video 2 was not played in class or assigned as homework.

(Jakowski Dep. at 36:4-6). C.H., evidently a diligent

student, nevertheless watched it at home with his mother.

(C.H. Dep. at 35:23-36:9). Video 2, five minutes long,

opens with text stating that “the following is an Islamic

educational presentation for primary and secondary

schools.” (Video 2 at 0:02 (capitalization altered).) Video

2 features two cartoon-animation boys, Alex and Yusuf,

discussing Islam. Alex asks Yusuf, who is Muslim,

questions about his religion. For example, Alex asks Yusuf

when he prays and what Muslims believe. (Id. at 0:50-2:00.)

Yusuf states that “Allah is the creator of everything.”

(Id. at 1:30-34.) Yusuf then describes the five pillars to

Alex and recites the shahadah. (Id. at 2:00-2:30.) Video 2

concludes with text instructing that the viewer can order

more information from the video creator, an organization

called Discover Islam, and can organize a mosque tour.

9. Ms. Jakowski described the worksheet as an in-class

assignment. C.H. could not recall whether he completed it at home or

in class. (Compare Jakowski Dep. at 40:1-10, with C.H. Dep. at 45:910.) At any rate, it is undisputed that C.H. reviewed the PowerPoint

and completed the worksheet as part of the course. (See id.)

37a

Appendix B

(Id. at 5:20.) It is clear that Discover Islam is a United

Kingdom organization because its website ends in “co.

uk,” the text of the video uses British spelling, and Yusuf

and Alex speak with British accents.

Hilsenrath’s Complaints and Defendants’

Response

After watching the videos with C.H. and reviewing

the worksheet, Hilsenrath felt that the curriculum

favored Islam at the expense of Christianity and Judaism.

She sent emails expressing her concerns to (1) Steven

Maher, Social Studies Content Supervisor for the School

District; (2) Superintendent of Curriculum Karen Chase;

(3) Superintendent Michael LaSusa; and (4) the Board of

Education of the School District.10 (DE 62-48; DE 62-50.)

10. For context, I note the roles and responsibilities of each of

these parties:

• Super visor Maher develops the social studies

cur r iculum and super vises the social studies

teachers. (Def. SMF ¶¶ 85-88.)

• Assistant Superintendent Chase is responsible for

oversight of the curriculum and Supervisor Maher.

(Id. ¶ 78.)

• Superintendent LaSusa, under New Jersey law, is the

“chief executive” of the District and has the power

of “general supervision over all aspects, including

. . . instructional programs, of the schools of the

district.” N.J. Stat. Ann. § 18A:17-20(b); see also Def.

SMF ¶ 72. He oversees District policy regarding

curriculum and course materials, and Assistant

Superintendent Chase reports to him. (Weber Dep.

38a

Appendix B

After sending those emails, Hilsenrath attended a

Board meeting in February 2017 and voiced her concerns.

(Def. SMF ¶ 186.) In response, the Board’s Curriculum

Committee convened to discuss those concerns. (Id.

¶ 191.) When such complaints are raised, the Committee

reviews and researches them and then publicly presents

findings and any recommendations to the Board. (Weber

Dep. at 19:7-25.) The Board usually does not take formal

action regarding Committee recommendations but leaves

that to the superintendent. (Id. at 20:1-21:8.) Here, the

Committee meeting included Superintendent LaSusa,

Assistant Superintendent Chase, Supervisor Maher, social

at 20:1-21:1, 35:10-15, 54:13-16; La Susa Dep. at

9:22-25.) He also has the responsibility to “ensure

that teachers follow” District policy that religion is

treated neutrally. (DE 63-15.) Although the Board

has the power to hire and fire the superintendent,

the Board does not have the power to overrule him

on decisions regarding instructional materials and

curriculum. (Weber Dep. at 20:1-21:8.) Ultimately,

it is his decision to remove materials from courses,

a decision that does not require approval from the

Board, and his determination is deemed to represent

that of the Board and District. (Id. at 51:7-14, 57:7-11;

LaSusa Dep. at 101:2-102:2.)

• The Board, under New Jersey law, is the “body

corporate” that supervises the District. N.J. Stat.

Ann. §§ 18A:10-1, 18A:11-1(c)–(d). It consists of nine

members and requires five votes to take any action.

(Weber Dep. at 34:9-10; see also N.J. Stat. Ann.

§ 18A:10-6.) Nonetheless, the superintendent retains

final authority on most day-to-day matters involving

the schools, including the curriculum, an area which

the Board avoids. (Weber Dep. at 21:4-8.)

39a

Appendix B

studies teacher Stephanie Lukasiewicz, Board Member

Michelle Clark, and Board President Jill Weber. (Def.

SMF ¶ 195; LaSusa Dep. at 93:25-94:1.)

After reviewing the curriculum and materials,

Superintendent LaSusa and the Committee determined

that no changes were necessary. They presented their

findings at the next Board meeting, emphasizing that the

curriculum as a whole aligned with the District policy of

religious neutrality. (DE 62-53, at 2-4; DE 62-54, link to

video, passim; DE 63-5 at 24:1-14.) Prior to the meeting,

however, Hilsenrath (and others) appeared on a national

television show to voice her concerns. Seemingly in

reaction to what they regarded as misstatements on the

show and the ensuing disruption, Superintendent LaSusa

and Supervisor Maher had the links to the videos removed

from the PowerPoints. (E.g., LaSusa Dep. at 87:6-18; DE

63-23 at 3-4 (referring to reports of violent and vulgar

communications).)

B. Procedural History

Months later, when C.H. was in eighth grade and no

longer in the World Cultures and Geography course, Ms.

