Amicus Curiae Brief — Eklund v. Byron Union Union School School District District (No. 05-1539)

— JUN 30 2006 No. 05-1539

an The

Supreme Court of the Gnited States

JONAS EKLUND, et al.,

Petitioners,

vs.

BYRON UNION SCHOOL DiSTRICT, et al.,

Respondents.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF AND AMICUS CURIAE BRIEF OF

AMERICAN CATHOLIC LAWYERS ASSOCIATION,

INC., IN SUPPORT OF PETITIONERS

4

vv

DENIS V. BRENAN, Esa.

P.O. Box 465

Newtown Square, PA 19073

(610) 359-0893

Pennsylvania Litigation Counsel for the

American Catholic Lawyers

Association, Inc. (ACLA)

Counsel of Record for Amicus ACLA

CHRISTOPHER A. FERRARA*

AMERICAN CATHOLIC LAWYERS

ASSOCIATION, INC.

420 Route 46 East, Suite 7

Fairfield, NJ 07004-6092

(973) 244-9895

Of counsel on Amicus brief

*Admitted Ninth Circuit

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

1

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

Pursuant to Supreme Court Rule 37.2(b), the Ameri-

can Catholic Lawyers Association, Inc., respectfully moves

this Court for leave to file the attached amicus curiae brief

in support of the Petitioners, Jonas Eklund, et al. The

consent of the attorneys for the Petitioner has been ob-

tained. The consent of the attorneys for the Respondents

was requested, but there has been no response to the

request.

The American Catholic Lawyers Association, Inc.

(ACLA) is a not-for-profit religious organization dedicated

to the defense of the rights of Catholics in America, par-

ticularly in the area of First Amendment liberties. ACLA

attorneys have represented Roman Catholic public school

students and their parents in civil rights claims against

public school authorities who have violated the Free

Exercise and Establishment Clauses by promoting non-

Christian religions in the public schools.

ACLA’s amicus curiae brief argues that unless there is

a double standard for application of this Court’s decision in

Lemon v. Kurtzman, 403 U.S. 602 (1971), and this Court’s

precedents on the Establishment Clause in the public

school context, respondents’ “interactive module” requiring

impressionable public school students effectively to become

Muslims cannot stand. ACLA further contends that this

case presents an ideal vehicle for this Court to make it

clear that the school cases apply with equal force to public

2

school promotion of any and all religions, not just Christi-

anity.

June 30, 2006

Respectfully submitted,

DENIS V. BRENAN

P.O. Box 465

Newtown Square, PA 19073

Telephone: 610-359-0893

Counsel of Record and

Pennsylvania Litigation Counsel

for the American Catholic

Lawyers Association, Inc.

Counsel for Amicus Curiae

American Catholic Lawyers

Association, Inc.

TABLE OF CONTENTS

Page

INTEREST OF AMICUS. .00ccsccccegusessscsecsssescesseosesseces 1

SUMMARY OF ARGUMENT. .............c0c:ccsceceensseeeeeees 2

BE EE secicedsdpvcavsesttncncciscssdunivonssaniensinipeoanhuatincl 3

THE ESTABLISHMENT CLAUSE PROHIBITS

PUBLIC SCHOOL PROMOTION OF “ISLAM

LITE,” AS WELL AS “ISLAM CLASSIC”............... 3

A. The “endorsement” test................ccsesaereees 3

B. The impressionable youth standard......... 4

C. The district court’s novel theory allowing

“Islam Lite” in the classroom................... 6

INCE ATEN ocvsinicasssverscniupesstcpecctndevessveineseoseseseensobs 11

TABLE OF AUTHORITIES

Page

CASES:

Altman v. Bedford Central Sch. Dist, 245 F.3d 49

(2d Cir. 2001), cert. denied, 534 U.S. 827 (2001)............. 1

Brown v. Woodland Joint Unified School District,

27 F.3d 1373 (9th Cir. 1994)............... ARSE STC NO See 7,8

County of Allegheny v. American Civil Liberties

Union Greater Pittsburgh Chapter, 492 U.S. 573

OR si ici cod icc vodbnadinlodsdeseckcisanatesdubatrensinea 3, 4, 6

Edwards v. Aguillard, 482 U.S. 578 (1987) ......c.sssssssssssseses 5

Gillette v. United States, 401 U.S. 437 (1971)..................... 4

Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985),

overruled in part on other grounds, Agostini uv.

