Petition for Writ of Certiorari — Skoros v. City of New York, New York (No. 06-271)

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No. ___OFFICE OF THE CLERK

Sn the

Supreme Court of the United States

ANDREA SKOROS, individually, and next

friend of NICHOLAS TINE, a minor,

and CHRISTOS TINE, a minor,

Petitioners,

CITY OF NEW YORK, JOEL L. KLEIN,

in his official capacity as Chancellor,

New York City Department of Education, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT JOSEPH MUISE

Counsel of Record

THOMAS MORE LAW CENTER

24 FRANK LLoyp Wricut Drive

P.O. Box 393

ANN Arbor, MI 48106

(734) 827-2001

Counsel for Petitioners

Becker Gallagher Legal Publishing, Inc. 800.890.5001

ee,

eee

QUESTIONS PRESENTED

This case presents an issue of exceptional public

importance. It involves an Establishment Clause challenge to

a religiously divisive policy promulgated by the Department of

Education for the City of New York—the largest public school

system in the country—that affects over one million students

enrolled in 1,200 public elementary and secondary schools.

The public school policy at issue expressly permits Jewish and

Islamic religious symbols in year-end holiday celebrations, but

bans the similar use of Christian religious symbols.

In a lengthy decision, a sharply divided panel of the

Second Circuit held that this policy does not violate the

Constitution. Because this decision conflicts with decisions

from this and other federal courts, review is necessary to

secure and maintain uniformity of this Court’s decisions.

Moreover, review is necessary to provide much needed

- guidance to the lower courts that is capable of consistent

application in cases arising under the Establishment Clause.

1. Whether the Establishment Clause prohibits a public

school policy directed at schoolchildren participating in year-

end holiday celebrations that expressly utilizes Jewish and

Islamic religious symbols, but bans the similar use of Christian

religious symbols, thereby making denominational preferences

and showing hostility toward the Christian religion.

2. Whether the reasonable observer standard of the

endorsement test was changed in McCreary County v. ACLU,

125 S.Ct. 2722 (2005), such that young schoolchildren can no

longer satisfy the requirements of an “objective observer,” as

the Second Circuit held in this case.

3. Whether this Court should abandon the endorsement

test because it is unworkable and incapable of consistent

application, as this case demonstrates.

PARTIES TO THE PROCEEDING

The Petitioners are Andrea Skoros, individually and as

next friend of her minor children, Nicholas Tine and Christos

Tine (“Petitioners”).

The Respondents are the City of New York, Joel L.

Kline, in his official capacity as Chancellor, New York City

Department of Education, and Sonya Lupion, individually and

in her official capacity as Principal, Edith K. Bergtraum

School, New York City Department of Education

(“Respondents”).

ill

TABLE OF CONTENTS

ee ss bole ae eek ea kes

Pastees 00 Ge PROCOCGMNS . «we te ewes

8 a ee a ee a ee

A SS 23 os 0c or ic ie ee

I Ars a are eee ad ara ert a ar

I gen ce At eo hate en, ei ee yee

Reasons for Granting the Petition ...............

II.

THE CONSTITUTION FORBIDS

PRACTICES THAT SUGGEST A

DENOMINATIONAL PREFERENCE, SUCH

AS THE POLICY AT ISSUE ..........

NEW YORK CITY’S POLICY EXHIBITS

HOSTILITY TOWARD THE CHRISTIAN

RELIGION IN VIOLATION OF THE

ESTABLISHMENT CLAUSE ..........

li. BY NOT VIEWING THE “EFFECT” OF

NEW YORK CITY’S POLICY FROM THE

PERSPECTIVE OF YOUNG AND

IMPRESSIONABLE STUDENTS, THE

MAJORITY HAS CREATED DECISIONAL

CONFLICT ON AN IMPORTANT ISSUE

Cr PAL UAW a eek ces 10

IV. THE MAJORITY FAILED TO PROPERLY

CONSIDER THE PUBLIC SCHOOL

CONTEXT OF THIS CASE IN CONFLICT

WITH DECISIONS FROM THIS AND

OTHER PEDERAL COURTS .......... 16

I 2 ie re oe ahs Rein hs arama ak Gene 19

Appendix

Appendix A - Second Circuit Order

Denying Rehearing, Dated May 25, 2006 ....... la

Appendix B - Second Circuit Opinion

Dated February 2, 2006, as Amended

I eee ce gen ik eee ge 3a

Appendix C - District Court Judgment

preted FERTUNTY FO TM ow i ek ee ene 122a

Appendix D - District Court Memorandum

Decision and Order, Dated February 18, 2004 .. 124a

Appendix E - Picture of the Nativity......... 157a

Appendix F - Photograph of Menorah Display .. 158a

TABLE OF AUTHORITIES

Cases

Brandon v. Board of Educ.,

ce we Be fe A) 14

Capitol Square Rev. & Advisory Bd. v. Pinette,

Pa SE TREE 56-0 so i So od Ra eee ms 1]

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

Pe i CE ove eRe ena eee eee 8

Commack Self-Service Kosher Meats v. Weiss,

zon 50 Sid Ge Cir. DZ) . wc ee eee 6

County of Allegheny v. ACLU,

492 U.S. 573 (1989) ......... co ie Me

Edwards v. Aguillard,

We Ws POP EIPOED 6c cc cer betewers passim

Epperson v. Arkansas, |

et he I hot oe er eh be wk es oe 17

Fleischfresser v. Directors of Sch. Dist. 200,

Dae eer Ge: TOU on ee ec coc wars 13

Freiler v. Tangiapahoa Parish Bd. of Educ..,

bSS- F238 337 GO" Cer. 1999)... ee es 13

Iilinots ex rel. McCollum v. Board of Educ..,

SOE Mis BOOTED ove hws ch wee tedanes 17

Larson v. Valente,

ee Be, SCN a Sve wk ee eed eee eee 3

Lee v. Weisman,

See Ga ee CH ck eee ee 13, 15, 18

Lemon v. Kurtzman,

Cg aR 8 ) a reine paren passim

Lynch v. Donnelly,

ee eae, ee CE nce ose sa ae Oe eee 4,8,9, 10

McCreary County v. ACLU,

See eh, ee CO. W. é oka aoe oe cea 12, 14,15 -

Parents Ass’n of P.S. 16 v. Quinones,

803 F.2d 1235 (2d Cir. 1986) .......... 7, 14, 19

Peck v. Upshur County Bd. of Educ.,

E55 STI O.. TOR. 5s ov cee tv re sites 12

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

S30 U.S. ZIG GI 2.0 cece ce ees 4,10, 12, 13, 18

Shelton v. Tucker,

Se ae PT eh bite os we bee ee ee 17

Stone v. Graham,

ee a a hn ea ons See a 17

Van Orden v. Perry,

ioe Ou Se IE 0 ae be oo dees 11, 16

Wallace v. Jaffree,

Ue St, SET cb ewe pee Pe eee 13,15

Vil

Constitutional Provision

oF SE. SD 6 wo ce bee eae we passim

Statutes

ee Ses BOERS 20k 6h so ot ee J

Oe ee ee A en eo eee eee 3

Se et SESS bb ER oe ee dee eee l

oO Ui BU Si ie ke ak tree I

a Gls TUES 0 i486 ee eee l

Rule

POG: BR Pe bik oho eee ee 2

]

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the two-judge majority, App. 3a, appears

at 437 F.3d 1. The dissenting opinion, App. 83a, appears at

437 F.3d at 42. The unpublished district judge’s opinion

appears at App. 124a.

JURISDICTION

The opinion of the panel was issued on February 2, 2006.

A petition for panel rehearing and a petition for rehearing en

banc were denied on May 25, 2006. App. la-2a. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Establishment Clause of the United States

Constitution provides that “Congress shall make no law

respecting an establishment of religion.” U.S. Const. amend.

STATEMENT OF THE CASE

On February 25, 2003, Petitioners filed a First Amended

Complaint for declaratory and injunctive relief and nominal

damages pursuant to 42 U.S.C. § 1983, challenging the

constitutionality of the religious display policy of the New

York City Department of Education.' Pursuant to this policy,

Respondents permit and encourage the public display of the

' The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331

& 1343(a)(3).

menorah, a Jewish religious symbol, and the star and

crescent, a religious symbol of the Islamic faith, during

various religious holidays and year-end seasonal observances.

However, this policy prohibits the similar display of the

Christian créche or nativity at any time, including a simple

picture of the nativity displayed during the Christmas season.

See, e.g., App. 157a (picture of the nativity). As described

by the Second Circuit majority, the Respondents’ “policy

allows the menorah to be displayed as a symbol of the Jewish

holiday of Chanukah and the star and crescent to be displayed

as a symbol of the Islamic holiday of Ramadan, but it does

not allow a créche or nativity scene to be displayed as a

symbol of the Christian holiday of Christmas.” App. 4a.

This policy applies in all of the primary and secondary public

schools in the City of New York, which has the Nation’s

largest public school system.

Petitioners challenged the constitutionality of

Respondents’ policy under the First and Fourteenth

Amendments to the United States Constitution, claiming, inter

alia, that this policy and its application violate the

Establishment Clause.

The parties initially cross-moved for summary judgment,

and Petitioners moved in the alternative for a preliminary

injunction. On December 4, 2003, the parties subsequently

appeared before the district judge and agreed to withdraw

their motions for summary judgment and to present the matter

on a stipulated record 1o the court for decision as a bench

trial. The district judge ordered a consolidation of the

preliminary injunction hearing with the bench trial pursuant

to Rule 65 of the Federal Rules of Civil Procedure, and on

December 16, 2003, the matter was taken on submission. On

February 18, 2004, the district court ruled in favor of

Respondents on all claims. Petitioners appealed.’

On February 2, 2006, a divided panel of the Secord

Circuit affirmed. The dissenting circuit judge issued a

lengthy opinion on the Establishment Clause issue, arguing

that the majority “effectively turnfed] a blind eye” to

controlling precedent and concluding that the challenged

policy “fails under the endorsement prong of the Lemon test,

both on its face and as applied.” App. 83a. (dissent).

Petitioners timely filed a petition for panel rehearing and

a petition for rehearing en banc on the Establishment Clause

issue. On May 25, 2006, the petitions were denied.

REASONS FOR GRANTING THE PETITION

I. THE CONSTITUTION FORBIDS PRACTICES

THAT SUGGEST A DENOMINATIONAL

PREFERENCE, SUCH AS THE POLICY AT ISSUE.

“The clearest command of the Establishment Clause is

that one religious denomination cannot be officially preferred

over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).

Thus, this Court has “expressly required ‘strict scrutiny’ of

practices suggesting ‘a denominational preference.’” County

of Allegheny v. ACLU, 492 U.S. 573, 608-09 (1989) (citation

omitted) (emphasis added); see also Edwards v. Aguillard,

482 U.S. 578, 593 (1987) (showing a “preference” for

particular religious beliefs violates the Establishment Clause).

> The Second Circuit had jurisdiction pursuant to 28 U.S.C.

§ 1291.

This Court has made clear that when evaluating claims

under the Establishment Clause “the Constitution also requires

that we keep in mind the myriad, subtle ways in which

Establishment Clause values can be eroded and guard against

other different, yet equally important, constitutional injuries.”

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 314 (2000)

(internal citation omitted). One is plainly the passage by the

government of a policy that creates divisiveness along

religious lines in the special context of public elementary and

secondary schools. See id.

Because Respondents’ policy suggests a denominational

preference, application of the strict scrutiny standard in light

of the special context of public elementary and secondary

schools compels a finding of unconstitutionality. See

Edwards, 482 U.S. at 583-84 (applying the Establishment

Clause with special sensitivity in the public-school context).

The policy at issue states, in relevant part, “The display

of secular holiday symbol decorations is permitted. Such

symbols include, but are not limited to, Christmas trees,

Menorahs, and the Star and Crescent.” App. 9a. (emphasis

in the original). As stipulated to by Respondents, this policy

does not permit the public display of any nativity scene or

créche by school officials or as part of a school-authorized

holiday or seasonal display in the New York City public

schools.’ It prohibits the display of a simple picture of the

* See Lynch v. Donnelly, 465 U.S. 668, 680 & 686 (1984) (“The

créche in the display depicts the historical origins of this traditional

event [i.e., Christmas] long recognized as a National Holiday” and

“{t]o forbid the use of this one passive symbol—the créche—at the

very time people are taking note of the season with Christmas

hymns and carols in public schools and other public places, and

while the Congress and Legislatures open sessions with prayers by

nativity. See, e.g., App. 157a (picture of the nativity). And

it even prohibits students from drawing or coloring pictures

of the nativity during classroom instruction, even though

students receive books with the menorah for that purpose.

App. 15a.

Yet, the policy expressly permits the public display of the

menorah and the star and crescent, religious symbols of the

Jewish and Islamic faiths respectively. This includes a

freestanding, three-dimensional menorah prominently

displayed in the main office of a public school.‘

paid chaplains would be a stilted over-reaction contrary to our

history and to our holdings”).

* Pursuant to this policy, Respondents displayed in the main

administrative office of a public school attended by Petitioner

Skoros’s child a three-dimensional menorah standing next to a tree.

See App. 158a (photograph of menorah display). The menorah,

which included a Star of David, was the prominent element in this

display, and there was no explanatory plaque. See County of

Allegheny, 492 U.S. at 617-619 (finding that the tree was the

“predominant element in the city’s display” and noting that the

city’s display contained an “explanatory plaque,” which was a

significant factor in upholding the constitutionality of the display).

Combine these facts with the fact that this display was made

pursuant to an official policy that prohibits the similar display of

Christian religious symbols, and it is clear that this display does not

withstand constitutional scrutiny, see id. at 620 n.69 (noting that the

combined display of a Christmas tree and a menorah may not be

constitutional wherever it is located on government property; “[fJor

example, when located in a public school, such a display might

raise additional constitutional considerations”) (Blackmun, J.),

further demonstrating the inability of the endorsement test to

achieve consistent results. See section Il, infra.

Respondents do not permit the display of the nativity

scene or créche in any form during the various seasonal

displays, including Christmas displays, because they claim

that a nativity scene or créche is a “purely religious” symbol.

App. 22a.__Respondents permit the display of the menorah

and the star and crescent as part of school-approved displays

because they claim that these are “secular” symbols, as stated

in the policy.

As the majority properly points out, Respondents’ policy

“mischaracterizes” the menorah and star and crescent as

secular symbols.” App. 8la-82a. Nonetheless, the majority

simply excuses Respondents for this canard, referring to it as

an “interpretive error.”"° App. 41a. As a result,

Respondents’ discriminatory policy—which is applied in our

Nation’s largest public school system—now has the backing

of a federal appellate court.

> The dissent properly notes that this aspect of the policy is itself

unconstitutional because it “risks excessive entanglement inasmuch

as it adopts an official State position on a point of religious doctrine

by defining a menorah and star and crescent as secular symbols,

and a ‘créche’ as ‘purely religious.”” App. 84a; see also App. 117a

(dissent) (citing Commack Self-Service Kosher Meats v. Weiss, 294

F.3d 415, 423, 427 (2d Cir. 2002) (holding that the State’s defining

“kosher” as “prepared in accordance with orthodox Hebrew

religious requirements” violated the First Amendment because it

suggested a “preference for the views of one branch of Judaism”)).

The violation of the third prong of the Lemon test (excessive

entanglement) is grounds for granting this petition.

° The Catholic League pointed out this “interpretive error” to

Respondents on numerous occasions prior to the filing of this

lawsuit. See App. 10a-12a. Petitioners further demonstrated

Respondents’ prevarication throughout the course of this litigation,

both in the legal briefing and in expert testimony—to no avail.

Given the majority’s recognition that the menorah and the

star and crescent are indeed religious symbols, the majority’s

decision approves, in essence, the following public school

policy:

The display of religious holiday symbol decorations

for Jews and Muslims is permitted. Such symbols

include Menorahs and the Star and Crescent. The

display of religious holiday symbol decorations for

Christians is not permitted. Only the display of

secular holiday symbol decorations is permitted for

Christian holidays. Such symbols include Christmas

trees.

Thus, this “hypothetical” policy, according to the

majority, does not violate the Establishment Clause.