Hilsenrath sued the District, the Board, Superintendent

LaSusa, Assistant Superintendent Chase, Principal Jill

Gihorski, Supervisor Maher, and the two teachers, Ms.

Keown and Ms. Jakowski. (Compl. ¶¶ 12-39.) Her claims

against the individual defendants name them in their

official capacities only. (Id. at 2.) She alleges a single

claim under 42 U.S.C. § 1983: that the curriculum, with

particular focus on the videos and worksheet, violates

40a

Appendix B

the Establishment Clause of the First Amendment to the

United States Constitution. (Id. ¶¶ 99-116.) She seeks (1)

an injunction prohibiting Defendants “from funding and

implementing religious instruction that endorses Islam

or that favors Islam,” (2) a declaration that Defendants

violated the rights of herself and C.H. under the

Establishment Clause, (3) a declaration that Defendants’

“training, supervision, policies, practices, customs, and

procedures that promote Islam violate the Establishment

Clause,” (4) nominal damages, and (5) attorney’s fees. (Id.,

Prayer for Relief.)

Defendants moved to dismiss the complaint. I

denied that motion, holding that the Complaint on its

face sufficiently alleged an Establishment Clause claim.

Hilsenrath on behalf of C.H. v. Sch. Dist. of Chathams,

Civ. No. 18-966, 2018 U.S. Dist. LEXIS 100100, 2018

WL 2980392, at *3-4 (D.N.J. June 13, 2018). Following

discovery, the parties cross-moved for summary judgment.

(DE 62, 63.) On November 12, 2020, I granted Defendants’

motion for summary judgment, denied Hilsenrath’s motion

for summary judgment, and dismissed Hilsenrath’s

Complaint. See SJ Op., 500 F. Supp. 3d 272 (D.N.J. 2020).

Hilsenrath appealed. On July 20, 2022, the Third Circuit

vacated the judgment without reaching the merits as such;

rather it remanded the case to this Court “for further

consideration in light of the Supreme Court’s opinion in

Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 213 L.

Ed. 2d 755 (June 27, 2022),” which had been decided in the

interim, while the appeal was pending. See Hilsenrath on

behalf of C.H. v. Sch. Dist. of Chathams, No. 20-3474, 2022

U.S. App. LEXIS 20588, 2022 WL 2913754, at *1 (3d Cir.

July 20, 2022). I then ordered supplemental briefing on

41a

Appendix B

the issues raised by the Third Circuit’s remand (DE 90),

and the parties submitted briefs accordingly (DE 99, 100).

Hav ing considered the par ties’ supplemental

submissions, I am now prepared to rule again on the

parties’ motions as directed by the Third Circuit.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) provides that

“[t]he court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of

law.” I incorporate from my prior opinion the remaining

discussion of the legal standards governing motions and

cross-motions for summary judgment. SJ Op. 10-11, 500

F. Supp. 3d at 282-83.

III. DISCUSSION

The sole issue before the Court concerns Ms.

Hilsenrath’s Establishment Clause claim for nominal

damages. 11 In accordance with the Third Circuit’s

directive remanding this case “for further consideration

11. The first three of my four original holdings are not implicated

by Kennedy and therefore remain intact. See pp. 1-2, supra.

This case having been narrowed to a pure Establishment Clause

claim, I also do not analyze any other constitutional claim, e.g.,

violation of Fourteenth Amendment guarantees of substantive due

process. See generally Troxel v. Granville, 530 U.S. 57, 120 S. Ct.

2054, 147 L. Ed. 2d 49 (2000); C.N. v. Ridgewood Bd. of Educ., 430

F.3d 159, 185 (3d Cir. 2005); Gruenke v. Seip, 225 F.3d 290, 303-04

(3d Cir. 2000).

42a

Appendix B

in light of the Supreme Court’s opinion in Kennedy v.

Bremerton Sch. Dist., 142 S. Ct. 2407, 213 L. Ed. 2d 755

(June 27, 2022)” (DE 87), I now revisit the parties’ crossmotions for summary judgment. I begin my discussion

with a brief summary of the Kennedy case and its bearing

on the Establishment Clause challenge here. (Section

III.A.) I then proceed to reanalyze the parties’ motions

consistent with that decision. (Section III.B.)

The Kennedy Opinion

In Kennedy, the Supreme Court considered an appeal

by a part time football coach, Joseph Kennedy, who

claimed that he lost his job with the Bremerton School

District for “kneel[ing] at midfield after games to offer

a quiet prayer of thanks,” or for leading “pregame or

postgame prayers in the locker room.” Kennedy, 142 S. Ct.

at 2415-16. Kennedy sued in federal court, alleging that

the school district had violated the First Amendment’s

Free Speech and Free Exercise Clauses. Id. at 2416. The

Supreme Court found that Kennedy had discharged his

initial burden to go forward with his free speech and free

exercise claims. Id. at 2422-23. The burden thus shifted

to the school district to demonstrate that its actions were

justified. Id. at 2426.12 Relevant here are the majority’s

holdings with respect to the justification proffered by the

school district that “its suspension of Mr. Kennedy was

12. I do not dwell on distinctions between the particular burdens

associated with proving Free Exercise and Free Speech claims. The

Court ruled that “[w]hether one views [Kennedy’s] case through

the lens of the Free Exercise or Free Speech Clause,” Kennedy

successfully discharged that initial burden, and that therefore “the

burden shift[ed] to the District.” Kennedy, 142 S. Ct. at 2426.

43a

Appendix B

essential to avoid a violation of the Establishment Clause.”

Id. The majority in Kennedy rejected this justification

and, in so doing, rejected the so-called “Lemon test.”13 In

fact, the majority suggested that the Supreme Court had

already impliedly abandoned Lemon and “instructed that

the Establishment Clause must [instead] be interpreted

by ‘reference to historical practices and understandings.’”

