Amicus Curiae Brief — Koenick v. Felton

a nates ~

[ euorame Court, U.S.

FAILED

DEC 9 1999

CLERK

(JY “a

No. 99-816

IN THE

SUPREME COURT OF THE UNITED STATES

JUDITH M. KOENICK,

Petitioner,

¥.

REGINALD M. FELTON, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF FOR AMICUS CURIAE AMERICAN JEWISH CONGRESS

IN SUPPORT OF PETITIONER

Stuart H. Newberger*

Scott E. Gant

Dylana L. Blum

CROWELL & MORING LLP

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 624-2500

* Counsel of Record

Marc D. Stern

Harvey Reiter

AMERICAN JEWISH CONGRESS

National Capital Region

2027 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 332-4001

Counsel for Amicus Curiae

American Jewish Congress

QUESTION PRESENTED

Does the mandatory, state-wide closure of all public

schools in Maryland on “Good Friday” — without any secular

or administrative basis — violate the establishment clause of

the First Amendment as applied to the states through the

Fourteenth Amendment?

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TABLE OF CONTENTS

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REASONS FOR GRANTING THE PETITION ................... l

A. Maryland's Law Impermissibly Endorses Religion...2

B. Maryland Has Not Proffered A Secular Or An

Administrative Basis For The School Closing Law...6

C. The Conflict Among The Lower Courts Warrants

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TABLE OF AUTHORITIES

CASES

Abington Sch. Dist. v. Schempp, 374 U.S. 203 CPPGS icaccnsanss 3

Agostini v. Felton, 521 U.S. 203 5 2 | SERA ee 3

Allegheny County vy. Greater Pittsburgh ACLU,

Be MERE IMIY 5. scccxssssnssoeconeceseassvecsesosccoscececccec... 5,3

Bridenbaugh v. O’Bannon, 185 F.3d 796

ia Se 9, 10

Cammack v. Waihee, 932 F.2d 765, 790 (Ca Cir. 1991)........ 8

Edwards vy. Aguillard, 482 U.S. 578 2g SSSR oa 4,7

Engel v. Vitale, 370 U.S. 421 | Sa 3, 6

Grand Rapids Sch. District y. Ball,

I BE OY ss cerescecepssiascocersersessesmeosede, concscecc a... 3,4

Koenick v. Felton, 190 F.3d 259 (4" Cir. 1999) .......... 4

Larson v. Valente, 456 U.S. 228 | enn 3

Lee v. Weisman, 505 U.S. 577 I shasricssissdaen deco Losiccacce see 3

Lynch v. Donnelly, 465 U.S. 668 —, ee 4

McCollum v. Board of Education, 333 U.S. 203 (1948)... 5

Metzl v. Leininger, 57 F.3d 618 ‘ts Ree FIED ccccncccocee 7, 8,9

Santa Fe Indep. Sch. Dist. v. Doe, cert. granted,

68 U.S.L.W. 3325 (U.S. Nov. 15, 1999) (No. 99-62).......... 2

Wallace v. Jaffree, 472 U.S. 38 Pe hessesntewaciresstsserteaiaxeess, 3

Westside Community Bd. of Ed. v. Mergens,

Pe MPI cc cinciceissssiasthcadenvacoscoscsiheccoccceeces 5

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution

NN TE pte cee cathe Lcnisicaaienericoseaiessascisececaces., passim

Statutes

Md. Code Ann., Educ. § 7-103(c)(1)(iii) oes passim

105 Ill. Comp. Stat. Ann. 5/24-2.00...ccccccccccsssesecseseeeescccc. 8

INTEREST OF AMICUS

The American Jewish Congress is an organization of

American Jews founded in 1918 to protect the civil, political,

economic and religious interests of American Jewry.' It has

a long-standing commitment to the integrity of the

establishment and free exercise clauses of the First

Amendment, having either represented one of the parties or

filed briefs amicus curiae in most of the cases interpreting

those First Amendment principles before this Court. The

National Capital Region of the American Jewish Congress

has been actively involved in many cases in the Washington,

D.C. area implicating the significant constitutional issues

presented by this case. It filed an amicus brief in support of

Petitioner before the United States District Court for the

District of Maryland, and also filed an amicus brief and

participated in oral argument in support of Petitioner before

the United States Court of Appeals for the Fourth Circuit.

Through counsel, the parties have consented to the filing of

this amicus brief. Letters of consent have been lodged with

the Clerk.

REASONS FOR GRANTING THE PETITION

This Court has long recognized that the establishment

clause requires the utmost vigilance against governmental

endorsement of any religion — either on a practical or

symbolic level — particularly when religious issues affect the

nation’s public schools. School children are especially

susceptible to the influence of state and local government

Counsel for a party did not author this brief, in whole or in

part. No person or entity other than amicus curiae, its members, or its

counsel, made a monetary contribution to the preparation or submission

of this brief.