Remarkably, the majority reached its decision in this case

despite the fact that the Second Circuit had previously

recognized that “[t]he rationale behind the requirement of

neutrality is, in part, that governmental actions giving even

the appearance of favoring one religion over another are

likely to cause divisiveness and disrespect for government by

those who hold contrary beliefs.” Parents Ass’n of P.S. 16

v. Quinones, 803 F.2d 1235, 1240 (2d Cir. 1986).

In the final analysis, New York City’s public school

policy crosses the line of constitutionality by drawing lines

along religious grounds and suggesting a denominational

preference for Jewish and Islamic religious symbols while

disfavoring Christian symbols. This policy does not withstand

strict scrutiny under the Establishment Clause.

Il. NEW YORK CITY’S POLICY EXHIBITS

HOSTILITY TOWARD THE CHRISTIAN

RELIGION IN VIOLATION OF THE

ESTABLISHMENT CLAUSE.

Petitioners do not seek the removal of religious symbols

from the New York City public schools. See App. 4a-5a.

Such intolerance toward religion is not required by the

Constitution. Rather, Petitioners merely want the neutrality

and accommodation that the Constitution demands.

In Lynch, this Court clearly articulated the principle of

law applicable here:

It has never been thought either possible or desirable

to enforce a regime of total separation. Nor does the

Constitution require complete separation of church

and state; it affirmatively mandates accommodation,

not merely tolerance of all religions, and forbids

hostility toward any. Anything less would require the

callous indifference we have said was never intended

by the Establishment Clause. Indeed, we have

observed, such hostility would bring us into war with

our national tradition as embodied in the First

Amendment’s guaranty of the free exercise of

religion.

Lynch, 465 U.S. at 673 (internal punctuation, quotations, and

citations omitted) (emphasis added); see also Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

532 (1993) (“In our Establishment Clause cases we have often

stated the principle that the First Amendment forbids an

official purpose to disapprove of a particular religion or of

religion in general.”) (emphasis added).

With no hint of irony, the majority concluded that New

York City’s discriminatory policy achieved a_ valid

“pedagogical endeavor” by “us{ing] children’s natural

excitement about various year-end holidays to teach the lesson

of pluralism by showing children the rich cultural diversity of

the city in which they live and by encouraging them to show

tolerance and respect for traditions other than their own.”

App. 35a (emphasis added). Apparently, New York City’s

brand of “pluralism” and “tolerance” excludes Christianity.

Moreover, the apparent “pedagogical endeavor” with regard

to the Christian holiday of Christmas is to demonstrate to the

impressionable, young students in the New York City public

schools that this “tradition” has nothing to with the nativity.

In sum, New York City’s stated purpose for this policy—“to

foster mutual understanding and respect for the many beliefs

and customs stemming from our community’s religious,

racial, ethnic and cultural heritage”—is a sham. See

Edwards, 482 U.S. at 587 (finding that the government’s

purpose was a sham because the policy did _ not

promote—indeed, it undermined—the alleged educational

goal).

As previously noted, our Constitution “affirmatively

mandates accommodation, not merely tolerance of all

religions, and forbids hostility toward any.” Lynch, 465 U.S.

at 673 (emphasis added). This case will afford this Court the

opportunity to breathe life into this fundamental principle of

constitutional] iaw that is largely ignored by the lower federal

couris, as this case demonstrates. Indeed, New York City

should not be permitted to discriminate aga:nst the Christian

religion in its public schools under the guise of “tolerance”

and “pluralism.” There is no affirm <:ve action prong of the

Establishment Clause—our Constitutic.. demands tolerance of

all religions, including Christianity. The challenged policy is

plainly unconstitutional.

I. BY NOT VIEWING THE “EFFECT” OF NEW

YORK CITY’S POLICY FROM THE

PERSPECTIVE OF YOUNG AND

IMPRESSIONABLE STUDENTS, THE

MAJORITY HAS CREATED DECISIONAL

CONFLICT ON AN IMPORTANT ISSUE OF

FEDERAL LAW.

The “effect” analysis at issue here is the application of the

second prong of the test articulated in Lemon v. Kurtzman,

403 U.S. 602 (1971). ‘See Lynch, 465 U.S. at 691-92

(O’Connor, J., concurring); see also Santa Fe Indep. Sch.

Dist., 530 U.S. at 307 n.21 (“[T]he Establishment Clause

forbids a State to hide behind the application of formally

neutral criteria and remain studiously oblivious to the effects

of its actions.”) (internal quotations and citations omitted).

As this Court explained, “Since Lynch, the Court has made

clear that, when evaluating the effect of government conduct

under the Establishment Clause, we must ascertain whether

‘the challenged governmental action is sufficiently likely to be

perceived by adherents of the controlling denominations as an

endorsement, and by the nonadherents as a disapproval, of

their individual religious choices.’” County of Allegheny, 492

U.S. at 597 (citation omitted). In its present form, this

“endorsement” test, as it is also known, precludes

government from conveying or attempting to convey a

message that a particular religion is favored or preferred, and

it prohibits making adherence to a particular religion relevant

in some way to a person’s standing in the community. See td.

at 593-94.

Under the endorsement test, the question presented by this

case is whether a reasonable observer would find that the

policy and its application in the public elementary and

secondary schools of New York City have the effect of

endorsing a particular religion or religions or disfavoring a

certain religion or religions. See County of Allegheny, 492

U.S. at 593-94. The identification of the reasonable observer

and the amount of information attributable to this “objective”

person is often dispositive, as the conflict between the

majority and dissenting opinions in this case demonstrates.

More fundamentally, this conflict demonstrates that the

reasonable observer standard of the endorsement test is

incapable of consistent application, and is, therefore, no

standard whatsoever. See, e.g., Van Orden v. Perry, 125

S.Ct. 2854, 2867 (2005) (criticizing the reasonable observer

standard and noting that “[t]he unintelligibility of this Court’s

precedent raises the further concern that, either in appearance

or in fact, adjudication of Establishment Clause challenges

turns on judicial predilections”) (Thomas, J., concurring);

County of Allegheny, 492 U.S. at 669 (“[T]he endorsement

test is flawed in its fundamentals and unworkable in practice.

The uncritical adoption of this standard is every bit as

troubling as the bizarre result it produces in the cases before

us.”) (Kennedy, J., concurring in judgment in part and

dissenting in part); see also Capitol Square Rev. & Advisory

Bd. v. Pinette, 515 U.S. 753, 768 n.3 (1995) (rejecting the

application of the endorsement test and stating, “[T]he

endorsement test does not supply an appropriate standard for

the inquiry before us. It supplies no standard

whatsoever... . And, of course, even when one achieves

agreement upon [who the hypothetical beholder is], it will be

unrealistic to expect different judges (or should it be juries?)

to reach consistent answers as to what any beholder, the

average beholder, or the ultrareasonable beholder (as the case

may be) would think. It is irresponsible to make the Nation’s

legislators walk this minefield.”) (Scalia, J., plurality opinion

joined by Chief Justice Rehnquist and Justices Kennedy and

Thomas).

As controlling precedent would seem to dictate, the

reasonable observers in this case should be elementary school

students (i.e., young and impressionab!e children) who are

subjected to the inherently coercive atmosphere found in

public elementary schools, see Edwards, 482 U.S. at 583-85,

and their parents. See App. 98a-117a (dissent). As the

majority noted, “[T]he schoolchildren for whose benefit these

displays are created have no option but to view them and,

sometimes, to participate in the craft projects that are integral

to many of the displays.” App. 62a.

However, the majority applied a fundamentally different

reasonable observer standard by analyzing the purpose and

effect of the challenged policy from the perspective of a

disinterested adult. App. 44a-45a; see also 107a (dissent).

The majority stated, “[WJe do not think the intended recipient

of a display necessarily defines the objective observer.” App.

46a. As such, the majority held that because “young

schoolchildren cannot satisfy the requirements of an objective

observer recently specified by the Supreme Court in

McCreary, we conclude that such children cannot provide the

model of the objective observer for purposes of Lemon

analysis in this case.” App. 46a-47a (emphasis added). This

conclusion, which, according to the majority is based on this

Court’s decision in McCreary County v. ACLU, 125 S.Ct.

2722 (2005), fundamentally conflicts with decisions from this

Court and other federal courts of appeals in cases addressing

Establishment Clause challenges arising in the public school

context.’ See Santa Fe Indep. Sch. Dist., 530 U.S. at 308

” See, e.g., Peck v. Upshur County Bd. of Educ., 155 F.3d 274,

287 n* (4" Cir. 1998) (upholding constitutionality of school board

policy permitting nonstudents to disseminate Bibles and other

religious materials in public schools during school hours, except as

(“[A]n objective Santa Fe High School student will

unquestionably perceive the inevitable pregame prayer as

stamped with her school’s seal of approval.”) (emphasis

added); id. (“The text and history of this policy, moreover,

reinforce our objective student’s perception that the prayer is,

in actuality, encouraged by the school.”) (emphasis added);

Lee v. Weisman, 505 U.S. 577, 593 (1992) (“We do not

address whether that choice [participating in the prayer or

protesting] is acceptable if the affected citizens are mature

adults, but we think the State may not, consistent with the

Establishment Clause, place primary and secondary school

children in this position.”) (emphasis added); Edwards, 482

U.S. at 584, n.5 (distinguishing cases and holding that the

potential for undue influence as between college students and

grade school pupils is a “distinction [that] warrants a

difference in constitutional results”) (internal quotation marks

and citation omitted); see also Wallace v. Jaffree, 472 U.S.

38, 66, n.9 (1985) (Powell, J., concurring) (“If it were

necessary to reach the ‘effects’ prong of Lemon, we would be

concerned primarily with the effect on the minds and feelings

of immature pupils .”) (emphasis added); id. at 81 (O’Connor,

J., concurring) (“The Court’s decisions have recognized a

distinction when government-sponsored religious exercises are

to elementary schools due to the “impressionability of young

elementary-age children”); Freiler v. Tangiapahoa Parish Bd. of

Educ., 185 F.3d 337, 346 (5" Cir. 1999) (“In assessing the primary

effect of the contested disclaimer, we focus on the message

conveyed by the disclaimer to the students who are its intended

audience.”) (emphasis added); Fleischfresser v. Directors of Sch.

Dist. 200, 15 F.3d 680, 688-89 (7" Cir. 1994) (deciding

Establishment Clause challenge to the school district’s supplemental

reading program and stating, “We are concerned, of course, with

the effect on the elementary school students of using [the challenged

reading series]”) (emphasis added).

directed at impressionable children who are required to attend

school, for then government endorsement is much more likely

to result in coerced religious beliefs.”) (emphasis added).

In fact, the majority’s decision conflicts with decisions

from its own Circuit.* This fact is further evidence that the

majority viewed the McCreary decision as creating a sea

change in the reasonable observer standard for Establishment

Clause cases. And it further demonstrates the inconsistent

application of this Establishment Clause test.

As noted by the dissent, “In failing to examine the

displays and celebrations from the perspective of the students,

the majority pays only lip service, and indeed, effectively

turns a blind eye, to the significant impact of the students’

impressionability and youth.” App. 83a-84a (dissent).

® Prior to the decision below, the Second Circuit had recognized

that the “effects” of a challenged policy directed at public

elementary and secondary school students must be viewed from the

perspective of the impressionable young students. See Quinones,

803 F.2d at 1240-41 (stating that “[t}he concern for neutrality is

nowhere more important than in education programs, for the

government’s activities in this area can have a magnified impact on

impressionable young minds” and analyzing the “effect” of the

City’s plan “on the minds of the youngsters attending P.S. 16”)

(citation omitted) (emphasis added); Brandon v. Board of Educ..,

635 F.2d 971, 978 (2d Cir. 1980) (“Our nation’s elementary and

secondary schools play a unique role in transmitting basic and

fundamental values to our youth. To an impressionable student,

even the mere appearance of secular involvement in religious

activities might indicate that the state has placed its imprimatur on

a particular religious creed. This symbolic inference is too

dangerous to permit.”) (emphasis added).

As the dissent points out, the majority’s decision

“approves a policy directed at the participation of public

school children in a year-end holiday celebration that utilizes

religious symbols of certain religions, but bans the religious

symbol of another. ... [T]he policy of the New York City

Department of Education . . . to arrange for the children to

celebrate the holiday season in schools through the use of

displays and activities that include religious symbols of the

Jewish holiday of Chanukah and the Muslim commemoration

of Ramadan, but starkly exclude any religious symbols of the

Christian holiday of Christmas, fails under the endorsement

prong of the Lemon test, both on its face and as applied.”

App. 83a (dissent).

In the final analysis, the majority’s decision materially

alters the reasonable observer standard for Establishment

Clause cases affecting public school students. Changing the

“observer” from a young and impressionable student to a

disinterested adult substantially alters the outcome of the case.

See, e.g., Edwards, 482 U.S. at 584, n.5 (noting that a

difference in the intended audience as between college

students and secondary school students “warrants a difference

in constitutional results”) (internal quotation marks and

citation omitted). If the Second Circuit is correct, the

McCreary decision could potentially alter the precedential

effect of cases such as Edwards v. Aguillard, Lee v. Weisman,

and Wallace v. Jaffree. Moreover, the vastly different

conclusions reached by the majority and the dissent

demonstrate the inability of the endorsement test to achieve

consistent results. Thus, review of this case is necessary to

resolve the decisional conflict and to provide much needed

guidance to the lower federal courts regarding the application

of the Establishment Clause, particularly in the context of

public elementary and secondary schools.

IV. THE MAJORITY FAILED TO PROPERLY

CONSIDER THE PUBLIC SCHOOL CONTEXT

OF THIS CASE IN CONFLICT WITH

DECISIONS FROM THIS AND OTHER

FEDERAL COURTS.

The “context” of the challenged governmental action is a

material factor in the constitutional analysis under the

Establishment Clause. See, e.g., Van Orden, 125 S.Ct. at

2863-64 (comparing the display of religious messages or

symbols in the context of public elementary and secondary

schools with other non-school contexts). The majority gave

little weight to this important and often determinative aspect

of the constitutional analysis, contrary to decisions from this

and other federal courts.

The majority stated, “[WJe have no reason to conclude

that the Supreme Court’s decision in Allegheny about the

pluralistic message conveyed by the inclusion of a menorah

(or a star and crescent) in a multicultural holiday display

applies with any lesser force when such a display appears in

a public school rather than a public park.” App. 52a. Thus,

the majority equated the special context of this case with the

very dissimilar context of a public park. This is contrary to

the great weight of authority, including Justice Blackmun’s

opinion in the Allegheny case referenced by the majority. See

County of Allegheny, 492 U.S. at 620 n.69 (“This is not to

say that the combined display of a Christmas tree and a

menorah is constitutional wherever it may be located on

government property. For example, when located in a public

school, such a display might raise additional constitutional

considerations.”) (Blackmun, J.) (citing Edwards, 482 U.S.

at 583-84 (holding that the Establishment Clause must be

applied with special sensitivity in the public-school context));

Van Orden, 125 S.Ct. at 2856 (holding that the Ten

Commandments display did not violate the Establishment

Clause and distinguishing Stone v. Graham, 449 U.S. 39

(1980), which struck down the display of the Ten

Commandments in public schools, stating, “neither Stone

itself nor subsequent opinions have indicated that Stone’s

holding would extend beyond the context of public

schools . . . where the text confronted elementary school

students every day”); id. at 2871 (Breyer, J., concurring)

(upholding Ten Commandments display and noting that the

display presented a much different context than one “on the

grounds of a public school, where, given the impressionability

of the young, government must exercise particular care in

separating church and state”).

When evaluating claims under the Establishment Clause,

context is critical and often dispositive. As stated by this

Court, “[T]he government’s use of religious symbolism is

unconstitutional if it has the effect of endorsing religious

beliefs, and the effect of the government’s use of religious

symbolism depends upon its context.” County of Allegheny,

492 U.S. at 597 (emphasis added). The context for this case

is New York City public elementary and secondary schools,

not Central Park.

As emphasized by this Court, “‘The vigilant protection of

constitutional freedoms is nowhere more vital than in the

community of American schools.’” Epperson vy. Arkansas,

393 U.S. 97, 104 (1968) (quoting Shelton v. Tucker, 364

U.S. 479, 487 (1960)). “‘In no activity of the State is it more

vital to keep out divisive forces than in its schools.’”