Id. at 2428 (citing Town of Greece, N.Y. v. Galloway, 572

U.S. 565, 576, 134 S. Ct. 1811, 188 L. Ed. 2d 835 (2014);

Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087,

204 L. Ed. 2d 452 (2019) (plurality opinion)). The majority

continued:

“‘[T]he line’” that courts and governments

“must draw between the permissible and the

impermissible” has to “‘accor[d] with history

and faithfully reflec[t] the understanding of

the Founding Fathers.’” Town of Greece, 572

U.S. at 577, 134 S.Ct. 1811 (quoting School

Dist. of Abington Township v. Schempp, 374

U.S. 203, 294, 83 S.Ct. 1560, 10 L.Ed.2d 844

13. The reference is to Lemon v. Kurtzman, 403 U.S. 602, 91

S. Ct. 2105, 29 L. Ed. 2d 745 (1971). Lemon imposed a three-part

inquiry for analyzing Establishment Clause claims, asking (1)

whether the government practice had a secular purpose; (2) whether

its “principal or primary effect” advanced or inhibited religion; and

(3) whether it created “an excessive government entanglement with

religion.” Id. at 612-13.

In my prior decision, I applied the now-abandoned Lemon test

to analyze Hilsenrath’s Establishment Clause claim. In doing so, I

cited then-current Third Circuit law noting that Lemon had been

eroded in many respects, but maintained its vitality in the area of

public education. SJ Op. at 21, 500 F. Supp. 3d at 289-90.

44a

Appendix B

(1963) (Brennan, J., concurring)). An analysis

focused on original meaning and history, this

Court has stressed, has long represented the

rule rather than some “‘exception’” within the

“Court’s Establishment Clause jurisprudence.”

572 U.S. at 575.

Id. at 2428 (additional citations omitted).

While clearly rejecting the Lemon test, the majority in

Kennedy was less clear about what would replace it—i.e.,

what would constitute a proper “historical analysis”

of a party’s Establishment Clause claim in all cases.

Nevertheless, the majority did lay down certain markers

which I take as a guide for this Court’s analysis of these

motions.

The most prominent of those markers is the majority’s

emphasis on the presence, or not, of coercion: “[T]his Court

has long held that government may not, consistent with a

historically sensitive understanding of the Establishment

Clause, ‘make a religious observance compulsory.’” Id. at

2429 (quoting Zorach v. Clauson, 343 U.S. 306, 314, 72 S.

Ct. 679, 96 L. Ed. 954 (1952)). The majority emphasized

that “coercion along these lines was among the foremost

hallmarks of religious establishments the framers sought

to prohibit when they adopted the First Amendment.” Id.

Further guidance as to what other facts might

constitute “hallmarks” of an Establishment Clause

violation may be found at the Kennedy majority decision

footnote 5. That footnote has been described, plausibly

45a

Appendix B

in my view, as a “cipher for interpreting how the Court

interprets the Establishment Clause by reference to history

and tradition.” Daniel L. Chen, Kennedy v. Bremerton

School District: The Final Demise of Lemon and the

Future of the Establishment Clause, 21 Harvard J. L. &

Pub. Policy Per Curiam, 9 (Summer 2022). Most helpful is

that footnote’s reference to a portion of Justice Gorsuch’s

concurrence in Shurtleff v. City of Boston, Massachusetts,

in which he reviews “our constitutional history [for] some

helpful hallmarks that localities and lower courts can rely

on.” 596 U.S. 243, 285, 142 S. Ct. 1583, 212 L. Ed. 2d 621

(2022) (Gorsuch, J., concurring). There, Justice Gorsuch

wrote that “[b]eyond a formal declaration that a religious

denomination was in fact the established church, . . .

founding-era religious establishments often bore certain

other telling traits,” including (1) “the government exerted

control over the doctrine and personnel of the established

church;” (2) “the government mandated attendance in

the established church and punished people for failing

to participate;” (3) “the government punished dissenting

churches and individuals for their religious exercise;”

(4) “the government restricted political participation

by dissenters;” (5) “the government provided financial

support for the established church, often in a way that

preferred the established denomination over other

churches;” and (6) “the government used the established

church to carry out certain civil functions, often by

giving the established church a monopoly over a specific

function.” Id.14 At least four of these contain a strong

14. In his concurring opinion in Shurtleff, Justice Gorsuch

cited to and adopted the position of Professor Michael McConnell

when he enumerated these six hallmarks of founding-era religious

46a

Appendix B

element of compulsion, corroborating the primacy of

coercion in the Court’s analysis.

To evaluate an Establishment Clause claim in a

manner that is “consistent with a historically sensitive

understanding of the Establishment Clause,” then, I must

determine whether Hilsenrath’s case bears the “hallmarks

of religious establishments the framers sought to prohibit

when they adopted the First Amendment.” Kennedy, 142

S. Ct. at 2429. I now proceed to apply those principles

to the summary judgment motions currently before the

Court.

establishments. See Shurtleff v. City of Bos., Massachusetts, 596 U.S.

243, 285-86, 142 S. Ct. 1583, 212 L. Ed. 2d 621 (2022) (citing Michael

W. McConnell, Establishment and Disestablishment at the Founding,

Part I: Establishment of Religion, 44 William & Mary L. Rev. 2105

(2003)). Underscoring the Court’s adoption of these hallmarks as

the guiding principles for Establishment Clause jurisprudence,

footnote 5 of the majority opinion in Kennedy also cites directly to

Professor McConnell’s scholarship. See Kennedy, 142 S. Ct. at 2429

n.5 (citing same).