Ped: BE CF Bee CRO ED ccnsencccuseacdcicdccedveacsviveonvonces 5, 8

Lee v. Weisman, 505 U.S. 577 (1992) ........cccsseccceeeseeeees 4,6

Lemon v. Kurtzman, 403 U.S. 602 (1971)...........cceseeseeseseees 3

Levitt v. Committee for Pub. Educ. & Religious

Liberty, 418 U.S, GIG GTA) vicccecscsecvescasegsessssesssvernineotessss 5

‘Lynch v. Donnelly, 465 U.S. 668 (1984) ........seccccecsceseseeenens 3

Meek v. Pittenger, 421 U.S. 349 (1975) ........eeeseeeenee 5

. CONSTITUTIONAL PROVISION

TE Cee Ei iicass ic ch dscendecessnbaasdasdtuchessiavvereeoesanios 4

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES:

Gianella, “Religious Liberty, Nonestablishment and

Doctrinal Development,” 81 Harv. L. Rev. 513,

TE TIE cs cccectuiservasvncreteinemecesieavertestbincasedatpepntvscnecctons 8

1

INTEREST OF AMICUS’

ACLA is a nonprofit religious organization dedicated

to defending the religious and civil rights of Catholics by

means of litigation, public discourse and debate. ACLA has

engaged in religious liberties litigation on behalf of Catho-

lic plaintiffs and defendants in courts across the nation,

and has filed merits and/or amicus briefs in numerous

venues, including the United States Supreme Court.

ACLA attorneys represented the successful (at the

trial level) plaintiffs in the case of Altman v. Bedford

Central Sch. Dist, 245 F.3d 49 (2d Cir. 2001), cert. denied,

534 U.S. 827 (2001), which the district court in this case

has cited, and which raised issues quite similar to those

presented here.

ACLA is gravely concerned about what it believes is a

de facto double standard of Establishment Clause juris-

prudence which has emerged in Altman and other similar

cases, under which the overt promotion of non-Christian

religions such as Islam and Hinduism in the public schools

under the guise of “cultural education” is treated far more

leniently than the merest suggestion of school promotion

of the Christian religion.

ACLA believes that this case is the clearest example

to date of promotion of a non-Christian religion by public

school authorities, and that it presents an excellent vehicle

to demonstrate that the strictures of the Establishment

* No counsel for a party authored this brief in whole or in part. No

person or entity aside from the American Catholic Lawyers Association,

Inc. (ACLA), its members, or its counsel made a monetary contribution

to the preparation or submission of this brief. The ACLA has no parent

corporation and no stock.

2

Clause in the public school arena apply equally to Chris-

tian and non-Christian creeds.

ACLA thus supports petitioners in their arguments

for reversal of the Ninth Circuit’s perfunctory unpublished

opinion affirming the district court’s dismissal of their

claims concerning respondents’ “interactive educational

module,” which engages impressionable students in the

practices and tenets of Islam.

he

.

SUMMARY OF ARGUMENT

The Excelsior School, a middle school in the respon-

dent Byron Union School District, actively promoted and

endorsed the religion of Islam by means of an “interactive

educational module” whose aim could not be more explic-

itly contrary to the Establishment Clause: “From the

beginning [of this module] you and your classmates will

become Muslims.” ER 1934, 2299. The “module” involved

nothing less than the school-sponsored immersion of

impressionable students in the ways and beliefs of Islam.

A “module” whose aim was that the students “will

become Catholics” would not have been tolerated for a

moment in the public schools. Unless there is, in fact, a

double standard in this area of constitutional law, the

defendants’ Islam “module” must be struck down, and the

Ninth Circuit’s decision reversed.