és

authority. Indeed, the Court recently granted certiorari in a

case raising important establishment clause issues arising in

the public school setting. See Santa Fe Indep. Sch. Dist. v.

Doe, cert. granted, 68 U.S.L.W. 3325 (U.S. Nov. 15, 1999)

(No. 99-62) (whether school policy permitting student-led,

student-initiated prayer at football games violates the

establishment clause). The question presented here requires

the Court to determine the appropriate constitutional criteria

applicable to state-sponsored holidays as well as the impact

of this Maryland statute’ on thousands of public school

children who do not observe the solemn Christian holiday,

Good Friday.

There is a clear split in the Circuits on these issues. The

lower courts have traveled in conflicting and confusing

directions as they attempt to construct the proper

constitutional framework for determining whether statutes

like Maryland’s violate the establishment clause by

mandating state public holidays for Good Friday — holidays

for public schools, state governmental offices, public

employment and other areas that affect the fabric of civic life.

This Court must establish a clear, uniform set of criteria to

guide the lower courts and the states as they consider the

constitutionality of such holidays.

A. Maryland’s Law Impermissibly Endorses Religion

Maryland’s statute makes it easier for observers of Good

Friday to practice their religion than for adherents of other

religious denominations to practice theirs. On that basis the

> See Md. Code Ann., Educ. § 7-103(c)(1)(iii) (providing for the

closing of all public schools “[t]he Friday before Easter”).

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;

:

;

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statute should be subject to strict scrutiny review. See

Larson v. Valente, 456 U.S. 228, 246 (1982).

But quite apart from conferring a tangible advantage on

some religious groups but not others, the statute is a

profound symbol of the concert of “church” and “state.”

When a state undertakes no effort to substantiate any

administrative or secular need for declaring a state-wide

school holiday and, nonetheless, proceeds to close all of its

schools on what may be the holiest of Christian holy days,

there is ample reason to perceive the holiday as government

sponsorship of a particular religion.

This Court’s recent establishment clause jurisprudence

has not diminished the longstanding recognition that

“symbolic union[s] of government and religion” tread

dangerously on First Amendment principles. Grand Rapids

Sch. Dist. v. Ball, 473 U.S. 373, 392 (1985); Agostini v.

Felton, 521 U.S. 203, 227 (1997). This danger is only

heightened when dealing with young school children, for

“[t]he symbolism of a union between church and state is

most likely to influence children of tender years, whose

experience is limited and whose beliefs consequently are the

function of environment as much as of free and voluntary

choice.” Ball, 473 U.S. at 390; see also Lee v. Weisman, 505

U.S. 577, 592 (1992) (“there are heightened concerns with

protecting freedom of conscience from subtle coercive

pressure in the elementary and secondary public schools”).

Here, of course, the Maryland statute does not literally

inject religious practices “into” the public schools — rather, it

mandates that all of the State’s public school students take a

holiday on Good Friday. This is certainly not the same

circumstance that this Court has addressed in the past. See,

e.g., Engel v. Vitale, 370 U.S. 421 (1962); Abington Sch.

Dist. v. Schempp, 374 U.S. 203 (1963); Wallace v. Jaffree,

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472 U.S. 38 (1985); Edwards v. Aguillard, 482 U.S. 578

(1987). However, the impressionability of “children in their

formative years” operates with equal force whether the

children are construing the meaning of what they are told to

do in school or the significance of when school will be

closed. Ball, 473 U.S. at 390. Thus, Jewish and other non-

Christian students throughout Maryland are at risk of

alienation — from other students, teachers and administrators

— when the State mandates the closing of school for a

religious holiday not observed by them. Cf Lynch v.

Donnelly, 465 U.S. 668, 694 (1984) (“Government practices

that purport to celebrate or acknowledge events with

religious significance must be subjected to careful judicial

scrutiny.”). Jewish parents can only speculate — given the

lack of any secular or administrative basis — when their

children ask why the State of Maryland mandates that their

school must be closed for “Good Friday.”

The Fourth Circuit’s decision upholding the Maryland

statute casts aside vital establishment clause principles. The

Court of Appeals casually dismissed the need for a genuine

(rather than a presumed) secular rationale for the Good

Friday holiday, based merely on the fact that Maryland

enacted this religious-based holiday in the 19th Century.

The Court of Appeals apparently was satisfied that

Maryland’s mandate of a Good Friday school holiday has

been on the books for over a century, and is now rooted into

state calendars, holidays and practices. See Koenick v.