Footnote 5 of the majority opinion in Kennedy includes two

additional citations, both of which refer to sources that elaborate

further on the element of coercion. One citation is to a section of

Justice Scalia’s dissent in Lee v. Weisman in which he explains that

one of the “hallmark[s] of historical establishments of religion was

coercion of religious orthodoxy and of financial support by force of law

and threat of penalty,” 505 U.S. 577, 640-642, 112 S. Ct. 2649, 120 L.

Ed. 2d 467 (1992) (Scalia, J., dissenting) (emphasis in original), and

the other citation refers to a record of statement by James Madison

in the Annals of Congress explaining that the First Amendment is

aimed to prevent one or multiple sects from “establish[ing] a religion

to which they would compel others to conform,” 1 Annals of Cong.

730-731 (1789).

47a

Appendix B

B. The Summary Judgment Motions on Remand

As directed by the Third Circuit, I reanalyze

Hilsenrath’s Establishment Clause claim for nominal

damages, not under the Lemon test, but under the

approach announced recently in Kennedy.

I begin with some general observations. Lurking

behind the Supreme Court’s analysis is the wellrecognized tradeoff between the First Amendment

Establishment Clause and Free Exercise Clause in

particular cases. See generally Cutter v. Wilkinson, 544

U.S. 709, 719, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005)

(these two Clauses, while “express[ing] complementary

values,” will “often exert conflicting pressures”); Locke v.

Davey, 540 U.S. 712, 718, 124 S. Ct. 1307, 158 L. Ed. 2d 1

(2004) (describing the Clauses as “frequently in tension”).

Any attempt to expand the scope of religious free exercise

in the context of public institutions tends to be met by

a corresponding objection that the state is threatening

to establish a particular religion. Thus, in Kennedy, the

coach argued that a school district’s restrictions on his

prayers would interfere with his religious observances

under the Free Exercise Clause; the school district replied

that its hands were tied by the Establishment Clause,

under which it could not permissibly endorse the coach’s

religious observances or force others to participate in

them. The Kennedy Court, however, found this to be a

“false choice,” because at least on the facts of that case,

these two constitutional commands were not “at odds.”

142 S. Ct. at 2432. Because students and other observers

were (to varying degrees) exposed to the coach’s prayers,

but not coerced to participate in them, there arose “no

conflict between the constitutional commands” of the

48a

Appendix B

Establishment Clause and the Free Exercise Clause.

Id. In short, the facts “did not come close to crossing

any line one might imagine separating protected private

expression from impermissible government coercion.”

Id. at 2429.

In a very general sense, Kennedy may be seen as

restricting the scope of the Establishment Clause and, in

the name of Free Exercise, granting a bit more leeway

for the presence of religion in the setting of public

education. Under the prior Lemon test, a practice might

have been found impermissible if it lacked a “secular

purpose,” “advance[d]” religion, or resulted in excessive

“entanglement” of government and religion. Kennedy

emphasizes official coercion and tradition, a test which

will often set a higher threshold for an Establishment

Clause challenge.15

Kennedy is not, however, legally or factually on point

with our case. To begin with, there is no countervailing

Free Exercise issue in our case that resembles the

one in Kennedy; no coaches, faculty members, or even

students are claiming that the authorities punished them

for practicing their religion on school property. So in

remanding, the Third Circuit surely was not saying that

Kennedy is directly on point, but rather was responding to

this Court’s application of the Lemon test, which Kennedy

has now declared to have been superseded.

Ms. Hilsenrath’s is a pure Establishment Clause

claim. Therefore, I eschew the now-superseded Lemon

15. That is not to say that the considerations underlying the

Lemon test have become irrelevant; far from it. Kennedy makes it

clear, however, that the legal test has changed.

49a

Appendix B

test and, gleaning what guidance I can find from Kennedy,

I will analyze whether the challenged materials from

C.H.’s World Cultures and Geography course bear any of

the historical “hallmarks of religious establishments.” Id.

at 2407 n.5. As before, I analyze the challenged materials

as a whole and in the context of the curriculum. See, e.g.,

Cnty. of Allegheny v. ACLU Greater Pittsburgh Chapter,

492 U.S. 573, 597, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989),

abrogated on other grounds by Town of Greece, 572 U.S.

565. Nothing about Kennedy undermines the principle

that context remains critical, or vitiates the warning

that to “[f]ocus exclusively on the religious component

of any activity would inevitably lead to [the activity’s]

invalidation.” Lynch v. Donnelly, 465 U.S. 668, 679-80,

104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984) (emphasis added);

see also Wood v. Arnold, 915 F.3d 308, 314 (4th Cir. 2019)

(“[C]ourts . . . consistently have examined the entire

context surrounding the challenged practice, rather

than only reviewing the contested portion.” (collecting

cases from the Fourth, Fifth, Sixth, Seventh, Ninth, and

Eleventh Circuits)), cert. denied, 140 S. Ct. 399, 205 L.

Ed. 2d 214 (2019).

I first consider whether the challenged World Cultures

and Geography curriculum and materials were coercive.

The Kennedy Court recognized coercion to be “among

the foremost hallmarks of religious establishments the

framers sought to prohibit when they adopted the First

Amendment.” 142 S. Ct. at 2429. After reviewing the

parties’ submissions, I find that the record contains no

evidence of significant coercion.16

16. The analysis here is hampered somewhat by the Kennedy

Court’s having found it unnecessary to define “what exactly qualifies

50a

Appendix B

To begin with, C.H. expressly testified that he never

felt coerced. In fact, C.H. (correctly, in the District’s view)

perceived the purpose and effect of the lessons as being to

educate students about world religions and the importance

of avoiding group generalizations. (C.H. Dep. at 24:18-25:1,

40:8-24, 41:22-25.) Nor did any other student testify that

he or she experienced the course materials as coercive. In

short, direct, subjective evidence of coercion is lacking.