Edwards, 482 U.S. at 584 (quoting //linois ex rel. McCollum

v. Board of Educ., 333 U.S. 203, 231 (1948) (Frankfurter,

J.)).

This Court has recognized that public schools present a

special context. In Edwards, for example, this Court stated,

“In this case, the Court must determine whether the

Establishment Clause was violated in the special context of the

public elementary and secondary school syster:.” Edwards,

482 U.S. at 583 (emphasis added). This Court noted that it

“has been particularly vigilant in monitoring compliance with

the Establishment Clause in elementary and secondary

schools,” id. at 583-84, and when it employed the three-

pronged Lemon test, it did so “mindful of the particular

concerns that arise in [this] context,” id. at 585.

In Lee, this Court stated, “What to most believers may

seem nothing more than a reasonable request that the

nonbeliever respect their religious practices, in a school

context may appear to the nonbeliever or dissenter to be an

attempt to employ the machinery of the State to enforces a

religious orthodoxy.” Lee, 505 U.S. at 592 (emphasis

added); see also Santa Fe Indep. Sch. Dist., 530 U.S. at 311

(holding that the election mechanism of the school policy was

itself unconstitutional and stating that “[t}he mechanism

encourages divisiveness along religious lines in a public

school setting, a result at odds with the Establishment

Clause”) (emphasis added).

Throughout its Establishment Clause decisions, this Court

carefully and deliberately considers the “special context” of

public elementary and secondary schools because “|s]tudents

in such institutions are impressionable and their attendance is

involuntary. The 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.” Edwards,

482 U.S. at 584. See also Lee, 505 U.S. at $92 (“[T]here are

heightened concerns with protecting freedom of conscience

from subtle coercive pressure in the elementary and secondary

public schools.”).

In fact, prior to the decision below, the Second Circuit

had recognized that the heightened scrutiny applied in cases

involving public schools was related to the protection

provided impressionable students. In Quinones, the Second

Circuit stated, “The concern for neutrality is nowhere more

important than in education programs, for the government’s

activities in this area can have a magnified impact on

impressionable yeung minds, providing a crucial symbolic

link between government and religion, thereby enlisting—ar

least in the eyes of the impressionable youngsters—the powers

of government to the support of the religious denomination.”

Quinones, 803 F.2d at 1240 (internal quotations and citations

omitted) (emphasis added).

In summary, the special context of this case raises

heightened concerns under the Establishment Clause that the

majority disregarded, contrary to the decisions of this and

other federal courts.

CONCLUSION

Because the majority’s decision conflicts with decisions

from this Court and other federal courts of appeals regarding

the application of the Establishment Clause in the context of

public elementary and secondary schools, consideration by

this Court is therefore necessary to secure and maintain

uniformity of decisions on an important issue of federal law.

Moreover, as this and many other cases have demonstrated,

the Establishment Clause jurisprudence of this Court is in

need of substantial revision. This Court should grant review

of this case and take the opportunity to abandon the

endorsement test in favor of a workable standard that Is

capable of consistent application.

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

ROBERT JOSEPH MUISE

Counsel of Record

Thomas More Law Center

24 Frank Lloyd Wright Drive

P.O. Box 393

Ann Arbor, Michigan 48106

(734) 827-2001

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 04-1229-cv

[Filed May 25, 2006]

SKOROS

CITY OF NEW YORK

a A i

On Appeal from EDNY (Brooklyn)

Case No. 02-cv-6439

Honorable Charles Sifton

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the Thurgood Marshall United

States Courthouse, Foley Square, in the City of New York,

on the 25" day of May two thousand six.

Skoros v. Cityof New York 04-1229-cv

A petition for panel rehearing and a petition for rehearing en

banc having been filed herein by the appeliants Andrea

Skoros, et al. Upon consideration by the panel that decided

the appeal, it is Ordered that said petition for rehearing is

DENIED.

It is further noted that the petition for rehearing en banc has

been transmitted to thejudges for the court in regular active

service and to any other judge that heard the appeal and that

no such judge has requested that a vote be taken thereon.

For the Court,

Roseann B. MacKechnie, Clerk

By: _/s/

Motion Staff Attorney

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 04-1229-cv

[Filed February 2, 2006]

As Amended, March 27, 2006

ANDREA SKOROS, individually, and )

next friend of NICHOLAS TINE, a minor )

and CHRISTOS TINE, a minor, )

Plaintiffs-Appellants, )

)

CITY OF NEW YORK, JOEL L. KLEIN, )

in his official capacity as Chancellor, )

New York City Department of Education, )

and SONYA LUPION, individually, and in )

her official capacity as Principal, Edith K. )

Bergtraum School, New York City )

Department of Education,

Defendants-Appellees.

eee Nee ee”

Before: FEINBERG, STRAUB, and RAGGI, Circuit Judges.

Appeal from a judgment of the United States District

Court for the Eastern District of New York (Charles P.

Sifton, Judge) in favor of defendants after a bench trial on the

plaintiffs’ constitutional challenges to New York City’s

holiday display policy for its public schools.

OPINION

REENA RAGGI, Circuit Judge:

No holiday season is complete, at least for the courts,

without one or more First Amendment challenges to public

holiday displays. At issue in this case is the holiday display

policy promulgated by the Department of Education (“DOE”)

of the defendant City of New York (“City” or “New York”)

for the City’s public elementary and secondary schools. That

policy allows the menorah to be displayed as a symbol of the

Jewish holiday of Chanukah and the star and crescent to be

displayed as a symbol of the Islamic holiday of Ramadan, but

it does not allow a créche or nativity scene to be displayed as

a symbol of the Christian holiday of Christmas. Plaintiff

Andrea Skoros sues pursuant to 42 U.S.C. § 1983 on behalf

of herself and her two minor children asserting that the policy

violates her children’s rights under the Establishment and

Free Exercise Clauses of the First Amendment, as well as her

parental right to control her children’s religious upbringing

and education as secured by the First and Fourteenth

Amendments. See U.S. Const. amends. I, XIV. While

Skoros’s complaint seeks to enjoin the operation of the DOE

holiday display policy, the record suggests that her goal ts

not so much to preclude defendants’ use of the menorah or the

star and crescent as it is to compel inclusion of the créche in

public school holiday displays.’

' To facilitate our discussion of Skoros’s appeal, we briefly

describe the three symbols at issue:

1. The menorah is a nine-branch candelabrum

associated with Chanukah (sometimes spelled Hanukkah or

Hanukah), a Jewish holiday, usually falling in December,

that commemorates the Maccabees’ triumph over the

Seleucid Empire and the rededication of the Temple of

Jerusalem. The menorah is used to celebrate a miracle

connected to the Temple rededication whereby one day’s

supply of oil miraculously lasted for eight days. See County

of Allegheny v. ACLU, 492 U.S. 573, 583 (1989) (plurality

opinion) (Blackmun, J.,) (collecting sources). On each of

the eight nights of Chanukah, the Jewish community lights

a new branch of the menorah (with a candle, the

shammash, held in a ninth branch) “to celebrate the miracle

of a continuously burning light.” Kaplan v. City of

Burlington, 891 F.2d 1024, 1026 (2d Cir. 1989).

2. The star _and_ crescent is a symbol of Islam

sometimes associated with the sighting of the new moon at

the start and finish of the holy month of Ramadan, a time

of concentrated fasting, worship, and acts of charity. See

Gordon D. Newby, A Concise Encyclopedia of Isiam.

“Hilal,” 81 (2002); see also The Oxford Dictionary of

Islam, “Hilal,” 113 (John L. Esposito ed., 2003) (noting

sighting of cres.ontmoon as important for determination of

when certain Islamic religious practices must take place);

Oxford Dictionary of World Religions, “Crescentmoon,”

246 (John Bowker ed., 1997) (observing that Quran

recognizes the waning of the moon “as a sign of God’s

unchanging purpose and control”). Ramadan takes place

during the ninth lunar month of the Muslim year. In 2001-

2002, the years here at issue, Ramadan fell during

November and December.

After a bench trial, Judge Charles P. Sifton of the United

States District Court for the Eastern District of New York

rejected plaintiffs’ constitutional claims on the merits and

entered judgment in favor of the City, as well as co-

defendants Joel L. Klein, sued in his official capacity as DOE

Chancellor, and Sonya Lupion, sued individually and in her

official capacity as the principal of the City’s Edith K.

Bergtraum elementary school (“P.S. 165”). See Skoros v.

City of New York, No. CV-02-6439, 2004 U.S. Dist. LEXIS

2234 (E.D.N.Y. Feb. 18, 2004). Skoros now appeals that

judgment, and the State of Alabama appears as amicus curiae

to support her challenge. In urging affirmance, defendants

have the support of the Anti-Defamation League as amicus

curiae.

For the reasons stated in this cpinion, we affirm the

judgment of the district court. We emphasize at the outset that

we do not decide on this appeal whether, consistent with the

First Amendment, the DOE could ever include a créche in a

public school winter holiday display. We decide only that the

3. The créche or nativity scene is a visual depiction of

Christ’s birth in Bethlehem as recounted in the gospels. See

Luke 2:1-21; Matthew 2:1-1i. Generally, a créche depicts

Mary, Joseph, and the infant Jesus within a stable or cave

setting, frequently surrounded by adoring shepherds, magi,

angels, and animals. See Webster's Third New International

Dictionary (Unabridged) 532 (1993). The Christmas créche

tradition is often attributed to St. Francis of Assisi. See

Lynch v. Donnelly, 465 U.S. 668, 724 (1984) (Brennan, J.,

dissenting) (collecting sources). A créche installed each

December in the Metropolitan Museum of Art’s medieval

sculpture hall is among New York City’s noteworthy

holiday traditions. See Linn Howard, et al., The Angel

Tree: A Christmas Celebration (1994).

defendants do not violate the Constitution when, in pursuing

the secular goal of promoting respect for diverse cultural

traditions, they do not include a créche in such displays,

representing Christmas through a variety of that holiday’s

well recognized secular symbols, even though Chanukah is

represented by the menorah and Ramadan by the star and

crescent.

I. Background

A. Plaintiff Skoros and Her Children

Plaintiff Andrea Skoros is a Roman Catholic raising her

two minor sons, Nicholas and Christos Tine, in that faith.

During the 2001-2002 school year, Nicholas was a third-grade

student at New York City’s P.S. 165. In the 2002-2003

school year, Nicholas attended fourth grade at P.S. 169,

while his brother Christos attended second grade at P.S. 184.

The boys remained in these public schools through the trial of

this case.

B. The New York City Public School System

New York City has the largest public schoo] system in the

country, with over one million students enrolled in its 1200

public schools and programs. This student population, like the

population of the City itself, represents virtually every race,

nationality, ethnicity, and religious and cultural tradition in

the world. City public school students speak 140 different

primary languages, including Spanish, Chinese, Russian,

Urdu, Bengalt, Haitian-Creole, Arabic, Korean, Albanian,

French, Punjabi, and Polish. More than 125,000 students are

enrolled in programs to learn English.

C. The Challenged Holiday Display Policy

For some time, City educators have recognized the

obvious: young schoolchildren are often excited toward the

end of the year about approaching holidays. School officials

decided that this excitement could be channeled constructively

by using the variety of year-end holidays - including

Christmas, Chanukah, Ramadan, and Kwanzaa’ - to teach

children about and to encourage respect for the different

cultures in their community. Because some of the identified

holidays have religious origins, questions arose as to what

holiday symbols could appropriately be displayed in the public

schools without appearing to endorse religion in violation of

the First Amendment. To provide guidance, in 1997, the

DOE Office of Legal Services, working in conjunction with

the City Office of Corporation Counsel, developed a holiday

display policy for the public schools.

The iteration of this policy here at issue is that

memorialized in virtually identical memoranda dated

November 28, 2001, and November 18, 2002, from the

Chancellor’s general counsel to all City public school

superintendents and principals (hereafter referred to

2 Kwanzaa, which, in Swahili, means “first fruits of the

harvest,” is a nonreligious holiday created in 1966 to celebrate

African-American family and social values. On each of Kwanzaa’s

seven days, from December 26 to January 1, families gather to

exchange gifts and to discuss particular principles: unity, self-

determination, collective responsibility, operative economics,

purpose, creativity, and faith. On December 31, communities join

together for a “Karamu,” or feast. See 7 New Encyclopedia

Britannica, “Kwanzaa,” 54-55 (15th ed. 1998); Eric V. Copage, A

World of Celebration; New York City: Kwanzaa, N.Y. Times, Nov.

8, 1998, § 6, at 10.

collectively as the “Holiday Display Memo”).* rhe first

paragraph of the Holiday Display Memo states the purpose of

the DOE policy:

New York City is a diverse multi-cultural community.

It is our responsibility as educators to foster mutual

understanding and respect for the many beliefs and

customs stemming from our community’s religious,

racial, ethnic and cultural heritage. In furtherance of

this goal, we must be cognizant of and sensitive to the

special significance of seasonal observances and

religious holidays. At the same time, we must be

mindful that the Constitution prohibits a school system

from endorsing or promoting a particular religion or

belief system.

Holiday Display Memo at 1. The memorandum proceeds to

outline the “guidelines [that] should be followed with respect

to the display of cultural/holiday symbols”:

1. The display of secular holiday symbol decorations

is permitted. Such symbols include, but are not

limited to, Christmas trees, Menorahs, and the

Star and Crescent.

2. Holiday displays shall not appear to promote or

celebrate any single religion or _ holiday.

Therefore, any symbol or decoration which may

The Holiday Display Memo deals only with seasonal

displays, not with classroom instruction or religious expression by

students in the school. The latter issue is the subject of a separate

DOE Regulation, which is part of the record but not at issue in this

case.

10a

be used must be displayed simultaneously with

other symbols or decorations reflecting different

beliefs or customs.

3. All holiday displays should be temporary in

nature.

4. The primary purpose of all displays shall be to

promote the goal of fostering understanding and

respect for the rights of all individuals regarding

their beliefs, values and customs.

Id. (emphasis in original).

D. The Catholic League’s Challenge to the Holiday

Display Policy

Soon after the November 2001 dissemination of the

Holiday Display Memo, the Catholic League for Religious

and Civil Rights unsuccessfully petitioned the DOE to include

the créche in its list of approved symbols for holiday display

in the public schools. Skoros submits that she was aware of

and in agreement with the Catholic League’s efforts and,

therefore, did not independently pursue the matter with DOE

officials.

According to a December 4, 2001 letter from Catholic

League President William A. Donohue to then-Chancellor

Harold O. Levy, the Chancellor initially denied the League’s

request to permit the display of a créche in public schools

because he understood the Supreme Court to have

“‘previously refused to permit erection of a nativity scene on

public property.’” Donohue Letter to Levy, Dec. 4, 2001, at

2 (purporting to quote Levy). Donohue submitted that this

misconstrued Supreme Court precedent, which only barred a

lla

public display of a nativity scene in isolution, not in

conjunction with secular holiday symbols. See id. (comparing

Lynch v. Donnelly, 465 U.S. 668 (1984) with County of

Allegheny v. ACLU, 492 U.S. 573 (1989)). Donohue did not

assert that the créche was a secular rather than religious

symbol. Instead, he insisted that the right to display religious

symbols on public property had been recognized in Capitol

Square Review & Advisory Board v. Pinette, 515 U.S. 753

(1995). See Donohue Letter to Levy, Dec. 4, 2001, at 2.

In a subsequent letter dated December 14, 2001, Donohue

challenged the DOE’s characterization of the menorah and the

star and crescent as secular symbols and asked for a

clarification as to DOE policy regarding nativity scenes: “Are

they secular or religious, and can they be displayed in the

schools?” Donohue Letter to Levy, Dec. 14, 2001, at 1. The

Chancellor’s general counsel replied that “[t]he Supreme

Court has recognized both the Menorah and Christmas tree as

secular symbols of the holiday season. On the other hand, the

Supreme Court has found that a nativity scene is not a secular

symbol and, therefore, it is unconstitutional to display it on

public property.” Vignola Letter to Donohue, Dec. 20, 2001,

at 1.

Over the next several months, Donohue and _ the

Chancellor’s general counsel continued to exchange letters

debating the relevant case law on holiday displays. In an

October 28, 2002 letter, counsel stated that Donohue’s

reliance on Capitol Square was misplaced because that case

concerned the display of a religious symbol in a “public

forum,” which public schools were not. Vignola Letter to

12a

Donohue, Oct. 28, 2002, at 1.* Counsel similarly asserted

that the Supreme Court’s approval of a créche display in

Lynch was limited to the particular facts of that case, which

were not translatable to a public school setting. See td.