Felton, 190 F.3d 259, 266 (4 Cir. 1999) (Good Friday has

“been a part of the Montgomery County School Public

School Calendar for 130 years [and] . . . become part of the

school community’s expectations and nears, §

Apparently, the Court of Appeals has created a new rule of

constitutional law: practices that would otherwise violate the

establishment clause will pass constitutional muster based

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only on the passage of time, political convenience or

majority acquiescence.

Maryland’s Good Friday holiday was, of course, not

founded upon contemporary administrative considerations,

but instead reflects the religious perspective of its 19th

Century enactors. Lacking any secular or administrative

justifications, the historical Origins of Good Friday as a

school holiday — which still govern Maryland today —

undoubtedly are predicated on Good Friday’s religious

character. To ignore the obvious religious origins of the

Good Friday school holiday makes a mockery of the

principle that courts must “remain sensitive, especially in the

public schools, to ‘the numerous more subtle ways that

government can show favoritism to particular beliefs or

convey a message of disapproval to others.’” Westside

Community Bd. of Ed. v. Mergens, 496 U.S. 226, 269 (1990)

(Marshall, J., concurring) (quoting Allegheny County y.

Greater Pittsburgh ACLU, 492 US. 573, 627-28 (1989)

(O’Connor, J., concurring in part and in judgment)).

Because “[t]he public school is at once the symbol of our

democracy and the most pervasive means for promoting our

common destiny. . . [iJn no activity of the State is it more

vital to keep out divisive forces than in its schools, to avoid

confusing . . . what the Constitution sought to keep strictly

apart.” McCollum v. Board of Education, 333 U.S. 203, 231

(1948) (Opinion of Frankfurter, J.).

Even if Maryland’s mandate of Good F riday as a school

holiday is predominantly symbolic in nature, that symbolic

embrace of this most solemn and important Christian holiday

violates the establishment clause. The State of Maryland has

placed its imprimatur on Good Friday in the eyes of its

public school students and the rest of its citizens. It has

determined — without regard to how many students and

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school employees might be absent — that all school

employees must take Good Friday as a day of paid leave, and

that no students can attend school. By upholding the

constitutionality of Maryland’s law, the lower courts run

afoul of this Court’s admonition that “[w]Jhen the power,

prestige and financial support of government is placed

behind a particular religious belief, the indirect coercive

pressure upon religious minorities to conform to the

prevailing officially approved religion is plain.” Engel, 370

U.S. at 431.

B. Maryland Has Not Proffered A Secular Or An

Administrative Basis For The School Closing Law

The establishment clause ensures that ours is not a

Christian nation; rather, it is a pluralistic one, comprised of

peoples of myriad faiths, beliefs and views. Jewish citizens,

like other non-Christians, are deeply affected by laws, like

Maryland’s, that declare Good Friday a holiday for all of the

State’s public schools, without regard to valid secular or

administrative reasons.

It is important to note that the American Jewish

Congress is not offended by the idea that some or many

public schools could be closed on Christian holidays,

including Good Friday. What does offend is for a state to

declare an important religious holiday a public school

holiday without any evidence that the state’s action is

grounded on secular purposes.

Consistent with that principle, the handful of public

schools around the nation that choose to close for the Jewish

high holidays Rosh Hashanah and Yom Kippur — when they

fall on schools days — may do so consistent with

establishment clause principles when the closings are based

on documented patterns anu ¢: apirically-based projections of

student and teacher absewzteeism. Maryland’s statute lacks

any such factual basis, aiid the litigation record below —

particularly given the summary judgment stage at which the

case was decided — similarly lacks documented support for

the statute’s presumed purpose.

It might seem odd that the constitutionality of closing all

the public schools on Good Friday should turn on the results

of an empirical study or other bona fide evidence to project

student and teacher absenteeism. The establishment clause,

however, requires such an undertaking. As with many other

constitutional commitments, guarding against establishment

clause violations necessitates a showing that government has

acted for reasons other than religion. Here, requiring

evidence to support Maryland’s post hoc assertion of

administrative need for closing all of the State’s schools on

Good Friday is the only way to protect the First Amendment

rights of all Maryland’s citizens who do not observe Good

Friday. Cf. Metzl v. Leininger, 57 F.3d 618, 622 (7" Cir.

1995) (Although the “constitutionality of statutes is typically

determined by reference to general considerations . . . , [i]t

was the state’s decision to pitch its defense on the

infeasibility of keeping the schools open of Good Friday.

The question of feasibility is not one that can be settled as a

matter of first or general principles. It requires a showing of

fact that the state has not attempted to make.”). The trial

court’s grant of summary judgment, upholding the Maryland

Statute — and its affirmance on appeal — was based on a

record that lacked such evidence. Accordingly, summary

judgment clearly was an inappropriate vehicle for resolving

this important issue. Cf Edwards, 482 U.S. at 634 (Scalia,

J., dissenting).