Even through an objective lens, however, the materials

cannot be viewed as tending to compel a student “by force

of law and threat of penalty,” to adhere to a particular

religious belief or participate in a particular religious

practice. Lee v. Weisman, 505 U.S. at 640-42 (Scalia,

J., dissenting). For the reasons expressed in my prior

Opinion, I adhere to my conclusion that “Video 1 was

used to introduce students to the tenets of Islam . . .

as impermissible coercion in light of the original meaning of the

Establishment Clause.” Kennedy, 142 S. Ct. at 2429. Precision

may not be required, however; here, as in Kennedy, the challenged

curriculum and materials, however repugnant to any individual’s

sectarian religious beliefs, “did not come close to crossing any

line one might imagine separating [secular public education] from

impermissible government coercion.” Id. Unless and until the Third

Circuit holds to the contrary, I continue to be guided by its mandate,

which I take to be consistent with Kennedy, that the reviewing court

“look[] at whether the government is coerc[ing] anyone to support

or participate in religion or its exercise.” Borden v. Sch. Dist. of

Twp. of E. Brunswick, 523 F.3d 153, 175 n.18. (3d Cir. 2008) (citation

omitted); see also C.N. v. Ridgewood Bd. of Educ., 430 F.3d at 187.

While the students here were exposed to religious materials, there is

no testimony from any individual that he or she experienced pressure

to support or participate in the practice of any religion.

51a

Appendix B

[and] Video 2 likewise explored Islam through a neutral

question-and-answer format that could not be regarded

as proselytizing.” SJ. Op. at 23, 500 F. Supp. 3d at 291.

And while “the worksheet contained fill-in-the-blanks

questions, as is typical at the middle-school level[,] . . .

[t]he format fell well short of compelled recitation of a

prayer,” as the worksheet was “clearly designed to assess

the students’ understanding of the lesson on Islam,” not

to inveigle them into praying. Id. (citation and quotation

omitted). Now of course there is a baseline level of coercion

in all public education, irrespective of the subject matter.17

The coercion relevant here, however, would be coerced

participation in or adherence to a religious belief or

practice. The educational units at issue, while exposing

students to the tenets of religious faiths in various regions

of the world, did not require or coerce students “to support

or participate in” the religious faith covered by that unit.

Borden, 523 F.3d at 175 n.18. (3d Cir. 2008) (emphasis

added). Reasonable students, teachers, and parents would

understand that the school’s mission here was pedagogical,

even if these course units exposed students to world

religions whose adherents engage in proselytization. My

prior observation on that point, although phrased in terms

of the Lemon test, remains valid. See SJ Op. at 23, 500 F.

17. For example, students are required to attend school from

the ages of 6 to 16, https://nj.gov/education/safety/sandp/attendance

(citing N.J. Stat. Ann. §§ 18A:38-28 through 31) (last visited Sept. 25,

2023), and their completion of assignments is enforced by the grading

system. I note in passing that the Board apparently had a policy

permitting students to be excused from any part of instruction which

the student or parent finds morally, conscientiously, or religiously

offensive. (Def. SMF ¶ 38.)

52a

Appendix B

Supp. 3d at 291 (“Of course, the statements of a religion’s

adherents have a religious purpose, in the mouths of

those adherents. But for secular educators to teach and

study about such statements is not to espouse them, or to

proselytize.”).18

The all-important context here is that this unit was

part of a comprehensive curriculum on world cultures,

which necessarily included units about the predominant

religions in the particular area of the world being studied.

Religion was not taught as revealed truth, but rather as

an important fact about the world. Kennedy itself only

reinforces the view, expressed at more length in my

prior opinion, that exposure to a variety of viewpoints,

including religious ones, is a proper goal. That goal is not

18. The following observations from my prior Opinion, although

presented in the context of the Lemon “endorsement” test, remain

valid to my point here that the curriculum was educational, not

coercive:

Although the video-creator can be perceived as believing

those tenets, neither the lesson, Ms. Jakowski, nor even

the video-creator invites or encourages the students

to adopt those views. This is par for the course; to

take the Ninth Circuit’s cogent example, “Luther’s

‘Ninety-Nine Theses’ are hardly balanced or objective,

yet their pronounced and even vehement bias does not

prevent their study in a history class’s exploration of

the Protestant Reformation, nor is Protestantism itself

‘advanced’ thereby.” [Brown v. Woodland Joint Unified

Sch. Dist., 27 F.3d 1373, 1380 (9th Cir. 1994)]. When,

as here, religious beliefs are presented to educate, not

convert, students, there is no endorsement of religion.

SJ. Op. at 25-26, 500 F. Supp. 3d at 292.

53a

Appendix B

undermined, and indeed may be enhanced, by non-coercive

exposure to opposing beliefs. See Kennedy, 142 S. Ct. at

2431 (any rule suppressing coach’s religious expression

“would undermine a long constitutional tradition under

which learning how to tolerate diverse expressive

activities has always been ‘part of learning how to live in

a pluralistic society.’”).19

In her brief, Hilsenrath does not meaningfully

address the Third Circuit’s mandate on remand, but for

the most part hews to her prior general argument that it is

a violation of the Establishment Clause for a public school

“to proselytize or to favor any one religion over others.”

(Pl. Br. at 7.) Whatever its legal merits, that argument

fails on the facts, and has only grown weaker in light of

Kennedy’s newfound emphasis on coercion. Kennedy, in

my view, does not undermine the case law cited in my prior

Opinion, at least insofar as it applies to this fact pattern.