Finally, counsel disputed Donohue’s reading of Allegheny. He

asserted that the religious symbol there at issue, a menorah,

was recognized by the Court to have “both religious and

secular dimensions,” which was not the case with a créche,

which “is solely a religious symbol.” /d. Further, counsel]

stated that tiie Supreme Court in Allegheny had

“acknowledged that there is no more secular alternative

symbol” to represent Chanukah, which the DOE concluded

was not the case with Christmas. /d.

The net result was that, despite the Catholic League’s

protest, the DOE continued to disallow créches from holiday

displays in the City public schools.

E. The Holiday Displays in the Schools Attended by

Skoros’s Sons

1. December 2001 - P.S. 165

In December 2001, at which time Nicholas Tine attended

P.S. 165, a temporary holiday display in the front lobby of

that school included a | 4 foot Christmas tree, a one-foot

* At issue in Capitol Square was a cross erected by the Ku

Klux Klan. See Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. at 758.

I3a

menorah, a similarly sized star and crescent,’ and a kinara.°

Red plastic was hung on a lobby wail to make the wall appear

to be a large gift box tied with red ribbon. An American flag

was affixed to the ribbon, as well as a gift tag stating, “A gift

of liberty and justice for all.”

2. December 2002 - P.S. 184

In December 2002, at which time Christos Tine attended

P.S. 184, a holiday display in that school lobby included a

large, “festively decorated Christmas tree,” next to which

stood a small table “with several dreidels’ and three paper

menorahs, one with a sign stating “Happy Hanukah.’” Skoros

v. City of New York, 2004 U.S. Dist. LEXIS 2234, at *7

(footnote added). “[F]ive dreidels and two kinaras” were also

displayed on the walls adjacent to the Christmas tree and

table sd. At the rear entrance to P.S. 184, a more modest

holiday display had two large snowflakes hanging from the

ceiling, while student artwork on the walls depicted six paper

> This appears to be the only display of the star and crescent in

evidence in this case.

° A kinara is a seven-branched candelabrum that is lit during

Kwanzaa. The colors of the candles - three red, three green, and

one black - represent, for example, self-determination, collective

work and responsibility, and unity. See 7 New Encyclopedia

Britannica, “Kwanzaa,” 55; Antoinette Broussard, African-

American Holiday Traditions 142-43 (2000).

’ A dreidel is a spinning top with four sides, each of which is

inscribed with a different Hebrew letter. Together, the letters

abbreviate a sentence that refers to the Chanukah miracle. See

County of Allegheny v. ACLU, 492 U.S. at 585 (plurality opinion)

(Blackmun, J.).

14a

Christmas wreaths framing students’ written work, four

dreidels, and a kinara.

Christos’s own classroom was decorated with a varicty of

student art projects. The district court accurately described the

display, which is memorialized in a series of photographs, as

follows:

Hanging by clothespins from a line strung across the

classroom are student-created, three-dimensional

paper Christmas wreaths and dreidels and at least one

drawing of a kinara. Affixed to tables and chairs in

the classroom are student-created stockings, with a

name on each, presumably the students’ names. There

is also a paper wreath made of alternating snowmen

and Christmas trees topped with a Star of Bethlehem

affixed to a wall, as well as a display of snowmen

under “A Winter Wonderland” sign.

Id. at *8 (internal citations omitted).

A calendar for the month of December also hung in the

classroom. At the top, it depicted Santa Claus in his sleigh

pulled by reindeer. Each day of the month was noted in a cut-

out figure of either a snowman, Christmas tree, or dreidel.°

* Skoros complains that the calendar square for December 25,

Christmas day, depicted the date in a dreidel. The calendar did not

link particular holidays to particular dates and no evidence was

adduced indicating that the use of a dreidel on December 25 was a

product of anything other than the random placement of the three

symbols used to decorate the calendar. Thus, December 24,

Christmas Eve, was marked with a Christmas tree, and December

26, the first day of Kwanzaa, with a snowman. The dates December

1 through 6, coinciding with the last six days of Chanukah, were

lSa

Skoros alleged that, as one class project, Christos had

been required to make a menorah, but the district court found

that assertion unsupported by the record. See id. at *13. The

evidence indicates that Christos’s teacher did give children a

Chanukah booklet, with text describing the origin of the

dreidel and latkes’ and black-and-white illustrations, including

a cover depiction of a menorah, boldly outlined as in a

coloring book. Christos’s teacher asked the children to color

the booklets, but she did not check to see whether they had

done so nor did she display any pictures from the booklets in

class. See Dahan Aff. at 2-3. Skoros did not object to the

booklet. Indeed, in a letter to Christos’s teacher, she stated

that she thought her son had done a “fantastic” job coloring

the menorah and that she had played the dreidel game with

him. Skoros Letter to Dahan, Dec. 9, 2002. She did,

however, note that “[a] menorah is a religious symbol,” and

inquired whether the children would be coloring any religious

symbols for Christmas. /d. In response, Christos’s teacher

advised Skoros that the children had made Christmas wreaths

and stockings, which now decorated their classroom. She

forwarded a copy of the DOE Holiday Display Memo, noting

its focus on secular holiday symbols and its identification of

the menorah as a permissible secular symbol. See Dahan

Letter to Skoros (undated).

depicted using all three symbols.

Latkes are potato pancakes customarily served during

Chanukah because the oil in which they are fried serves as a

reminder of the miracle of oil associated with Chanukah. See

County of Allegheny v. ACLU, 492 U.S. at 585 n.26 (plurality

opinion) (Blackmun, J.) (citing M. Strassfeld, The Jewish Holidays

168 (1985)).

16a

3. December 2002 - P.S. 169

In December 2002, at which time Nicholas Tine attended

P.S. 169, that school’s holiday decorations included a wall

display depicting a row of reindeer with shiny red noses,

scattered five-pointed stars, two single candles, gingerbread

boys, a Christmas tree, and a dreidel, all beneath a heading

stating “Songs, Symbol[s], Signs of the Season.” Other walls

showed students’ written work interspersed with art projects

including cotton ball snowmen and brightly colored Santa

Claus faces. The Santa display bore a heading stating “Let It

Snow!”

Yet other wall display highlighted seasonal books and

related student artwork. A card referencing the book Rudolph

the Red-Nosed Reindeer was placed amidst a herd of cheerful,

brown-bag reindeer, with red ball noses, ribbon bowties, and

flower-strewn antlers. A card referencing The Gingerbread

Baby was placed with brightly colored gingerbread boys and

girls dancing under a Christmas tree made from a mass of

green-colored cut-outs of children’s hand tracings. A card for

The Chanukah Guest was placed with paper and stuffed teddy

bears sporting bright red scarves and carrying small dreidels

in one hand and a frying pan with latkes in the other.

Elsewhere in the school, a large snowman sat on a stage atop

decorated gift boxes.

In the school office, a small decorated Christmas tree

shared the counter with a smaller menorah, and, at least for

some time, with a bowl of fruit representing Kwanzaa.'” An

Although Skoros asserts that this menorah was placed in the

office window and lit, the school principal denies the assertion. See

Kunin Aff. at 2.

17a

office desk, one side of which depicted Santa Claus in his

Sleigh full of gifts, was festooned with multicolored lights. A

red garland and «vhite lights decorated the windows of another

school room, while large candy canes, a Santa face, a

Kwanzaa sign, and a dreidel hung from the ceiling.

In Nicholas’s classroom, cards on the wall described four

holidays: Kwanzaa, Christmas, Ramadan, and Chanukah.''

The Kwanzaa card stated:

Kwanzaa is the holiday when African Americans

celebrate their cultural heritage. It was created in 1966

by Dr. Maulana Karenga, an African American who

wanted his people to have a special time to celebrate

and learn about their cultural origins. Kwanzaa is

celebrated from December 26 through January |.

Families and friends gather to remember their

ancestors and to enjoy African music, dancing,

poetry, and foods. The holiday has seven days, seven

symbols, and seven principles. The principles

correspond to the seven days of the celebration and

serve as guides for daily living.

Each night, during Kwanzaa, everyone drinks from

the kikombe, or unity cup. The first person who raises

'' The record does not indicate whether these cards were also

displayed in other classrooms, but that inference appears reasonable

given that the items are a published teaching aid rather than the

creation of an individual teacher. In any event, the card display

establishes that the challenged DOE policy did not preclude

respectful verbal acknowledgments of the religious origins of

certain winter holidays or of the fact that nativity scenes are used

by some persons in celebrating Christmas.

18a

the cup says “Harambee,” a Swahili word that means

“Let’s all pull together.” What are other symbols of

Kwanzaa?

The Christmas card stated:

Christmas, December 25, is the Christian holiday that

celebrates the birth of Jesus Christ. This holy time is

marked by Nativity scenes, caroling, and church

services where Christians hear again the story of the

birth of the baby Jesus. Christmas includes many

festive customs such as decorating homes and

evergreen trees with colored lights, bright ribbons,

and shining ornaments. People hang stockings by the

fireplace, send Christmas cards to friends near and

far, and wrap carefully chosen gifts for their loved

ones. The jolly figure of Santa Claus is the bringer of

gifts in this happy season.

The Christmas tree is one of the many popular

symbols of this holiday. People put gifts under the

trees after they decorate them with lights and

ornaments. What other Christmas symbols can you

name?

The Ramadan card stated:

Ramadan, the ninth month of the Muslim calendar, is

a holy month for Muslims, believers in the religion

Islam. During Ramadan, Muslims fast (take no food

or drink) from dawn to sunset. It is a very spiritual

time for Muslims. They arise early for a pre-dawn

meal. At the end of the day, the fast is broken by

taking the /ftar meal, often with friends or family

invited into one another’s homes. When the new moon

19a

appears and the month of Ramadan is over, Muslims

celebrate a joyous holiday called Eid-ul-Fitr (Festival

of Fast-Breaking). They dress in their best clothing for

prayers at the mosque and celebrate with family and

friends.

On Eid-ul-Fitr, Muslims often visit one another’s

homes with gifts of sweets, nuts, or coins. The festival

is a happy end to the holy month of Ramadan. How is

Ramadan like your winter holiday celebrations?

The Chanukah card stated:

Hanukkah is celebrated by Jews in remembrance of a

great victory, which won them the right to practice

their religion. Also called the Festival of Lights,

Hanukkah lasts for eight days because the oil in the

Hanukkah story lasted that long. Candles are lit each

evening during the eight days of Hanukkah. The

candle holder is called a menorah. \t holds eight

candles and one servant candle, which is used to light

the others - one more candle each night of Hanukkah.

Some children receive gifts on each of the eight nights

of Hanukkah. They play dreidel games and enjoy

special Hanukkah foods.

Spinning a dreidel, a four-sided top, is a favorite game

for children during Hanukkah. The letters on the four

sides of the dreidel are the first letters of a Hebrew

sentence that means “A great miracle happened

there.” What is the miracle?

20a

¥. District Court Proceedings

1. Plaintiffs’ Complaint

Skoros filed the instant lawsuit on December 29, 2002. In

an amended complaint, filed February 28, 2003, she charged

that the City’s holiday display policy, on its face and as

applied by the named defendants, “impermissibly promoted

and endorsed the religions of Judaism and Islam, conveyed

the impermissible message of disapproval of Christianity, and

coerced students to accept the Jewish and Islamic religions in

violation of the Establishment Clause of the First

Amendment.” Am. Compl. at 7, § 22. She further alleged

that the defendants had violated the Free Exercise Clause of

the First Amendment by coercing her sons “to accept the

Jewish and Islamic religions and to renounce [their] Christian

religion.” Jd. at 8, § 25. Finally, she asserted that these

actions infringed her own right “to control the religious

upbringing and education of her children” in violation of the

First and Fourteenth Amendments. /d. at 9, 4 28. In relief,

Skoros sought (1) a declaratory judgment that the defendants

had violated her own and her sons’ constitutional rights, as

pleaded in the amended complaint; (2) a permanent injunction

enjoining defendants from further implementing _ the

challenged holiday display policy in the City’s public schools;

and (3) an award of nominal damages, attorneys’ fees, and

costs. See id. at 9-10.

2. The Bench Trial

In October 2003, both sides moved for summary

judgment. On December 4, 2003, they withdrew these

motions and agreed to have the case tried to the bench on a

stipulated record. After reviewing the parties’ joint

submission, which included numerous affidavits and exhibits,

2ia

the district court issued a detatled 36-page decision on

February 18, 2004, awarding judgment in favor of the

defendants. See Skoros v. City of New York, 2004 U.S. Dist.

LEXIS 2234.

a. The Establishment Clause Claim

The district court concluded that Skoros’s Establishment

Clause challenge failed because the DOE holiday display

policy, on its face, satisfied the three-part test established in

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

challenged action to (1) have a valid secular purpose, (2) have

a primary effect that neither advances nor inhibits religion,

and (3) avoid excessive state entanglement with religion).

The district court found that the stated purpose of the

policy was secular: “‘to foster mutual understanding and

respect for the many beliefs and customs stemming from our

community’s religious, racial, ethnic and cultural heritage.’”

Skoros v. City of New York, 2004 U.S. Dist. LEXIS 2234, at

*21 (quoting Holiday Display Memo at 1). To the extent

Skoros argued that this purpose statement masked the

defendants’ true goal to denigrate Christianity by secularizing

Christmas and to promote Judaism and Islam, the district

court found “no evidence” in the record “to establish such an

insidious purpose.” /d. at *22. It noted that the Supreme

Court had construed the Establishment Clause to “‘confin[e]

the government’s own celebrations of Christmas to the

holiday’s secular aspects.’” /d. at *26-27 (quoting County of

Allegheny v. ACLU, 492 U.S. at 611). It further concluded

that

[without a diversity policy a winter holiday display in

New York City’s public schools would be dominated

by images representative of Christmas. . . . The DOE

22a

policy, permitting the inclusion of symbols of

Kwanzaa, Chanukah, and Ramadan in addition to

Christmas, is thus an attempt to diversify the season

so that children who do not celebrate Christmas can

participate in the seasonal celebration and can learn

about cultures different from their own without

trespassing on their own religious beliefs.

Id. at *23-25.

At the second step of the Lemon analysis, the district court

ruled that the primary effect of the school display policy was

secular: “celebrating the diversity of the winter holiday

season.” /d. at *37. It concluded that no objective observer

would perceive the policy’s effect to be that asserted by

Skoros, that is, an endorsement of Judaism and Islam and a

manifestation of hostility toward Christianity.

The court specifically found that the DOE had not singled

out the créche for exclusion from school holiday displays.

Rather, it excluded all symbols that, like the créche, were

“purely religious.” /d. at *35. At the same time, it allowed

symbols with religious origins to be used in holiday displays

if they had “developed significant secular connotations.” /d.

at *30. The district court explained that an objective observer

would perceive this distinction as reasonable because, when

symbols had acquired “significant secular dimensions,” a

school could more easily use them “in a prudent and objective

manner, as a teaching aid” in “the advancement of a secular

program of education, and not of religion.” /d. at *31.

Although the district court made no specific findings with

respect to the menorah and the star and crescent, it apparently

concluded that these symbols had acquired secular

significance. See id. at *33.

23a

Finally, the district court concluded that the entanglement

prong of the Lemon test required little discussion because the

DOE’s attempt to design a uniform holiday display policy

ensured that it did not need “to police each and every display

in every public school year after year.” Jd. at *38.