*’

v

3

ARGUMENT

THE ESTABLISHMENT CLAUSE PROHIBITS

PUBLIC SCHOOL PROMOTION OF

“ISLAM LITE,” AS WELL AS “ISLAM CLASSIC.”

A. The “endorsement” test.

In Lemon v. Kurtzman, 403 U.S. 602 (1971), this

Court enunciated its classic three-part test for determin-

ing whether state action violates the Establishment

Clause. The challenged state action must (1) “have a

secular legislative purpose,” (2) have a “principal or

primary effect ... that neither advances nor inhibits

religion,” and (3) “not foster an excessive government

entanglement with religion.” Lemon, 403 U.S. at 612-13.

In Lynch v. Donnelly, 465 U.S. 668, 688-693 (1984)

(O’Connor, J., concurring), Justice O’Connor suggested

that the second prong of the Lemon test, which looks to

whether the challenged state action advances or inhibits

religion, be formulated as an “endorsement test.” Under

this analysis, the challenged practice would be invalid if it

has either the purpose or effect of communicating a mes-

sage of government endorsement or disapproval of relig-

ion. Id. at 691-92.

Accordingly, in County of Allegheny v. American Civil

Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573

(1989), this Court applied an endorsement test that

“precludes government from conveying or attempting to

convey a message that religion or a particular religious

belief is favored or preferred,” id. at 593, (internal quota-

tions and citations omitted), or even “appearing to take a

position on questions of religious belief.” Jd. at 594 (em-

phasis added, here and throughout this brief).

4

In reviewing the challenged school activities, this

Court need look no further than the “endorsement” test.

Respondents’ immersion of students in the practices and

tenets of Islam — but not those of any other religion —

indubitably conveyed at least the appearance that “a

particular religious belief is favored or preferred.” County

of Allegheny, 492 U.S. at 593. This is all the more so given

the “impressionable youth” standard governing issues of

state-sponsored religious endorsement in the classroom.

B. The impressionable youth standard.

The First Amendment mandates strict neutrality by

state actors in the field of religion. Gillette v. United

States, 401 U.S. 437, 452 (1971). Even “subtle departures

from neutrality” are forbidden by the Establishment

Clause. Id. at 452. Nowhere does this principle apply with

greater force than in the public school classroom.

Where public schools filled with impressionable

children are concerned, this Court has established a

heightened level of scrutiny for state action alleged to

violate this requirement of strict religious neutrality: “As

we have observed before there are heightened concerns

with protecting freedom of conscience from subtle coercive

pressure in the elementary and secondary public schools.”

Lee v. Weisman, 505 U.S. 577, 592 (1992). The concept of

“subtle coercive pressure” or “subtle and indirect pres-

sure,” Lee, 505 U.S. at 592-94, constitutes a separate and

distinct test for Establishment Clause violations in the

public school context.

This Court’s “impressionable youth” standard was

developed to address the salient fact that public school

5

students are, as this Court has observed, a captive audi-

ence:

The State exerts great authority and coercive

power through mandatory attendance require-

ments and because of the students’ emulation of

teachers as role models and the children’s sus-

ceptibility to peer pressure. ... In no activity of

the State is it more vital to keep out divisive forces

than in its schools.

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

Accordingly, this Court has noted repeatedly that even

the risk of an Establishment Clause violation in public

schools warrants injunctive relief — without proof of any

actual proselytization by school authorities. Grand Rapids

Sch. Dist. v. Ball, 473 U.S. 373, 387 (1985) (“substantial

risk” requires injunction), overruled in part on other

grounds, Agostini v. Felton, 521 U.S. 203, 235 (1997);

Levitt v.. Committee for Pub. Educ. & Religious Liberty,

413 U.S. 472, 480 (1973) (“substantial risk”); Meek v.

Pittenger, 421 U.S. 349, 369 (1975) (“potential”).