See SJ Op. at 21-29, 500 F. Supp. 3d at 289-95.

The findings of undisputed fact in my prior Opinion

dispel any notion that the World Cultures and Geography

course promoted Islam at the expense of other religions.

The evidence, I found, demonstrates that “the curriculum

treats Islam equally with other religions. It is not a

standalone course of study, but is part of a larger survey of

world regions and religions.” SJ Op. at 24, 500 F. Supp. 3d

19. The prior Opinion’s discussion of the curriculum’s secular

purpose, primary effect, and entanglement, although keyed to the

Lemon test, is highly pertinent and more comprehensive than the

discussion here. SJ Op. at 21-29, 500 F. Supp. 3d at 290-95. It should

be read in conjunction with this Opinion.

54a

Appendix B

at 291. Thus “the World Cultures course includes similar

units on, for example, Hinduism and Buddhism, in which

students watch videos on those religions to understand

their tenets and practices.” Id. (citing DE 62-39 at 4,

8-11; DE 68-8). I also rejected Hilsenrath’s argument

that “because the videos on Hinduism and Buddhism

are from the perspective of a more neutral narrator, the

World Cultures course does not treat all religions equally

and proselytizes when it comes to Islam.” Id. at 25 n.14.

The reader is referred to the Court’s discussion of these

arguments in the prior summary judgment Opinion.

By focusing on these prior arguments, Hilsenrath

fails to grapple with the task placed before the Court

by the mandate of the Third Circuit, i.e., to set aside

the old Lemon test and revisit the case in light of the

largely coercion-based standard adopted by the majority

in Kennedy.

The World Cultures and Geography curriculum and

materials do not present any of the “hallmarks” associated

with establishment of religion to which Kennedy alluded.

There is no evidence that by assigning middle school

students activities and homework regarding various

religions and cultures, the Board “exerted control over

the doctrine and personnel of [an] established church,”

“mandated attendance in [an] established church and

punished people for failing to participate,” “punished

dissenting churches and individuals for their religious

exercise,” “restricted political participation by dissenters,”

“provided financial support for [an] established church,”

or “used the established church to carry out . . . civil

55a

Appendix B

functions.” Shurtleff, 596 U.S. at 286 (Gorsuch, J.,

concurring). These, the sole guides that Kennedy has

furnished the lower courts for the assessment of “coercion”

for purposes of an Establishment Clause challenge in the

context of public education, do not fit the facts of our case.

***

In sum, the curriculum and materials here were

not coercive and do not otherwise bear or resemble the

“hallmarks of religious establishments the framers sought

to prohibit when they adopted the First Amendment.”

Accordingly, the Board did not violate the Establishment

Clause. I will enter summary judgment in the Board’s

favor on Hilsenrath’s remaining nominal-damages claim.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motion

for summary judgment, reconsidered on remand with

the benefit of additional briefing, is GRANTED, and

Hilsenrath’s motion for summary judgment is DENIED.

An appropriate order follows.

Dated: October 16, 2023

/s/ Kevin McNulty

Hon. Kevin McNulty

United States District Judge

56a

Appendix

C UNITED STATES

APPENDIX C — ORDER

OF THE

DISTRICT COURT FOR THE DISTRICT OF

NEW JERSEY, FILED OCTOBER 16, 2023

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civ. No. 18-00966 (KM) (MAH)

LIBBY HILSENRATH, ON BEHALF OF HER

MINOR CHILD, C.H.,

Plaintiff,

SCHOOL DISTRICT OF THE CHATHAMS, BOARD

OF EDUCATION OF THE SCHOOL DISTRICT OF

THE CHATHAMS, MICHAEL LASUSA, KAREN

CHASE, JILL GIHORSKI, STEVEN MAHER,

MEGAN KEOWN, AND CHRISTINE JAKOWSKI,

Defendants.

ORDER

THIS MATTER having come before the Court via

remand from the Court of Appeals for reconsideration of

the motion for summary judgment filed by Defendants

(DE 62), and the cross-motion for summary judgment filed

by Plaintiff (DE 63); and the Court having considered the

submissions and supplemental submissions on remand

(DE 62, 63, 68-71, 99, 100) without oral argument pursuant

to Fed. R. Civ. P. 78(b); for the reasons stated in the

Court’s original Opinion (DE 82), as revised and extended

57a

Appendix C

in the accompanying Supplemental Opinion on Remand;

and good cause appearing therefor;

IT IS this 16th day of October, 2023,

ORDERED that Defendants’ motion for summary

judgment (DE 62) is GRANTED; and

IT IS FURTHER ORDERED that Plaintiff’s motion

for summary judgment (DE 63) is DENIED.

The clerk is directed to close the file.

/s/ Kevin McNulty

Hon. Kevin McNulty

United States District Judge

58a

AppendixOF

D REHEARING OF

APPENDIX D — DENIAL

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT, FILED JUNE 3, 2025

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 23-3030

LIBBY HILSENRATH, ON BEHALF OF HER

MINOR CHILD, C.H.,

Appellant ,

SCHOOL DISTRICT OF THE CHATHAMS, et al.

(D.N.J. No. 2:18-cv-00966)

SUR PETITION FOR REHEARING

Present: CHAGARES, Chief Judge, HARDIMAN,

SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER,

MATEY, PHIPPS, FREEMAN, MONTGOMERYREEVES, and CHUNG, Circuit Judges.

The petition for rehearing filed by the Appellant in

the above-entitled case having been submitted to the

judges who participated in the decision of this Court and

to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in the

decision having asked for rehearing, and a majority of the

judges of the circuit in regular service not having voted

for rehearing, the petition for rehearing by the panel and

the Court en banc, is denied.