Insofar as Skoros challenged the DOE holiday display

policy as applied to particular displays at the public schools

attended by her sons in December 2001 and 2002, the district

court ruled that no child, viewing the “dizzying array of

holiday symbols” included in the displays, would conclude

that the school was endorsing or coercing the practice of

“Judaism or Islam over Christianity.” /d. at *42-43. Rather,

“the context of these holiday displays” satisfactorily

“neutralized the religious dimensions of the menorah and the

star and crescent” so that “a reasonable Christian child . . .

would not perceive religious endorsement or coercion but ‘a

celebration of the diversity of the holiday season, including

traditional religious and secular symbols of that season.’” Jd.

at *43 (quoting Elewski v. City of Syracuse, 123 F.3d 51, 55

(2d Cir. 1997)).

b. The Free Exercise Clause Claim

The district court also rejected Skoros’s Free Exercise

claim as without merit. Reiterating ‘at the holiday displays

at issue “conveyed an inclusive mes: age, did not advance or

promote any particular religion, and did not coerce [Skoros’s

sons] to reject Christianity,” the court concluded that the

boys’ “passive exposure to and even their participation in the

creation of the displays, including symbols from several

different religious and cultural holidays, do not interfere with

their ability to practice their own faith.” /d. at *47-48. It

reached the same conclusion with respect to any lessons about

the religious origins of any of the holiday symbols displayed,

24a

because the “secular manner” in which the evidence indicated

they were presented did not interfere with Skoros’s sons

ability to practice their own faith. /d. at *48.

c. The Parental Rights Claim

Acknowledging that the First and Fourteenth Amendments

afforded Skoros the right to direct the religious upbringing

and education of her children, the district court concluded that

there was no violation of that right because the evidence

simply did not support her claim that defendants sought to

coerce her children “to accept the Jewish and Islamic faiths

and renounce Christianity.” /d. at *49.

Ii. Discussion

A. The Standard of Review

On appeal from a bench trial, we generally review a

district court’s findings of adjudicative fact only for clear

error and its conclusions of law, or mixed fact and law, de

novo. See Elewski v. City of Syracuse, 123 F.3d 51, 53, 55

(2d Cir. 1997) (holding that district court’s finding of “a

secular purpose for the créche as part of the entire

display . . . [was] not clearly erroneous”); accord Natl Mkt.

Share, Inc. v. Sterling Nat'l Bank, Inc., 392 F.3d 520, 528

(2d Cir. 2004); cf. Lynch v. Donnelly, 465 U.S. 668, 681

(1984) (holding that “the District Court’s inference, drawn

from the religious nature of the créche, that the City has no

secular purpose was, on this record, clearly erroneous”).

Where, as here, a case is tried on a stipulated record, our

review is de novo because the district court's rulings are

necessarily conclusions of law or mixed fact and law. See

General Elec. Co. v. Comm’r, 245 F.3d 149, 154 (2d Cir.

2001); accord McCormick v. Sch. Dist. of Mamaroneck, 370

25a

F.3d 275, 283 (2d Cir. 2004); see also ACLU vy. Florissant,

186 F.3d 1095, 1097 (8th Cir. 1999) (applying de novo

review to holiday display case tried on stipulated record).

B. The First Amendment Religion Clauses and Public

Displays Incorporating Religious Symbols

The First Amendment famously states that “Congress shall

make no law respecting an establishment of religion, or

prohibiting the free exercise thereof. . . .” U.S. Const.

amend. I. The dual mandate of these Establishment and Free

Exercise Clauses extends to state and local governments

through the Fourteenth Amendment. See U.S. Const. amend.

XIV; Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)

(“The Fourteenth Amendment has rendered the legislatures of

the states as incompetent as Congress to enact . . . laws

{contrary to the First Amendment’s religion clauses].”).

Skoros submits that New York City’s holiday display

policy for its public schools violates both religion clauses of

the First Amendment. In reviewing plaintiffs’ claims, we

confront the challenge of frequently splintered Supreme Court

decisions on the constitutionality of public displays involving

religious symbols. Although the Court has never construed

the religion clauses to require government “to purge from the

public sphere all that in any way partakes of the religious,”

Van Orden v. Perry, 125 S.Ct. 2854, 2868 (2005) (Breyer,

J., concurring in the judgment), its members have rarely

agreed ~ in either analysis or outcome - in distinguishing the

permissible from the impermissible public display of symbols

having some religious significance.

The Supreme Court first addressed the issue of public

holiday displays in 1984 in Lynch v. Donnelly, 465 U.S. 668.

Splitting five to four, the Court held that a créche displayed

26a

in a park together with various secular holiday symbols did

not violate the First Amendment. The majority ruled that the

purpose and effect of the challenged display could not fairly

be determined by focusing only on the créche. See id. at 679-

80. Rather, the créche had to be assessed im the context of the

overall holiday display, which was reasonably understood to

serve the legitimate secular purpose «. depicting the origins

of a national holiday. See id. at 680-81.

Five years later, in County of Allegheny v. ACLU, 492

U.S. 573, the Court considered a different holiday display,

with a créche featured in a courthouse lobby, somewhat

removed from secular holiday symbols exhibited elsewhere in

the building. Once again, the Court divided five to four in

holding this display unconstitutional because, “unlike in

Lynch, nothing in the context of the [courthouse] display

detracts from the créche’s religious message.” /d. at 598.

The créche was not the only religious symbol whose

public display was at issue in Allegheny. A First Amendment

challenge was also raised to a menorah displayed outside

another public building together with a Christmas tree and a

sign saluting liberty. On this issue, six justices agreed that the

combined mencrah-Christmas tree display did not violate the

Establishment Clause. This group of six, however, produced

three different opinions, none of which commanded a

majority of the Court. See id. at 613 (opinion of Blackmun,

J.); id. at 632 (O’Connor, J., concurring in part and

concurring in the judgfnent); id. at 655 (Kennedy, J.,

concurring in the judgment in part and dissenting in part).

Four justices concluded that passive religious displays,

whether of a créche or a menorah, were constitutionally

permissible because they did not compel anyone “to observe

Or participate in any religious ceremony or activity.” /d. at

664 (Kennedy, J., concurring in the judgment in part and

27a

dissenting in part). Both Justice Blackmun and Justice

O’Connor, however, insisted that the Establishment Clause

reached beyond coercion to prohibit government endorsement

of religion. See id. at 619-20 (opinion of Blackmun, J.); id.

at 635-36 (O’Connor, J., concurring in part and concurring

in the judgment)."’

While Justices Blackmun and O’Connor recognized the

menorah as a religious symbol that could communicate

government endorsement of Judaism if displayed by itself,

they concluded that the menorah did not convey this

impermissible message in the context of the challenged

display. See id. at 616 n.64 (opinion of Blackmun, J.); id. at

634 (O’Connor, J., concurring in part and concurring in the

judgment). For Justice Blackmun, the placement of a menorah

“in the shadow of the [Christmas] tree” communicated “a

secular celebration of Christmas coupled with an

acknowledgment of Chanukah as a_ contemporaneous

alternative tradition.” /d. at617-18 (opinion of Blackmun, J.).

The sign saluting liberty reinforced the display’s secular

message by “linking that theme with this Nation’s legacy of

freedom, which allows an American to celebfate the holiday

season in whatever way he wishes, religiously or otherwise.”

Id. at 619. Further, Justice Blackmun observed that no less

religious symbol was reasonably available to represent

Chanukah. See id. at 618 (“An 18-foot dreidel would look out

of place {beside a 45-foot Christmas tree] and might be

interpreted by some as mocking the celebration of

In analyzing the créche display in Allegheny, a majority of

the Court adopted the endorsement test, which “precludes

government from conveying or attempting to convey a message that

religion or a particular religious belief is favored or preferred.”

County of Allegheny v. ACLU, 492 U.S. at 593 (internal quotation

marks and alteration omitted).

28a

Chanukah.”). Justice O’Connor did not think endorsement

analysis required consideration of more secular alternatives

for a challenged religious symbol. See id. at 636 (O’Connor,

J., concurring in part and concurring in the judgment). She

concluded simply that “a reasonable observer” of the display

would understand that the defendants, by using “a secular

symbol of the Christmas holiday season rather than a religious

one,” together with a religious symbol such as the menorah,

were “acknowledg[ing] the cultural diversity of our country”

and conveying the permissible secular message of “tolerance

of different choices in matters of religious belief or nonbelief

by recognizing that the winter holiday season is celebrated in

different ways by our citizens.” /d. at 635-36.

The passage of time has not produced greater consensus

on the Court in resolving First Amendment challenges to

public displays of religious symbols. Last term, ten separate

opinions were filed in two cases, one of which held that the

Establishment Clause was not violated by a long-standing

public display of the Ten Commandments, see Van Orden v.

Perry, 125S.Ct. at 2858 (plurality opinion) (Rehnquist, C.J.);

id. at 2864 (Scalia, J., concurring); id. at 2864 (Thomas, J.,

concurring); id. at 2868 (Breyer, J., concurring in the

judgment); id. at 2873 (Stevens, J., dissenting); id. at 2892

(O’Connor, J, dissenting); id. at 2892 (Souter, J., dissenting),

and the other of which ruled that the Clause was violated by

a different Ten Commandments display with a background of

endorsement, see McCreary County v. ACLU, 125 S.Ct. 2722

(2005); id. at 2746 (O’Connor, J., concurring); id. at 2748

(Scalia, J., dissenting).

Government officials attempting to parse these sharply

divided public display decisions might be forgiven for

occasionally thinking, as do some of the justices, that they

confront a “jurisprudence of minutiae” that leaves them to

2¥a

rely on “little more than intuition and a tape measure” to

ensure the constitutionality of public holiday displays. County

of Allegheny v. ACLU, 492 U.S. at 674-75 (Kennedy, J.,

concurring in the judgment in part and dissenting in part); see

also Elewski v. City of Syracuse, 123 F.3d at 57 (Cabranes,

J., dissenting) (citing Justice Kennedy’s Allegheny opinion in

noting challenge of “intensive fact-specific analyses” required

in applying endorsement test to holiday display cases); see

also ACLU v. Schundler, 168 F.3d 92, 105 (3d Cir. 1999)

(Alito, J.) (observing that the Supreme Court’s religious

display decisions “have been marked by fine line-drawing,”

so that “it is not easy” for public officials “to determine

whether particular displays satisfy the Court’s standards”).

The concern calls to mind Justice Jackson’s observation that

the metaphorical wall of separation between church and state

erected by the Establishment Clause, see 8 The Writings of

Thomas Jefferson 113 (H. Washington, ed., 1861), can

appear “as winding as the famous serpentine wall” designed

by Jefferson for the University of Virginia, J/linois ex rel.

McCollum vy. Bd. of Educ., 333 U.S. 203, 238 (1948)

(Jackson, J., concurring); see also Wallace v. Jaffree, 472

U.S. 38, 91-108 (1985) (Rehnquist, J., dissenting) (criticizing

“wall” metaphor). No matter. Officials who authorize public

holiday displays, like the lower courts that must rule on their

constitutionality, are obliged to strive in good faith to identify

and apply the principles of law controlling these Supreme

Court decisions.

Following that mandate, a divided panel of this court, in

Kaplan v. City of Burlington, 891 F.2d 1024, 1030 (2d Cir.

1989), ruled that a menorah displayed by itself in a public

park violated the Establishment Clause. On the other hand, in

Elewski v. City of Syracuse, another divided panel concluded

that a créche could constitutionally be displayed in a town

square, because a reasonable observer would view that

30a

display together with secular holiday decorations on the

town’s nearby main streets and a menorah in a neighboring

square and would perceive the totality of holiday symbols as

“a celebration of the diversity of the holiday season, including

traditional religious and secular symbols of that season.” 123

F.3d at 55. Moreover, the observer would understand the

“principal purpose of that celebration [to be] to preserve the

economic viability of downtown retailers.” Jd.

With the challenge of our own divided precedent as well

as that of the Supreme Court in mind, we now confront the

constitutionality of holiday displays in a different and more

difficult context: public elementary and secondary schools.

C. Skoros’s Establishment Clause Challenge

In addressing Establishment Clause challenges, the

Supreme Court has observed that “[t}he First Amendment

contains no textual definition of ‘establishment,’” and that the

term itself is “not self-defining.” McCreary County v. ACLU,

125 S.Ct. at 2742; see Lemon v. Kurtzman, 403 U.S. at 612

(describing language of Establishment Clause as “opaque”).

Most obviously, the Clause prohibits the establishment of a

national or state church, but the Court has never construed its

mandate to apply only to this most obvious proscription. See

Lemon v. Kurtzman, 403 U.S. at 612 (observing that a

prohibition on laws relating to religion necessarily extends

beyond the establishment of a national church); accord

McCreary County v. ACLU, 125 S.Ct. at 2742. It has long

been accepted that the Establishment Clause prohibits

government from officially preferring one religious

denomination over another: “The clearest command of the

Establishment Clause is that one religious denomination

cannot be officially preferred over another.” Larson v.

Valente, 456 U.S. 228, 244 (1982); see McCreary County v.

3la

ACLU, 125 S.Ct. at 2733; Gillette v. United States, 401 U.S.

\ 437, 449-50 (1971); Epperson v. Arkansas, 393 U.S. 97, 104

(1968); Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947).

Skoros submits that the City’s holiday display policy

violates this neutrality command by officially promoting and

endorsing Judaism and Islam and by conveying disapproval of

Christianity. See Am. Compl. at 7, § 22. Like the district

court, we find no record support for this argument.

1. The Applicability of the Lemon Test

In identifying the standard of review applicable to

Skoros’s Establishment Clause challenge, we begin with a

preliminary word about “neutrality.” In recently reiterating

that neutrality is the “touchstone” of First Amendment

analysis, McCreary County v. ACLU, 125 S.Ct. at 2733, the

Supreme Court noted that the principle provides a “sense of

direction” in evaluating the variety of problems that can arise

under the Establishment Clause, id. at 2742. Specifically,

neutrality serves “to guard against the civic divisiveness that

follows when the Government weighs in on one side of

religious debate.” /d. At the same time, however, the Court

acknowledged that, because “neutrality” is a general

principal, it “cannot possibly lay every issue to rest, or tell us

what issues on the margins are substantial enough for

constitutional significance.” Id. at 2743; see also Van Orden

v. Perry, 125 S.Ct. at 2868-69 (Breyer, J., concurring in the

judgment) (observing that “[w]here the Establishment Clause

is at issue, tests designed to measure ‘neutrality’ alone are

insufficient”); Lee v. Weisman, 505 U.S. 577, 627 (1992)

(Souter, J., concurring) (“That government must remain

neutral in matters of religion does not foreclose it from ever

taking religion into account.”). In making this point,

McCreary cited approvingly to Justice Harlan’s observation

32a

that “‘neutrality’ . . . is not so narrow a channel that the

slightest deviation from an absolutely straight course leads to

condemnation” by the First Amendment. McCreary County

v. ACLU, 125 S.Ct. at 2743 (quoting Sherbert v. Verner, 374

U.S. 398, 422 (1963) (Harlan, J., dissenting)); see also

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

306 (1963) (Goldberg, J., concurring) (cautioning that an

“untutored devotion to . . . neutrality” can lead to “a

brooding and pervasive devotion to the secular and a passive,

or even active hostility to the religious”).

Thus, in reviewing Skoros’s Establishment Clause claim,

we do not test the City’s challenged holiday display policy for

absolute neutrality. Instead, we apply the three-prong analysis

articulated by the Supreme Court in Lemon v. Kurtzman, 403

U.S. 602. Lemon instructs that, consistent with the general

neutrality objective of the Establishment Clause, government

action that interacts with religion (1) “must have a

secular . . . purpose,” (2) must have a “principal or primary

effect . . . that neither advances nor inhibits religion,” and

(3) “must not foster an excessive government entanglement

with religion.” /d. at 612-13 (internal quotation marks

omitted) .'?

"> The Lemon test has been much criticized over its twenty-five

year history. See, e.g, McCreary County v. ACLU, 125 S.Ct. at

2757-58 (Scalia, J., dissenting) (criticizing heightened purpose

test); Van Orden v. Perry, 125 S.Ct. at 2867 (Thomas, J.,

concurring) (faulting reliance on “unusually informed observer”);

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S.

384, 397-401 (1993) (Scalia, J, concurring in the judgment)

(cataloguing cases in which justices have rejected Lemon test);

County of Allegheny v. ACLU, 492 U.S. at 655 (Kennedy J.,

concurring in the judgment in part and dissenting in part)

(criticizing endorsement test). Nevertheless, the Supreme Court has

33a

In applying the Lemon test, we recognize that, in

considering the “purpose” prong, we must follow McCreary’s

recent instructions on the proper scope of purpose analysis.

See McCreary County v. ACLU, 125 S.Ct. at 2734-37.