The Ninth Circuit’s one-paragraph unpublished

opinion on the merits, which cites a lone and quite inappo-

site Ninth Circuit precedent, ducks the central issue in

this case: Are the lower courts following a double standard

for the application of this Court’s: Establishment Clause

jurisprudence in the school cases? That is, are they apply-

ing the school cases to exclude only Christianity, but not

other religions, from the classroom?

6

C. The district court’s novel theory allowing

“Islam Lite” in the classroom.

The Ninth Circuit’s opinion asserts, without the least

analysis, that “The Islam program activities were not

‘overt religious exercises’ that raise Establishment Clause

concerns.” App. 1. That naked conclusion ignores the

entire record in this case. As the district court's own

opinion conceded, the express aim of the challenged

activities in the “interactive educational module” at

Excelsior School, as stated in the Student Guide, was that

“{flrom the beginning [of this module], you and your

classmates will become Muslims.” ER 2534.

This undisputed fact alone mandates reversal. An

elementary school curriculum in which students are told

that they will become Muslims —- even for “demonstration”

or “role-playing” purposes — cannot possibly survive First

Amendment scrutiny under either the “subtle coercive

pressure” or the “endorsement” test enunciated in Lee and

Allegheny, especially given the heightened scrutiny re-

quired by the impressionable youth standard.

If respondents had introduced an “interactive educa-

tional module” whose aim was that “you and your class-

mates will become Catholics,” outraged non-Catholic

parents and a battalion of ACLU lawyers would have

rushed to the district court and sought injunctive relief,

and the Ninth Circuit would most certainly have affirmed

a grant of injunctive relief. There is only one explanation,

therefore, for the result here: a double standard of Estab-

lishment Clause analysis.

Confronted with an insuperable Establishment Clause

problem, the district court tried to navigate around it by

reasoning that the undeniably religious activities in which

the school had embroiled children were only “simulations

of Islam activities that were similar to, but not actual

elements of, the Islamic faith. ... [T]hese approximations

of Islamic behavior cannot be considered actual ‘religious

activity ... ” App. 20. In other words, the district court

found that since the “module” required students to prac-

tice a sort of “Islam Lite” — a slimmed-down version of

Islam for classroom purposes — the whole exercise could

pass constitutional muster. The Ninth Circuit has affirmed

this preposterous idea, albeit in an unpublished opinion

clearly designed to deflect this Court’s review.

The Ninth Circuit’s affirmance of the district court

rests entirely on an inapposite citation to its own opinion

in Brown v. Woodland Joint Unified School District, 27

F.3d 1373, 1378 (9th Cir. 1994). But Brown involved

nothing more than students reading about and discussing

witches and making up some magical spells. These “were

merely fantasy activities ... that happen to resemble

religious practices” of the Wiccan religion. Jd. at 1382.

Furthermore, the plaintiffs in Brown conceded that the

authors-editors of the reading material “were unfamiliar

with the religion of witchcraft” and were not intending to

promote it. Jd. at 1377. The classroom activity at issue

thus had a mere “coincidental resemblance to a religious

practice.” Id. at 1381.

This case, however, does not involve a merely coinci-

dental resemblance to Muslim religious practices, but

rather the deliberate and explicit curricular goal that “you

and your classmates will become Muslims.” As the Ninth

Circuit recognized in Brown, “active participation in

‘ritual’ poses a greater risk of violating the Establishment

8

Clause than does merely reading, discussing or thinking

about religious texts.” Brown, 27 F. 3d at 1380.’

The Ninth Circuit has ignored its own advice in

Brown. The challenged activities were not, as the district

court opined, mere “simulations of Islam activities,” but

rather partially performed Islamic practices and partially

learned Islamic teachings. The “interactive educational

module” undeniably embroiled impressionable students in

learning some of the prayers Muslims learn, making some

of the sacrifices Muslims make during Ramadan, learning

some of the religious truths Muslims are required to know,

and dressing and being known by Muslim names some of

the time. The result was not “simulated Islam” but rather

a dabbling in real Islam that is constitutionally indefensi-

ble in the public school context. See Petition, 3-12.