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c. The Conflict Among The Lower Courts Warrants

Review By This Court

In Metz! v. Leininger, 57 F.3d 618 (7" Cir. 1995), the

Seventh Circuit invalidated an Illinois law’ requiring the

closing of all public schools on Good Friday.’ Like

Maryland’s law, the Illinois statute designated Good Friday

as a holiday for all public school students and teachers

throughout the state.’ In contrast to the Fourth Circuit here,

the Seventh Circuit in Metz/ found that the effect of Illinois

singling out Good Friday for special recognition by its public

schools impermissibly advanced religion:

The state law closing all public schools on Good Friday

makes the burden of religious observance lighter on

Christians than on the votaries of other religions. The

Christian does not have to absent himself from school

on a school day, and so perhaps have to incur the

> See 105 Ill. Comp. Stat. Ann. 5/24-2.

* The American Jewish Congress also participated in the Metz/

case.

* The Maryland and Illinois statutes also identify Christmas and

Thanksgiving as legal school holidays. While these days certainly have

religious origins, the courts have observed that both Christmas and

Thanksgiving have acquired significant non-religious components. See

Cammack v. Waihee, 932 F.2d 765, 790 (9" Cir. 1991) (Nelson, J.,

dissenting) (“I find this equation of Good Friday with Christmas and

Thanksgiving both distasteful to practicing Christians, who do not wish a

serious day permeated by mirth and levity, and unsettling to adherents of

other religions or nonreligious persons, who would not desire their

secular celebrations of Thanksgiving and Christmas to be linked to a

holiday they could not imagine honoring.”); Allegheny County v. Greater

Pittsburgh ACLU, 492 U.S. 573, 633 (1989) (“The Easter holiday

celebrated by Christians may be accompanied by certain ‘secular aspects’

such as Easter bunnies and Easter egg hunts; but it is nevertheless a

religious holiday.”) (O’Connor, J., concurring in part and in judgment).

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inconvenience of a make-up exam on a later day, as the

observant Jew might have to do if his school district

decided not to close for any Jewish holidays. ... [T]he

First Amendment does not allow a state to make it easier

for adherents of one faith to practice their religion than

for adherents of another faith to practice their

religion ....

Id. at 621.

In addition to finding IIlinois’s statute “accorded special

recognition to Christianity beyond anything . . . shown to be

necessary to accommodate the religious needs of the

Christian majority,” Jd., the Seventh Circuit held that Illinois

should carry the burden of proving the existence of a

legitimate secular purpose for the Good Friday holiday. /d.

at 622. As Chief Judge Posner explained, “[t]he existence of

such a justification [for the Good Friday school closing law]

is in the nature of a defense, and the burden of producing

evidence in support of a defense is, of course, normally on

the defendant.” Jd. Because Illinois “failed to show that its

law closing the public schools throughout the state on Good

Friday is necessary to prevent a wasteful expenditure of

educational resources,” the Court invalidated the state’s

Good Friday law as violative of the establishment clause. Jd.

at 623 (italics in original).

Not only do conflicts exist between the Fourth and

Seventh Circuits regarding Good Friday public holidays, but

the Seventh Circuit’s own treatment of the issue is

inconsistent. Despite the Seventh Circuit’s holding in Metz/

that Illinois’s Good Friday school closing law violated the

establishment clause, a different panel of the Seventh Circuit

subsequently has held that Indiana’s recognition of Good

Friday as a holiday for state employees does not violate the

establishment clause. See Bridenbaugh v. O'Bannon, 185

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F.3d 796 (7™ Cir. 1999). Bridenbaugh also is the subject of a

petition for certiorari currently pending before this Court,

No. 99-812.

The Fourth and Seventh Circuits have rendered

fundamentally different rulings regarding the critical issue of

who should bear the burden of proof in the these cases, as

well as the ultimate constitutionality of such laws. Faced

with contradictory rulings, the states and the nation’s school

systems need this Court’s guidance regarding the appropriate

standards and applicable burdens for ascertaining what role,

if any, religious holidays may play in mandating state-wide

public school closures.

CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully submitted,

Stuart H. Newberger* Marc D. Stern

Scott E. Gant Harvey Reiter

Dylana L. Blum AMERICAN JEWISH CONGRESS

CROWELL & MORING LLP National Capital Region

1001 Pennsylvania Ave., N.W. 2027 Massachusetts Ave., N.W.

Washington, D.C. 20004 Washington, D.C. 20036

(202) 624-2500 (202) 332-4001

* Counsel of Record Counsel for Amicus Curiae

American Jewish Congress