Similarly, in reviewing the “effect” of the DOE policy, we

heed Justice O’Connor’s observation, first advanced in her

concurring opinion in Lynch v. Donnelly and subsequently

adopted by a majority of the Supreme Court in County of

Allegheny v. ACLU, that Lemon’s second prong effectively

asks whether “the practice under review in fact conveys a

message of endorsement or disapproval.” Lynch v. Donnelly,

465 U.S. at 690 (O’Connor, J., concurring) (emphasis

never specifically disavowed Lemon’s analytic framework. See,

e.g., McCreary County v. ACLU, 125 S.Ct. at 2733 (expanding on

Lemon’s purpose prong in reviewing specific Ten Commandments

display); Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 314

(2000) (holding that Lemon analysis appropriately applies to facial

Challenges under the Establishment Clause); cf. Van Orden v.

Perry, 125 S.Ct. at 2860-61 (acknowledging possible continued

viability of Lemon tesi, but finding it “not useful” in reviewing

constitutionality of the passive monument display in that case). This

court has regularly relied on Lemon in evaluating Establishment

Clause challenges and only recently reiterated that “the Lemon test

continues to govern our analysis of Establishment Clause claims.”

Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 634 (2d Cir.

2005); see Commack Self-Serv. Kosher Meats, Inc. v. Weiss, 294

F.3d 415, 425 (2d Cir. 2002) (applying Lemon test in assessing

First Amendment challenge to New York’s kosher fraud laws);

Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 75 (2d Cir. 2001)

(applying Lemon test to Establishment Clause challenge to Earth

Day celebration). We are, of course, required to respect this

precedent until it is reconsidered by this court sitting en banc or is

rejected by a later Supreme Court decision. See Monsanto v. United

States, 348 F.3d 345, 351 (2d Cir. 2003). Accordingly, we apply

Lemon analysis to Skoros’s Establishment Clause challenge.

34a

added); see County of Allegheny v. ACLU, 492 U.S. at 592-

94 (opinion of Blackmun, J.); see also Altman v. Bedford

Cent. Sch. Dist. , 245 F.3d 49, 75 (2d Cir. 2001) (recognizing

“endorsement” derives from second prong of Lemon)."*

Finally, in reviewing the challenged DOE policy for possible

“excessive entanglement” with religion, we are careful to

observe the link drawn in Agostini v. Felton, 521 U.S. 203,

232-33 (1997), between this third prong of Lemon analysis

and the second “effect” prong. See Commack Self-Serv.

Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 425 (2d Cir.

2002).

2. Applying the Lemon Test in this Case

a. Purpose

When government action interacts with religion, Lemon

instructs that the government purpose must be “secular.”

Lemon v. Kurtzman, 403 U.S. at 612. The requirement is not

intended to favor the secular over the religious, but to prevent

government from “abandoning neutrality and acting with the

intent of promoting a particular point of view in religious

matters.” Corporation of Presiding Bishop of Church of Jesus

Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335

(1987).

‘* To the extent this court previously suggested in dictum that

an as-applied Establishment Clause challenge might be resolved by

reference only to “endorsement” in cases challenging government

displays of religious imagery, see generally DeStefano v.

Emergency Hous. Group, 247 F.3d 397, 411 (2d Cir. 2001), that

possibility now seems foreclosed by McCreary County v. ACLU,

which emphasized the importance of a “purpose” inquiry in

evaluating a particular Ten Commandments display, 125 S.Ct. at

2733-37.

35a

(1) The Policy’s Actual Purpose Is Secular

(a) The Stated Purpose to Promote

Pluralism

The purpose of the defendants’ challenged policy is

plainly stated in the DOE Holiday Display Memo issued to all

public schools: holiday displays are to be used “to foster

mutual understanding and respect for the many beliefs and

customs stemming from our community’s religious, racial,

ethnic and cultural heritage.” Holiday Display Memo at 1.

The Memo instructs that “(t]he primary purpose of all

{holiday} displays shall be to promote the goal of fostering

understanding and respect for the rights of all individuals

regarding their beliefs, values and customs.” /d. As these

statements demonstrate, the purpose of the policy is not

simply “to celebrate the secular holiday season,” as our

dissenting colleague suggests. Post at [8]. Rather, defendants

are engaged in a specific pedagogical endeavor: to use

children’s natural excitement about various year-end holidays

tc teach the lesson of pluralism by showing children the rich

cultura! diversity of the city in which they live and by

encouraging them to show tolerance and respect for traditions

other than their own." |

'° We cannot agree with the dissent that the challenged policy,

as stated or implemented, is “directed” at having schoolchildren

“utilize[] religious symbols of certain religions,” while “ban{ning]

the religious symbols of another.” Post at [1] (emphasis added). In

fact, the policy strives to minimize the use of religious symbols to

avoid Establishment Clause concerns. To the extent it approves the

use of the menorah and the star and crescent in holiday displays,

that decision appears to have been reached only after defendants

determined that Chanukah and Ramadan could not reasonably be

represented without these symbols and that such symbols could be

36a

Not only is this stated purpose clearly secular; this

particular secular purpose is one in which there is a strong

public interest. When the Supreme Court, in Board of Educ.

v. Grumet, 512 U.S. 687 (1994), ruled that the First

Amendment did not permit New York State to create an

independent school district for children of the Jewish Satmar

sect, Justice Stevens, joined by Justices Blackmun and

Ginsburg, observed that what the state could have done to

alleviate the fears of Satmar children about attending a

broader based public schoo! was to teach students “to be

tolerant and respectful of Satmar customs. Action of that kind

would raise no constituuional concerns and would further the

strong public interest in promoting diversity and

understanding in the public schools.” /d. at 711 (Stevens, J.,

concurring) (emphasis added). Chief Justice Rehnquist and

Justices White, Scalia, and Thomas have acknowledged the

same public interest, albeit in dissent in Lee v. Weisman:

“maintaining respect for the religious observances of others

is a fundamental civic virtue that government (including the

public schools) can and should cultivate,” 505 U.S. at 638

(Scalia, J., dissenting). Justice O’Connor, in her concurring

opinion in Allegheny, has similarly identified “pluralism and

frecdom of belief” as secular purposes that properly can be

promoted in a public holiday display without offending the

Establishment Clause. County of Allegheny v. ACLU, 492

£1 §. at 635-36 (O’Connor J., concurring in part and

concurring in the judgment) (noting that display combining

menorah, Christmas tree, and sign saluting liberty “is an

incorporated into secular holiday displays celebrating pluralism. See

infra at [37-40 & n.18]. While federal courts must decide de novo

the merits of defendants’ incorporation conclusion, nothing in the

record indicates that the policy is in any way “directed” at having

schoolchildren utilize certain religious symbols qua_ religious

symbols.

37a

effort to acknowledge the cultural diversity of our country and

to convey tolerance of different choices in matters of religious

belief or nonbelief by recognizing that the winter holiday

season is celebrated in diverse ways by our citizens”); see

also Walz v. Tax Comm’n, 397 U.S. 664, 689 (1970)

(Brennan, J., concurring) (rejecting First Amendment

challenge to tax exemptions for religious institutions because

such organizations “contribute[} to the diversity of

association, viewpoint, and enterprise essential to a vigorous,

pluralistic society”).

In teaching the lesson of pluralism in New York City

public schools, the defendants confront a greater challenge

than the one at issue in Kiryas Joel, simply by virtue of the

enormous size of the City school system and the extraordinary

cultural diversity of its student body. Moreover, because a

significant number of New York City schoolchildren or their

parents are immigrants, sometimes from countries that place

little value on either diversity or tolerance, City schools play

a particularly important role in teaching these essential

elements of pluralism to future generations of Americans. The

fact that they do so, particularly at lower school levels,

through cheerful multicultural holiday displays rather than

formal textbook assignments, does not diminish the

importance of the lesson, much less call into question its

actual secular purpose.

In sum, because the promotion of tolerance and respect

for diverse customs is the clearly stated purpose of the holiday

display policy at issue in this case, we conclude that this

purpose is permissibly secular.

38a

(b) Skoros’s Claim that the Policy’s Stated

Purpose Masks Defendants’ Real Goal to

Promote Judaism and Islam Over

Christianity

At the first prong of Lemon analysis, we generally accord

“deference” to such a clear government statement of an actual

secular purpose provided that the reason is “genuine, not a

sham, and not merely secondary to a religious objective.”

McCreary County v. ACLU, 125 S.Ct. at 2735; see also Santa

Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000);

Edwards v. Aguillard, 482 U.S. 578, 587 (1987). Skoros

asserts that the defendants’ stated purpose is not “genuine”

because, if they were truly intcrested in encouraging respect

for the diverse traditions of public school students, they would

include the créche in holiday displays and not represent

Christmas only through secular symbols. Skoros submits that,

by excluding the créche as a religious symbol and by

mischaracterizing the menorah and the star and crescent as

secular symbols in order to permit their inclusion in school

displays, defendants demonstrate that their actual purpose 1s

not secular pluralism but the endorsement of Judaism and

Islam. Like the district court, we reject this argument.

Preliminarily, however, we note that we cannot agree with

the DOE Memo’s characterization of the menorah as a secular

symbol. In Kaplan v. City of Burlington, this court

specifically identified the menorah as “a religious symbol of

the Jewish faith . . . recognized as such by the general

public.” 891 F.2d at 1026. The Supreme Court and our sister

circuits agree that the menorah is a religious symbol. See

County of Allegheny v. ACLU, 492 U.S. at 613 (opinion of

Blackmun, J.); id. at 633 (O’Connor, J., concurring in part

and concurring in the judgment); id. at 643 (Brennan, J.,

concurring in part and dissenting in part); ACLU v.

39a

Schundler, 168 F.3d at 108; Grossbaum v. Indianapolis-

Marion County Bldg. Auth., 63 F.3d 581, 586 (7th Cir.

1995).'° Nevertheless, we find no record evidence to support

Skoros’s contention that the DOE’s characterization was an

attempt to mask an impermissible purpose to promote Judaism

and Islam or to denigrate Christianity. Rather, the record

suggests that the DOE’s characterization of the menorah as a

secular symbol for purposes of inclusion in school holiday

displays originated in a good-faith - if not entirely correct -

reading of the Supreme Court’s decision in Allegheny.

In his letter to Catholic League President Donohue, the

Chancellor’s general counsel stated:

The Allegheny court recognized that while the

Menorah has both religious and secular dimensions, it

has become the primary visual symbol for the holiday

of Hanukkah. Further, the Court acknowledged that

there is no more secular alternative symbol to

represent Hanukkah. Neither of these factors hold true

for the créche. The créche is solely a religious symbol

'° For purposes of this appeal, we assume that the star and

crescent is also a religious rather than a secular symbol, although

arguments apparently can be raised to the contrary. See Mehdi v.

United States Postal Servs., 988 F. Supp. 721, 723 (S.D.N.Y.

1997) (suing unsuccessfully to display the star and crescent, a

“secular symbol of the Muslim people,” in United States post

offices when Christmas trees and menorahs are used in holiday

displays); see also 8 Encyclopedia Americana, “Crescent,” 175

(int’l ed. 2002) (noting original secular significance of crescent

syr>ol); 7 Encyclopedia of Religion, “Islamic Iconography,” 66

(Mircea Eliade ed., 1987) (explaining that crescent’s early

appearance on Islamic coins and metalwork had no religious

connotations).

40a

and there clearly are other secular alternative symbols

of the Christmas holiday.

Vignola Letter to Donohuc, Oct. 28, 2002, at 1.

As we noted earlicr, six justices agreed in Allegheny that

a menorah displayed together with a Christmas tree and a sign

saluting liberty did not violate the Establishment Clause, but

no one opinion commanded a majority of the Court on this

poimt. Four justices observed that Chanukah, like Christmas,

was a religious holiday that had acquired secular significance.

See County of Allegheny v. ACLU, 492 U.S. at 585 & n.29

(plurality opinion) (Blackmun, J.); id. at 633 (O’Connor, J.,

concurring in part and concurring in the judgment). It was

Justice Blackmun who, in a footnote, stated that “menorahs

- like Chanukah itself - have a secular as well as a religious

dimension.” /d. at 587 n.34 (plurality opinion) (Blackmun,

J.). On this point, however, he did not speak for the Court."”

Indeed, although Justices O’Connor and Stevens joined in this

part of Justice Blackmun’s opinion, they subsequently joined

a majority of their colleagues in faulting Justice Blackmun for

attempting to “relegate[{] the menorah to the role of a neutral!

harbinger of the holiday season.” /d. at 633 (O’Connor, J.,

concurring in part and concurring in the judgment) (internal

Justice Blackmun’s Allegheny opinion, 492 U.S. at 578,

demands careful reading because parts IIl-A, IV, and V (holding

that courthowse créche display violated Establishment Clause) do

represent a clear holding of the Court. As for the remainder of his

opinion, parts I (coniaining the cited excerpt) and II were joined by

Justices Stevens and O’Connor; part III-B was joined by Justice

Stevens; and part VII was joined by Justice O’Connor. In Part VI

of the opinion, in which Justice Blackmun concluded that the

menorah/Christmas tree display did not violate the Establishment

Clause, Justice Blackmun spoke only for himself.

4la

quotation marks omitted); accord id. at 643-44 (Brennan, J.,

concurring in part and dissenting in part); id. at 676-78

(Kennedy, J., concurring in the judgment in part and

dissenting in part).

To the extent the DOE may mistakenly have understood

the Court as a whole to recognize a “secular dimension” for

the menorah, we are not persuaded that this error exposes

defendants’ true purpose to be the promotion of Judaism or

Islam in the City’s public schools. Rather, we conclude that

the interpretive error is attributable simply to the complexity

of the opinions in Allegheny and to the DOE’s failure

carefully to distinguish between those parts of Justice

Blackiaun’s opinion that spoke for a majority of the Court and

those that did not.

In any event, the significance of any DOE error must not

be overstated in evaluating the true purpose of its challenged

policy. The DOE’s characterization of discrete holiday

symbols as secular or religious is not an end in itself but only

a means to assist school administrators and teachers in

identifying holiday symbols that could permissibly be used to

convey the policy’s approved secular message of pluralism.

The fact that the menorah and perhaps the star and crescent

might appropriately be characterized as religious rather than

secular symbols does not necessarily indicate that the

defendants pursue an unconstitutional purpose.'* Indeed, last

'§ The DOE’s characterization of the star and crescent as a

permissible secular symbol for school holiday displays apparently

resulted from its settlement of a lawsuit filed by the same plaintiff

as in Mehdi v. United States Postal Service, 988 F. Supp. 721. See

supra at n.16. In an affidavit to the district court in this case, the

Chancellor’s general counsel explained that, in connection with that

earlier suit, the City’s Corporation Counsel “consulted with several

42a

term, the Supreme Court specifically declined to hold “that a

sacred text [or symbol] can never be integrated

constitutionally into a governmental display” to serve a

secular purpose. McCreary County v. ACLU, 125 S.Ct. at

2741. The critical inquiry, as the Court had earlier made plain

in the very context of a public school, is whether the religious

text or symbol has been sufficiently “integrat[ed] . . . into a

secular scheme to forestall the broadcast of an otherwise

clearly religious message.” /d. at 2737-38 (citing Stone v.

Graham, 449 U.S. 39, 42 (1980) (per curiam) (declaring

unconstitutional isolated exhibition of Ten Commandments in

school classrooms)); accord Altman v. Bedford Cent. Sch.

Dist., 245 F.3d at 76.

Allegheny undoubtedly holds that a menorah - although a

religious symbol - can constitutionally be integrated into a

public holiday display that has a secular rather than religious

purpose and effect. This ruling has itself likely contributed to

increased inclusion of menorahs in secular holiday displays

over the last fifteen years. See, e.g., Mehdi v. United States

Postal Servs., 988 F. Supp. 721, 729 (S.D.N.Y. 1997)

(Sotomayor, J.) (noting that Postal Service policy of

displaying decorated evergreen trees and menorahs with other

experts who indicated that the star and crescent, which appears on

the flags of some countries that have large Muslim populations but

have secular governments, has a secular dimension, . . . was not

originally derived from the Quran and is also considered a poiitical

or cultural symbol.” Vignola Aff. at 7, 4 22. Accordingly, the

Board settled the lawsuit by agreeing “that schools would be

permitted, but not required, to display the star and crescent with

other permitted symbols.” /d. These circumstances would not

indicate to an objective observer that defendant’s real purpose in

allowing the display of the star and crescent is to promote the

islamic religion or to inhibit the practice of Christianity.