59a

Appendix D

BY THE COURT,

s/ Thomas M. Hardiman

Circuit Judge

Dated: June 3, 2025

60a

Appendix

E UNITED STATES

APPENDIX E — ORDER

OF THE

COURT OF APPEALS FOR THE THIRD CIRCUIT,

FILED JULY 20, 2022

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 20-3474

LIBBY HILSENRATH, ON BEHALF OF HER

MINOR CHILD, C.H.,

Appellant,

SCHOOL DISTRICT OF THE CHATHAMS; BOARD

OF EDUCATION OF THE SCHOOL DISTRICT OF

THE CHATHAMS; MICHAEL LASUSA, IN HIS

OFFICIAL CAPACITY AS THE SUPERINTENDENT

OF THE SCHOOL DISTRICT OF THE CHATHAMS;

KAREN CHASE, IN HER OFFICIAL CAPACITY

AS THE ASSISTANT SUPERINTENDENT OF

CURRICULUM AND INSTRUCTION AT THE

SCHOOL DISTRICT OF THE CHATHAMS; JILL

GIHORSKI, IN HER OFFICIAL CAPACITY AS THE

PRINCIPAL OF CHATHAM MIDDLE SCHOOL;

STEVEN MAHER, IN HIS OFFICIAL CAPACITY

AS THE SUPERVISOR OF SOCIAL STUDIES FOR

THE SCHOOL DISTRICT OF THE CHATHAMS;

MEGAN KEOWN, IN HER OFFICIAL CAPACITY

AS A SOCIAL STUDIES TEACHER FOR CHATHAM

MIDDLE SCHOOL; CHRISTINE JAKOWSKI, IN

HER OFFICIAL CAPACITY AS A SOCIAL STUDIES

TEACHER FOR CHATHAM MIDDLE SCHOOL

(D.N.J. No. 2-18-cv-00966)

61a

Appendix E

Present: CHAGARES, Chief Judge, HARDIMAN and

MATEY, Circuit Judges

ORDER

On June 28, 2022, we notified the parties that we

were considering taking summary action in this case.

We provided them with an opportunity to respond,

only Appellant responded, and we have considered

Appellant’s submission. We conclude that summary

action is appropriate. Accordingly, we hereby vacate the

District Court’s judgment entered on November 12, 2020

and remand this case to the District Court for further

consideration in light of the Supreme Court’s opinion in

Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (June

27, 2022).

By the Court,

s/Michael A. Chagares

Chief Circuit Judge

Dated: July 20, 2022

62a

Appendix

APPENDIX F — OPINION

OF THE

UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

NEW JERSEY, FILED NOVEMBER 12, 2020

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civ. No. 18-00966 (KM) (MAH)

LIBBY HILSENRATH, ON BEHALF OF HER

MINOR CHILD, C.H.,

Plaintiff,

SCHOOL DISTRICT OF THE CHATHAMS, BOARD

OF EDUCATION OF THE SCHOOL DISTRICT OF

THE CHATHAMS, MICHAEL LASUSA, KAREN

CHASE, JILL GIHORSKI, STEVEN MAHER,

MEGAN KEOWN, AND CHRISTINE JAKOWSKI,

Defendants.

OPINION

KEVIN MCNULTY, U.S.D.J.:

This case is an Establishment Clause challenge

by Libby Hilsenrath, on behalf of her son C.H., to

instruction about Islam in C.H.’s seventh-grade world

cultures course. Before the Court are cross-motions for

summary judgment. The motions raise certain threshold

or technical issues of standing, arising from the passage

of time and the school’s voluntary withdrawal of certain

63a

Appendix F

of the curriculum materials, and also join issue on the

merits. For the following reasons, Defendants’ motion

for summary judgment (DE 62) is GRANTED, and

Hilsenrath’s motion for summary judgment (DE 63) is

DENIED.1

1. Certain citations to the record are abbreviated as follows:

DE = docket entry

Def. Brf. = Brief in Support of Defendants’ Motion for Summary

Judgment (DE 62-3)

Def. SMF = Defendants’ Statement of Material Facts (DE 62-2)

Pl. Brf. = Brief in Support of Plaintiff’s Motion for Summary

Judgment (DE 63)

Def. Opp. = Defendants’ Opposition to Plaintiff’s Motion for

Summary Judgment (DE 68-3)

Pl. Opp. = Plaintiff’s Opposition to Defendants’ Motion for

Summary Judgment (DE 69)

Def. Reply = Reply Brief in Support of Defendants’ Motion for

Summary Judgment (DE 70)

Pl. Reply = Reply Brief in Support of Plaintiff’s Motion for

Summary Judgment (DE 71)

C.H. Dep. = C.H. Deposition Transcript, Exhibit F to

Defendants’ Motion for Summary Judgment (DE 62-10)

Jakowski Dep. = Christine Jakowski Deposition Transcript,

Exhibit Y to Defendants’ Motion for Summary Judgment (DE 62-29)

LaSusa Dep. = Michael LaSusa Deposition Transcript, Exhibit

K to Defendants’ Motion for Summary Judgment (62-15)

Weber Dep. = Jill Weber Deposition Transcript, Exhibit I to

Defendants’ Motion for Summary Judgment (DE 62-13)

64a

Appendix F

This well-framed case presented sensitive issues

requiring factual inquiry and the balancing of multiple

factors. No one’s educational, ideological, or religious

priors were sufficient to decide it. I understand well the

strong feelings that accompany such issues and claims.

I do not dismiss the plaintiff’s concerns, and I am by no

means unsympathetic with parents’ desire to control their

children’s exposure to religious indoctrination. I am also

acutely aware that this is public, not parochial, education.