The district court seems to have been under the

impression that the defendants were free to promote parts

of Islam in order to stimulate interest in other religions as

part of “cultural education.” But as this Court noted in

Ball, classroom activity that “increases respect for” or

“helps stimulate interest” in a particular religion trans-

gresses the Establishment Clause, even without overt

proselytizing by teachers. Ball, 473 U.S. at 391-92 (citing

Gianella, “Religious Liberty, Nonestablishment and

Doctrinal Development,” 81 Harv. L. Rev. 513, 574 (1968)).

* In dicta, the Brown opinion suggested that having students

reenact religious rituals such as the Last Supper or a Passover “might

be permissible if presented for historical or cultural purposes.” Id. at

1380. But this Court declined to reach the question, since the activities

challenged in Brown were not explicitly religious. In this case, however,

students were deliberately engaged in overtly religious activities in

order to “become Muslims.” No historical or cultural purpose could

justify this immersion of students in the practices and tenets of Islam.

9

Moreover, it is crucial for application of the “endorse-

ment” test that, as the district court itself conceded, no

other religion was presented to Excelsior students in this

“interactive” fashion. App. 20. The students were expected

to “become” only Muslims. Thus, the Ninth Circuit has

affirmed as religiously neutral an “educational” program

in which impressionable youth in public school classrooms

are required to partake of the tenets and practices of one —

and only one ~ religion out of all the religions in the world.

Yet there can be no question that the Ninth Circuit would

have struck down an “interactive module” involving these

Catholic analogues to the Islam “module”:

¢ Take the confirmation name of a Catholic

saint.

e Dress like a Catholic priest or nun.

e Wear nametags bearing the student’s Catho-

lic confirmation name and a crucifix bearing

the Body of Christ.

¢ Memorize and repeat for the teacher the

first verse of the Gospel of St. John: “In the

beginning was the Word, and the Word was

with God, and the Word was God,” as well as

other portions of the New Testament.

¢ Memorize the opening line of the Hail Mary

~— “Hail Mary, full of grace, the Lord is with

Thee” — and repeat it for the teacher both in

the classroom and upon exiting the class-

room.

® Create banners stating “In the name of the

Father, and of the Son, and of the Holy

Ghost.”

10

¢ Give up a lunch or engage in some other act

of self-denial, and perform an act of charity,

in keeping with a Catholic’s Lenten obliga-

tions of fasting and almsgiving.

¢ Memorize religious sayings of Catholic

saints, such as St. Augustine’s “You have

made us for yourself, and our hearts are

restless until they rest in You.”

¢ Make a virtual pilgrimage to Rome by play- -

ing a dice game and drawing cards contain-

ing Catholic teachings denominated as

“truth” and “fact,” such as: “The Holy Catho-

lic Church was founded by Jesus Christ

upon the Rock of Peter. Fact.”

When legal principles are applied inconsistently, law

as such ceases to exist, and the courts become mere

dispensers of ad hoc decisions tailored to the predilections

of the day. The rule of law itself demands that the Ninth

Circuit’s double standard of Establishment Clause juris-

prudence be corrected. Moreover, if this Court does not

grant review, the jumble of ad hoc decisions in this area —

motivated, it seems, by little more than the reigning

political correctness — will continue to accumulate in the

lower courts. There is no better vehicle than this case for

the task of bringing consistency to the lower courts’ appli-

cation of this Court’s Establishment Clause precedents in

the school cases.

. 4

11

CONCLUSION

This Court should grant the petition for a writ of

certiorari.

June 30, 2006

Respectfully submitted,

DENIS V. BRENAN, ESQ.

P.O. Box 465

Newtown Square, PA 19073

(610) 359-0893

Pennsylvania Litigation Counsel for the

American Catholic Lawyers

Association, Inc. (AC'LA)

Counsel of Record for Amicus ACLA