43a

seasonal symbols “was no doubt crafted . . . with Allegheny

in mind”). Indeed, we can find proof of this trend in the

lobby of our own Foley Square courthouse, which is

decorated in December with a Christmas tree, numerous

poinsettia plants, and a menorah.

The DOE policy does not permit the menorah or the star

and crescent ever to be used in school holiday displays in

isolation, thereby avoiding the problem prompting this court

to invalidate a menorah display in Kaplan v. City of

Burlington, 891 F.2d at 1030. Indeed, the policy expressly

states that “any symbol or decoration which may be used” in

a school holiday display “must be displayed simultaneously

with other symbols or decorations reflecting different beliefs

or customs.” Holiday Display Memo at | (emphasis added).

In light of this requirement, we reject Skoros’s claim that the

defendants’ stated secular purpose is a sham for actual

religious endorsement. We conclude that the actual purpose

of the challenged policy is as stated by the defendants: to

promote pluralism through multicultural holiday displays.

(2) An Objective Observer Would Perceive the

Policy’s Purpose to Be Secular

Although the purpose prong of Lemon had long been

understood to require courts to inquire only as to “actual

purpose,” see, e.g., Lynch v. Donnelly, 465 U.S. at 690

(O’Connor, J., concurring), the Supreme Court has recently

instructed that the inquiry must further extend to how the

government’s purpose is perceived by “an ‘objective

observer,’ one who takes account of the traditional external

signs that show up in the text, legislative history, and

implementation of the statute,” McCreary County v. ACLU,

125 S.Ct. at 2734 (internal quotation marks omitted).

44a

(a) Identifying the “Objective Observer”

It might appear implicit in McCreary’s quoted definition

that the objective observer is an adult. In Santa Fe

Independent School District v. Doe, however, the Supreme

Court cast a high school student in this role. See 530 U.S. at

308 (noting that “an objective Santa Fe High School student”

would perceive pre-game prayer as stamped with school’s

approval); see also Board of Educ. of Westside Cmty. Schs.

v. Mergens, 496 U.S. 226, 249-52 (1990) (same). We cannot

conclude that it makes equal sense to treat a first or second

grader as the “objective observer” who can take account of

the text, history, and implementation of a challenged policy.

Cf. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 115

(2001) (“[T]o the extent we consider whether the community

would feel coercive pressure to engage in the Club’s

activities, the relevant community would be the parents, not

the elementary school children.”) (internal citation omitted).

In this case, the children who are the intended audience for

the challenged displays vary widely in age, from kindergarten

students just learning to read to high school seniors eligible to

vote. In these circumstances, we do not assume that the

“objective observer” whose perception of purpose is relevant

to our analysis is a student because not all such students are

sufficiently mature to take full account of the text, history,

and implementation of the challenged display policy.’

Instead, we assuine the objective observer is an adult who, in

taking full account of the policy’s text, history, and

implementation, does so mindful that the displays at issue will

'" We note that the trial evidence in this case focuses on the

application of the challenged holiday display policy in elementary

schools. There is no evidence as to the application of the policy in

high schools.

45a

be viewed primarily by impressionable schoolchildren. See

Edwards v. Aguillard, 482 U.S. at 583-84 (noting

schoolchildren’s impressionability); Lee v. Weisman, 505

U.S. at 597 (same).

Our dissenting colleague disagrees with this identification

of the objective observer, a disagreement that carries over

into the second prong of Lemon analysis, where the “effect”

of the challenged government action has long been tested by

reference to a reasonable observer. See Altman v. Bedford

Cent. Sch. Dist., 245 F.3d at 75 (collecting cases).”” He

concludes that a court must view the displays from the

perspective of (1) “elementary or secondary school students

in the New York City public school system,” and (2) “parents

of such students who experience the displays through and with

their children and who have knowledge of the history and

context of the policy and displays.” Post at [1]. He notes that

“we must not lose focus on who is actually the reciptent of the

message conveyed and how that message will affect such a

recipient.” Post at [11]. We agree that the intended recipient

of a display message is a factor - undoubtedly an important

factor - to be considered by the reasonable objective observer

whose perceptions determine whether the government acts

with a purpose and effect that violates the Establishment

*» There appears to be no difference in the Supreme Court’s

characterization of an “objective observer” and a “reasonable

observer” at the first two stages of Lemon analysis. Compare

McCreary County v. ACLU, 125 S.Ct. at 2734 with Capitol Square

Review & Advisory Bd. v. Pinette, 515 U.S. at 779-80 (O’Connor,

J., concurring in part and concurring in the judgment). Thus, in this

opinion we use the terms interchangeably and our reasoning in

identifying the objective observer relevant to purpose analysis

applies equally to identifying the observer relevant to effect

analysis.

46a

Clause, but we do not think the intended recipient of a display

necessarily defines the objective observer.

In reaching this conclusion, we recognize that the

reasonable objective observer standard, like other aspects of

the Lemon test, is subject to criticism. Most recently, Justice

Thomas faulted the standard for ignoring the fact that persons

of faith or of no faith may have stronger concerns about

particular government action than the model “reasonable

observer.” See Van Orden v. Perry, 125 S.Ct. at 2867

(Thomas, J., concurring). Whatever the merits of this

criticism, until the Supreme Court rules otherwise, we are not

free to discard or recast the reasonable objective observer test

in assessing the secular purpose and effect of chailenged

government action. The Court has made plain that a

reasonable objective observer must take full account of “the

text, legislative history and implementation of the statute.”

McCreary County v. ACLU, 125 S.Ct. at 2734 (internal

quotation marks omitted). Indeed, Justice O’Connor insisted

on this characterization in a case arising in the context of a

public elementary school. See Elk Grove Unified School

District v. Newdow, 542 U.S. 1, 34 (2004) (O’Connor, J.,

concurring in the judgment). In rejecting an Establishment

Clause challenge by the father of a kindergarten child to a

school policy providing for the voluntary recital of the Pledge

of Allegiance, Justice O’Connor described the relevant

reasonable objective observer as a person “fully cognizant of

the history, ubiquity, and context of the practice in question.”

Id. at 40. She concluded that “[s]uch an observer could not

conclude that reciting the Pledge, including the phrase ‘under

God,’ constitutes an instance of worship.” /d. (emphasis

added). Thus, because, as even the dissent appears to

recognize, see post at [15], young schoolchildren cannot

satisfy the requirements of an objective observer recently

specified by the Supreme Court in McCreary, we conclude

47a

that such children cannot provide the model of the objective

observer for purposes of Lemon analysis in this case.

Nor does Supreme Court precedent appear to contemplate

multiple reasonable objective observers, for example, persons

who believe in God as distinct from those who do not; child

observers as distinct from adult observers; or, as the dissent

suggests, children who practice Judaism or Is!am as distinct

from other children. See post at [22, 36] (concluding that

Jewish and Muslim students would think the challenged

displays endorsed Judaism and Islam). As Justice O’Connor

has explained, the reasonable observer standard does not

“focus on the actual perception of individual observers, who

naturally have differing degrees of knowledge.” Capitol

Square Review & Advisory Bd. v. Pinette, 515 U.S. at 779

(O’Connor, J., concurring in part and concurring in the

judgment). Instead, the standard strives to identify “a

personification of a community ideal of reasonable behavior

determined by the collective social judgment.” /d. at 780

(alteration and internal quotation marks omitted).

Mindful of this goal, we do not attempt to cast

schoolchildren of widely varying ages and religious

backgrounds in the role of one or more reasonable objective

observers. At the same time, however, we do not turn a

“blind eye” to the fact that schoolchildren are the intended

audience for the challenged displays, as the dissent suggests.

See post at [1]. We reiterate that we expect that a mature

reasonable objective observer, in noting the “context of the

community and forum” in which the challenged holiday

displays appear, would take into consideration that

schoolchildren are the intended audience for the displays, that

these children are being reared in a variety of faiths (as well

as none), and that, by virtue of their ages, they may be

48a

especially susceptible to any religious messages conveyed by

such displays.”'

With this understanding of the objective-observer

standard, we consider how two facts could affect such an

observer's perception of the defendants’ asserted secular

purpose: (1) defendants’ allowance of the menorah and the

star and crescent in school holiday displays, and (2) their

disallowance of the créche.

(b) Defendants’ Integration of the Menorah

and the Star and Crescent in School

Holiday Displays Communicates a

Secular Purpose

As already noted, defendants do not permit the menorah,

the star and crescent, or any holiday symbol to be used in

isolation in school holiday displays. See Holiday Display

Memo at | (“[A]ny symbol or decoration which may be used

must be displayed simultaneously with other symbols or

decorations reflecting different beliefs or customs). The

record evidence of holiday displays in P.S. 165, P.S. 169,

and P.S. 184, detailed in our earlier discussion of the facts,

*! In the context of discrimination cases, where there is some

tension in our case law as to whether a “reasonable person”

standard references a member of the protected class or the public

at large, see Petrosino v. Bell Atlantic, 385 F.3d 210, 221-22 (2d

Cir. 2004) (comparing cases), Judge Newman ‘ias suggested that a

reasonable person should be someone informed of “how members

of the protected class regard the challenged remarks or displays,”

Brennan v. Metropolitan Opera Ass'n, Inc. , 192 F.3d 310, 321 (2d

Cir. 1999) (Newman, J., concurring in part and dissenting in part).

The same expectation is reasonably applied to reasonable observer

analysis in the context of Establishment Clause challenges.

49a

see supra at [10-15], amply demonstrates that these

instructions are, in fact, implemented by City schools in

creating multicultural holiday displays. Thus, when menorahs

or stars and crescents are displayed, their religious

significance is appropriately neutralized by myriad

accompanying symbols of other winter holidays having

nonreligious as well as religious origins.” As a result, no

objective observer of the displays in evidence would

understand the defendants’ purpose to be other than that stated

in the Holiday Display Memo, that is, to promote

schoolchildren’s understanding and respect for the many

cultural traditions celebrated in New York City during the

winter holiday season. Certainly, no objective observer would

understand the purpose of the displays to be the endorsement

or promotion of Judaism or Islam or the denigration of

Christianity, as alleged by the plaintiff. See County of

Allegheny v. ACLU, 492 U.S. at 635-36 (O’Connor, J.,

concurring in part and concurring in the judgment); Board of

Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. at

711 (Stevens, J., concurring) (observing that “no

constitutional concerns” arise from school efforts to teach

children about minority religious customs in order to promote

respect and tolerance); West Virginia Bd. of Educ. v.

Barnette, 319 U.S. 624, 631 (1943) (distinguishing between

permissibly educating students as to meaning of flag salute

and impermissibly compelling them to “declare a belief” by

performing the salute).

For this reason, we cannot agree with the dissent that the

menorah or star and crescent displays at issue in this case present

an endorsement concern akin to that identified in Fox v, Los

Angeles, 22 Cal. 3d 792, 587 P.2d 663, 150 Cal. Rptr. 867 (1978),

a case in which an illuminated Latin cross was displayed in isolatvon

on the face of the Los Angeles city hall at Easter time. See post at

[21-22].

50a

Our dissenting colleague nevertheless concludes

otherwise. He submits that, because a Jewish or Muslim child

knows the religious significance of a menorah or star and

crescent, such a child would perceive the defendants’ real

intent to be to endorse Judaism and Islam over Christianity.

See post at [22, 36]. We cannot agree with this conclusion,

which finds no support in the record. Certainly, no trial

evidence was adduced in this case showing the effect of the

challenged holiday displays on any child, much less an effect

on Jewish and Muslim children leading them to think that

school officials favored their religions over Christianity. Cf.

McCreary v. Stone, 739 F.2d 716, 727 (2d Cir. 1984)

(declining to speculate that créche display affected children

differently from adults in the absence of record evidence),

aff'd by an equally divided court sub nom., Board of Trustees

of Village of Scarsdale v. McCreary, 471 U.S. 83 (1985) (per

curiam).

The dissent submits that no evidence is necessary on this

point because the question “‘whether a government activity

communicates endorsement of religion is. . . in large part a

legal question to be answered on the basis of judicial

interpretation of social facis.’” Post at [32-33] (quoting Lynch

v. Donnelly, 4605 US. at 693-94 (O'Connor, J., concurring)).

In any event, it submits that no evidence supports our

conclusion that an objective adult observer would perceive the

purpose and effect of the challenged displays as secular. We

disagree.

First, we note that the conclusion we reach today is

supported by both law and evidence, specifically, (1) by

Allegheny’s recognition that a menorah displayed with secular

holiday symbols can reasonably be understood to convey to an

objective observer “a message ot pluralism and freedom of

belief during the holiday season,” not a message to Jews (or

Sla

Muslims) that their religion is officially endorsed, 492 U.S.

at 635-36 (O’Connor, J., concurring in part and concurring

in the judgment); and (2) by record evidence that the -

challenged holiday display policy, as stated and implemented,

comports with Allegheny by prohibiting the celebration of any

single holiday in school displays and by requiring any holiday

symbol to be displayed in conjunction with “other symbols or

decorations reflecting different beliefs or customs.” Holiday

Display Memo at 1. Indeed, we have discussed the actual

displays in such detail, see supra at [10-15], precisely because

we think it apparent that they pass constitutional muster under

Allegheny.

Second, Justice O’Connor’s cited observation in Lynch

implies that no specific evidence is necessary to allow judges

to determine how a mature objective mind would process the

images and information conveyed by a holiday display. See

Lynch v. Donnelly, 465 U.S. at 693-94 (O'Connor, J.,

concurring); see also Elk Grove Unified Sch. Dist. v.

Newdow, 542 U.S. at 40 (O’Connor, J., concurring in the

judgment) (reviewing Establishment Clause challenge in

school context by reference to mature objective observer, not

schoolchild). But when the issue is whether an immature mind

would process the same information differently, some

evidence on that point may well be necessary to permit a

judge to conclude, as the dissent does here, that displays that

would communicate pluralism to an objective adult would

communicate religious endorsement to a Jewish or Muslim

child.

Further, the conclusion urged by the dissent as to the

impact the challenged displays would have on Jewish and

Muslim children is by no means the obvious “judicial

interpretation of [the] social facts” here at issue. See Lynch v.

Donnelly, 465 U.S. at 693-94 (O'Connor, J., concurring). It

52a

requires a court to assume not only that young Jewish and

Muslim children recognize the religious significance of their

own Chanukah and Ramadan symbols, but also that these

children are sufficiently sophisticated in Christian

iconography to understand that the myriad Christmas symbols

included in school holiday displays lack religious significance.

Absent some supporting evidence, however, it makes equal

sense to conclude that young Jewish and Muslim children

understand Christmas symbols simply as signs of a holiday

celebrated primarily by the nation’s Christian majority. In that

context, a young Jewish child seeing a menorah or a Muslim

child seeing a star and crescent included in the multicultural

holiday displays in evidence in this case, would simply

conclude that his beliefs and traditions are as respected as

those of any other group, not that they are favored or

officially endorsed. Thus, on the trial record developed in this

case, we have no reason to conclude that the Supreme Court’s

decision in Allegheny about the pluralistic message conveyed

by the inclusion of a menorah (or a star and crescent) in a

multicultural holiday display applies with any lesser force

when such a display appears in a public school rather than a

public park.

Christmas in School Holiday Displays

Through Secular Symbols Does Not

Demonstrate a Purpose Hostile to

Christianity

No different conclusion is warranted by the defendants’

decision not to permit a créche or nativity scene to represent

Christmas in school holiday displays. Indeed, Justice

O’Connor’s concurring opinion in Allegheny concluded that

the government's decision to use secular symbols to represent

Christmas in a multicultural holiday display that used a

53a

purpose of the display was to communicate pluralism rather

than to endorse religion, whether Judaism or Christianity. See

County of Allegheny v. ACLU, 492 U.S. at 636 (O’Connor,

J., concurring in part and concurring in the judgment); see

also Elewski v. City of Syracuse, 123 F.3d at 58 (Cabranes,

J., dissenting) (noting that “secular context and a message of

pluralism” was what “enabled the menorah/Christmas tree

display in Allegheny to survive constitutional scrutiny”).

As we noted at the outset of this opinion, we do not here

decide whether there are any circumstances in which the

defendants could constitutionally include a créche in a public

school holiday display. Nor do we ignore the possibility that,

in some circumstances, a government’s deliberate exclusion

of the religious symbol of one faith from a display that

includes the religious symbols of other faiths could

communicate the official favoritism or hostility among

religious sects that is prohibited by the Establishment Clause.