Religion, however, is a fact about the world, and no study

of geography and cultures is complete without it. There

is, to be sure, a line to be drawn between teaching about

religion and teaching religion. On this record, I must

conclude that the school did not cross that line.

BACKGROUND

Facts

The World Cultures and Geography Course

During the 2016-2017 school year, C.H. was a seventhgrade student at Chatham Middle School, in the School

District of the Chathams. He was enrolled in a mandatory

Video 1 = Introduction to Islam Video, Exhibit 17 to Plaintiff’s

Motion for Summar y Judg ment, https://w w w.youtube.com /

watch?v=ZHujiWd49l4 (DE 63-18)

Video 2 = 5 Pillars of Islam Video, Exhibit 18 to Plaintiff’s

Motion for Summar y Judg ment, https://w w w.youtube.com /

watch?v=ikVGwzVg48c (DE 63-19)

Worksheet = Introduction to Islam Worksheet, Exhibit PP to

Defendants’ Motion for Summary Judgment (DE 62-46)

65a

Appendix F

course called World Cultures and Geography, taught

by defendants Megan Keown and Christine Jakowski.

(Def. SMF ¶¶ 96-98, 125.)2 The aim of the course was

to “develop[] a broad understanding of the world and its

people” so that “students will become active and informed

global citizens.” (DE 62-36, at 1.) To that end, the course

devoted a unit of study to each of the world’s major

regions. (Id.) In learning about those regions, students

learned about the religions commonly practiced in each

and compared the religions. (See, e.g., id.; DE 62-39.)

One unit was devoted to the Middle East and North

Africa (“MENA”); and students learned about Islam, the

prevalent religion in that region. (DE 62-41.) There were

nine lessons as part of this unit (mostly on geography and

current events), but Islam was only the focus of two. (Id.)

Introduction to Islam Video

The first lesson was aimed at teaching students about

generalizations through the lens of generalizations about

Islam. (Id. at 2.) Ms. Jakowski presented a PowerPoint,

and a copy was posted on Google Classroom, an online

platform for teachers to provide students with access to

course materials. (Jakowski Dep. at 29:8-18.) The last slide

asked students to write down words they associated with

Islam, watch a linked video introducing students to Islam

(“Video 1”), and then discuss what generalizations they

2. Ms. Keown prepared the syllabus for the class and taught

until November 2016, when she went on maternity leave. Ms.

Jakowski replaced her and taught the unit at issue. (Def. SMF

¶¶ 96-98.)

66a

Appendix F

could make after watching the video and whether those

generalizations were valid. (DE 62-42, at 10.) However,

Ms. Jakowski did not play Video 1 in class and students

were not required to watch it as homework. (Jakowski

Dep. at 30:21-31:1, 36:4-6, 45:11-19.) Nonetheless, C.H.,

with his mother, did access the presentation and Video 1

from Google Classroom and watched at home. (C.H. Dep.

at 35:23-36:9.)3

Video 1 is a five-minute introduction to Islam. The

video scrolls through pictures of Middle Eastern and

North African peoples, Islamic art, and Muslim sites,

with singing in the background.4 Interspersed with these

images for the first half of the video are slides of text

asking and answering questions about Islam:

• “What is Islam? . . . Faith of divine guidance for

Humanity, based on peace, spirituality and the

oneness of God[.]” (Video 1 at 0:17.)

3. A study guide for the MENA unit advised students that the

test would be open note, that their notes should include “general

knowledge about [Islam] and 5 pillars,” and that they should “[u]se

slides on Google Classroom to ensure that you have all important

information in your notes or on the handouts.” (DE 63-14, at 1.)

4. On the YouTube page, the description from the video-creator

states that the song playing in the background is “Qasida Burdah”

and provides two links for download, but neither link seems to be

currently active. Hilsenrath has provided what she attests is a

translation of the song, which is religious in nature. (DE 63-17.)

There is no testimony from C.H. that he clicked the links at the

time of viewing the video or understood what the song, which was

in Arabic, signified.

67a

Appendix F

• “Who is Allah? Allah is the one God who created

the heavens and the earth, who has no equal and is

all powerful[.]” (Id. at 0:29.)

• “Who is Muhammed (S)? Muhammed (Peace be

upon him) is the last & final Messenger of God, God

gave him the Noble Quran[.]” (Id. at 1:01.)

• “What is the Noble Quran? Divine revelation sent

to Muhammed (S) last Prophet of Allah. A Perfect

guide for Humanity[.]” (Id. at 1:38.)

• “What does history say about Islam? Muslims

created a tradition of unsurpassable splendor,

scientific thought and timeless art[.]” (Id. at 2:10.)

Around the two-minute mark, the video begins to

focus less on Islam as a religion per se, and more on the

achievements of Islamic civilization. (Id. at 2:39, 3:02-25.)

Also interspersed throughout the video are quotations

(with attributions) from Muslim prayers, the Quran, and

Muhammed. (Id. at 0:38, 1:14, 1:24, 1:48, 4:30, 4:19.) The

video closes with a text slide stating, “May God help us all

find the true faith, Islam. Ameen” (id. at 4:42), and another

slide, seemingly from the video-creator, thanking his or

her family and Allah ( id. at 4:50).

C.H. later testified that he does not remember much

about this video, and does not recall feeling coerced. (C.H.

Dep. at 26:24-25:1, 37:3-11.)

68a

Appendix F

ii.

Worksheet

The second lesson further introduced students to the

tenets of Islam. (DE 42, at 2.) Ms. Jakowski presented a

second PowerPoint to the class that provided an overview

of Islam’s major characteristics and its five pillars, “the

five obligations that every Muslim must satisfy in order

to live a good and responsible life according to Islam.”

(DE 45, at

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