See generally School Dist. v. Schempp, 374 U.S. 203 at 305

(Goldberg, J., concurring) (noting that government must

“effect no favoritism among sects”); accord Van Orden v.

Perry, 125 S.Ct. at 2868 (Breyer, J., concurring in the

judgment). We hold only that where, as in this case,

defendants permissibly include a religious symbol in a holiday

display that unquestionably serves the secular purpose of

pluralism, the Establishment Clause does not necessarily

demand that they employ a religious symbol for every holiday

that has a religious as well as a secular component.

This court has recognized that when “government

endeavors to police itself and its employees in an effort to

avoid transgressing Establishment (tause limits, it must be

accorded some leeway, even though the conduct it forbids

might ‘mt inevitably be determined to violate the

54a

Establishment Clause.” Marchi v. Bd. of Coop. Educ. Servs.,

173 F.3d 469, 476 (2d Cir. 1999); see Walz v. Tax Comm’n,

397 U.S. at 669 (observing that, short of “governmentally

established religion or governmental interference with

religion,” the First Amendment allows some “room for play

in the joints productive of a benevolent neutrality”); see also

Locke v. Davey, 540 U.S. 712, 718 (2004) (reiterating Walz’s

recognition of “room for play in the joints”). In this case, the

Chancellor’s general counsel, in an affidavit submitted to the

district court, explained that, to ensure compliance with the

Establishment Clause, the DOE’s holiday display policy seeks

to avoid the use of any holiday symbols that depict deities.

See Vignola Aff. at 5, ¢ 16. A nativity scene undoubtedly

qualifies as the depiction of a deity, with the infant Jesus

usually being worshiped as God-made-man by adoring angels,

shepherds, and wise men. While a menorah is understood to

commemorate a miracle performed by God, it does not itself

depict a deity. Nor does the star and crescent. This is not to

suggest that the menorah (or the star and crescent) is a less

religious symbol than the créche. See Allegheny County v.

ACLU, 492 U.S. at 633-34 (O'Connor, J. concurring in part

and concurring in the judgment) (recognizing menorah as “the

central religious symbol and ritual object” of Chanukah,

which, like the créche, could convey a message of

endorsement when standing alone).”* It simply recognizes that

the créche conveys its religious message more

5 We nced not - and therefore do net - attempt to determine

the relative religious significance of the menorah, the star and

crescent, or the créche to Judaism, Islam, and Christianity. To the

extent the dissent ascribes any such conclusion to the couré, see post

at [18-19], it is mistaken. Our concern is not the religious

significance of these symbols to particular faiths, but the symbols’

perceived endorsement of religion, generally or specifically, in the

context of the challenged school holiday display policy.

55a

representationally and !css symbolically than the menorah and

the star and crescent. For this reason, the religious

significance of a créche may be more obvious to the average

schoolchild than that of the menorafi and the star and

crescent. Thus, whether or not the defendants’ exclusion of

the créche is constitutionally mandated, an objective observer

would recognize that the distinction drawn by the

Chancellor’s counsel reflects a sincere “effort to avoid

transgressing Establishment Clause limits,” Marchi v. Bd. of

Coop. Educ. Servs., 173 F.3d at 476, and not a religious

purpose to endorse Judaism or Islam.

Indeed, that conclusion is reinforced by the fact that the

Christian holiday of Christmas is well represented in the

City’s school holiday displays through a variety of well

recognized and beloved symbols, including the Christmas

tree, Santa Claus, reindeer, candy canes, gingerbread boys

and girls, tinsel garlands, strings of lights, not to mention

Christmas wreaths, candles, stars, and presents.’ To the

extent these Christmas symbols shared classroom, lobby, and

hali space with snowmen, snowflakes, menorahs, dreidels,

kinaras, and, on one occasion, a star and crescent, no

** Some of these Christmas holiday symbols have or have had

religious connotations. For example, the Christmas star that tops

many Christmas trees recalls the star of Bethlehem that announced

Christ’s birth to the Magi. See Matthew 2:2. Christmas presents

evoke the gifts of gold, frankincense, and myrrh given to Christ by

the Magi. See Matthew 2:11. Christmas candles represent Christ as

a light coming into a world of darkness. See John 1:5. As for Santa

Claus, he was Saint Nicholas before Thomas Nast and Clement

Moore replaced his bishop’s miter and crozier with a sack full of

toys and a team of reindeer. All these items are now widely

accepted as secular symbols of a holiday that is celebrated even by

people of no faith.

56a

objective observer would understand defendants’ purpose to

be to denigrate Christianity. Indeed, that argument is

conclusively refuted by the instructional cards used by the

defendants in some elementary school classrooms. See supra

at [14-15]. As our earlier quotation of the text of these cards

demonstrates, they afford equally respectful treatment to the

religious origins of Christmas, Chanukah, and Ramadan, as

well as the secular origins of Kwanzaa. The Christmas card

even alludes to the Christian tradition of erecting nativity

scenes.

In sum, even if the DOE erred in characterizing the

menorah and the star and crescent as “secular” symbols, and

whether or not the DOE is correct in its assessment that the

créche would be more difficult than the menorah or the star

and crescent to incorporate into a secular holiday display in

New York City public schools, no reasonable objective

observer would perceive from the totality of the circumstances

in this case that the purpose of the challenged display policy

was, in fact, to communicate to City schoolchildren any

official endorsement of Judaism and Islam or any dismissal of

Christianity. Accordingly, we conclude, as did the district

court, that the defendants satisfy the first prong of the Lemon

test because the actual and perceived purpose of the DOE

holiday display policy is secular: to use holiday celebrations

to encourage respect for the City’s diverse cultural traditions.

In the next section of this opinion, we consider whether,

despite this secular purpose, the DOE holiday display policy

nevertheless has the impermissible effect of endorsing

Judaism or Islam or inhibiting the practice of Christianity.

S7a

b. Primary Effect

The second prong of the Lemon test mandates that the

“principal or primary effect” of the challenged government

action “must neither advance nor inhibit religion.” Commack

Self-Serv. Kosher Meats, Inc. v. Weiss, 294 F.3d at 430.

When applied to holiday display challenges, this analysis is

“highly fact-specific,” asking: “Would a reasonable observer

of the display in its particular context perceive a message of

governmental endorsement or sponsorship of religion?”

Elewski v. City of Syracuse, 123 F.3d at 53 (emphasis added);

accord Altman v. Bedford Cent. Sch. Dist., 245 F.3d at 75.

(1) The Endorsement Test

As Justice O’Connor, the principal architect of the

“endorsement test,” explained in Allegheny, the concept of

endorsement is not limited to government coercion or efforts

at proselytization; it is intended to take account of “the

numerous more subtle ways that government can show

favoritism to particular beliefs or convey a message of

disapproval to others.” 492 U.S. at 627-28 (O’Connor, J.,

concurring in part and concurring in the judgment).” The

endorsement test does not require courts to “sweep away all

* In Capitol Square Review & Advisory Board v. Pinette, 515

U.S. 753, members of the Court divided on the question whether

endorsement analysis was properly applied only to government

speech, compare id. at 763-70 (plurality opinion) (Scalia, J.)

(concluding that endorsement test should be limited to government

speech or discrimination) with id. at 786-92 (Souter, J., concurring

in part and concurring in the judgment) (rejecting plurality’s view

of scope of endorsement test). We need not address this issue

because the parties do not contest that the challenged actions here

at issue represent government speech.

58a

government recognition and acknowledgment of the role of

religion in the lives of our citizens.” /d. at 623; see id. at 631

(“[G]overnment can acknowledge the role of religion in our

society in numerous ways that do not amount to an

endorsement.” (emphasis in original)). Rather, it seeks to

ensure that government does “not make a person’s religious

beliefs relevant to his or her standing in the political

community,” id. at 627, thereby sending “a message to

nonadherents that they are outsiders, not full members of the

political community, and an accompanying message to

adherents that they are insiders, favored members of the

political community,” Lynch v. Donnelly, 465 U.S. at 688

(O’Connor, J., concurring).

Like the “objective observer” whose perception of

purpose is at issue at the first step of Lemon analysis, the

“reasonable observer” employed in the endorsement test, see

Altman v. Bedford Cent. Sch. Dist. , 245 F.3d at 75 (collecting

cases), is not a particular individual, but “‘a personification

of a community ideal of reasonable behavior,’” Capitol

Square Review & Advisory Bd. v. Pinette, 515 U.S. at 780

(O’Connor, J., concurring in part and concurring in the

judgment) (quoting W. Keeton, et al., Prosser and Keeton on

Law of Torts 175 (Sth ed. 1984)). A court reviewing an

Establishment Clause challenge to a particular holiday display

is not required to ask “whether there is any person who could

find an endorsement of religion, whether some people may be

offended by the display, or whether some reasonable person

might think }the State] endorses religion.’” /d. (quoting

Americans United for Separation of Church and State v.

(erohasis in original)). Rather, it considers whether a

“reasonable observer . . . aware of the history and context of

the community and forum in which the religious display

appears,” would understand it to endorse religion or, in this

59a

case, one religion over another. /d.; see also Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. at 40 (O’Connor, J.,

concurring in the judgment).

(2) Applying Endorsement Analysis to Public

Schools

When, as in this case, we apply endorsement analysis to

a policy that operates throughout a city’s public elementary

and secondary schools, special concerns arise in the

identification of a reasonable observer. As we noted in

discussing a similar ideal observer whose perception of

purpose was relevant at step one of the Lemon analysis, it

makes no sense at the effect step to view a kindergarten child

or first grader as someone “fully cognizant of the history,

ubiquity, and context of the practice in question,” Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. at 40 (O’Connor, J.,

concurring in the judgment), even if certain high school

students may fit this description, see Santa Fe Ind. Sch. Dist.

v. Doe, 530 U.S. at 308. Because of the range of the students

to whom the challenged display pouicy applies, we conclude

that the relevant objective observer, whether with respect to

purpose or effect, is an adult who is “aware of the history and

context of the community and forum in which the religious

display appears,” Capitol Square Review & Advisory Bd. v.

Pinette, 515 U.S. at 780 (O’Connor, J., concurring in part

and concurring in the judgment), and who understands that

the display of a religious symbol in a school context may raise

particular endorsement concerns, because of the pressure

exerted on children by the “law of imitation,” //linois ex rel.

McCollum v. Bd. of Educ. , 333 U.S. at 227 (Frankfurter, J,

60a

concurring) (observing that “nonconformity is not an

outstanding characteristic of children”).”°

The latter concerns do not mean that the Constitution

prohibits public schools from making any mention of religion

when teaching a secular lesson about pluralism and tolerance.

See Stone v. Graham, 449 U.S. at 42 (recognizing that Bible

may be used “in an ap»ropriate study of civilization, ethics,

comparative religion, or the like”); School Dist. of Abington

Twp. v. Schempp, 374 U.S. at 225 (recognizing Bible as

“worthy of study for its literary and historic qualities . . . as

part of a secular program of education”); accord Altman v.

Bedford Cent. Sch. Dist., 245 F.3d at 76. As Justice Jackson

observed, if that were the rule, “public education [would be

left] in shreds.”

Music without sacred music, architecture minus the

cathedral, or painting without the scriptural themes

would be eccentric and incomplete, even from a

6 In a number of cases, the Supreme Court has noted that

Establishment Clause analysis can yield different results depending

on whether challenged conduct occurs within a public school or m

some other setting. Compare Stone v. Graham, 449 U.S. at 42-43

(holding unconstitutional state law requiring Ten Commandments

to be posted in every public school classroom) with Van Orden v.

Perry, 125 S.Ct. at 2864 (serecting constitutional challenge to Ten

Commandments display on state capitol grounds); compare also Lee

v. Weisman, 505 U.S. at 598-99 (holding prayer at secondary

school graduation to be unconstitutional) with Marsh v. Chambers,

463 U.S. 783, 793-95 (1983) (upholding prayer in state legislature).

See also County of Allegheny v. ACLU, 492 U.S. at 620 n.69

(opinion of Blackmun, Jj.) (noting that combined Christmas tree and

menorah display “might raise additional constitutional

considerations” if display were “located in a public school”).

6la

seculai point of view. . . . Certainly a course in

English literature that omitted the Bible and other

powerful uses of our mother tongue for religious ends

would be pretty barren. And | should suppose it Is a

proper, if not an indispensable, part of preparation for

« worldly life to know the roles that religion and

religions have played in the tragic story of mankind.

The fact is that, for good or for ill, nearly everything

in our culture worth transmitting, everything which

gives meaning to life, is saturated with religious

influences, derived from paganism, Judaism,

Christianity - both Catholic and Protestant — and other

faiths accepted by a large part of the world’s peoples.

One can hardly respect a system of education that

would leave the student wholly ignorant of the

currents of religious thought that move the world

society for a part in which he is being prepared.

Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. at 235-36

(Jackson, J., concurring); see also Edwards v. Aguillard, 482

U.S. at 607, 608 n.8 (Powell, J., concurring) (noting that

“since religion permeates our history, a familiarity with the

nature of religious beliefs is necessary to understand many

historical as well as contemporary events,” citing “political

controversies in Northern Ireland, the Middle East and India”

as examples of world events that “cannot be understood

properly without reference to the underlying religious beliefs

and the conflicts they tend to generate”). Where the Supreme

Court has demanded vigilance is in ensuring that public

schools do not appear to endorse religious creed and do not

employ religious rituals and ceremonies in school activities.

See, e.g., School Dist. of Abington Twp. v. Schempp, 374

U.S. at 226-27 (declaring daily prayer in public school

unconstitutional); see also Lee v. Weisman, 505 U.S. at 598-

62a

99; Stone v. Graham, 449 U.S. at 42-43; Lemon v. Kurtzman,

403 U.S. at 619.

(3) The DOE Holiday Display Policy Does Not

Endorse or Inhibit Religion

In applying these principles to this case, it is important to

note that the challenge at issue does not concern a single

public display, as in most cases that have come before the

courts. See, e.g., McCreary County v. ACLU, 125 S.Ct.

2722; County of Allegheny v. ACLU, 492 U.S. 573; Elewski

v. City of Syracuse, 123 F.3d 51. Rather, its focus is a policy

intended to ensure that thousands of holiday displays created

annually for New York City’s public school classrooms,

hallways, and lobbies comport with the First Amendment’s

religion clauses. The displays are obviously all on public

property and are publicly funded. Further, the schoolchildren

for whose benefit these displays are created have no option

but to view them and, sometimes, to participate in the craft

projects that are integral to many of the displays.’’ Having

27 Because Skoros did not ask to have her children excused

from any project or assignment relating to a holiday originating in

a religious tradition other than her own, we have no occasion to

consider whether a school would have to honor such a request when

the purpose of the project -- to teach cultural diversity -- comported

with the First Amendment. Cf. West Virginia Bd. of Educ. v.

Barnette, 319 U.S. at 631 (distinguishing between school

permissibly making students “acquainted with the flag salute so that

they may be informed as to what it is or even what it means” and

unconstitutionally compelling students “to declare a belief” by

performing the salute); Leebaert v. Harrington, 332 F.3d 134, 140-

42 (2d Cir. 2003) (rejecting claim of parental right to have son

excused from school health course that conflicted with parent’s

religious beliefs regarding morality: parental right to decide not to

63a

carefully reviewed the record, we nevertheless conclude, as

the district court did, that a reasonable observer would not

understand the challenged holiday display policy, either on its

face or as applied, to endorse Judaism or Islam or to

communicate to children who practice either of those faiths

that they are favored members of their school and civic

communities, while communicating to Christian children or

others that they are somehow inferior.

As previously noted in our discussion of purpose, the

challenged DOE policy specifically states that no school

display may appear to promote any single religion or holiday.

The record evidence demonstrates that this directive is

carefully observed in the City schools. The photographic

exhibits confirm the district court’s finding that defendants’

2001-2002 holiday displays afforded City schoolchildren a

“dizzying array” of seasonal symbols, Skoros v. City of New

York, 2004 U.S. Dist. LEXIS 2234, at *42, allowing each

student to find some familiar symbol (whether a Christmas

tree, a menorah, a kinara, a star and crescent, or simply a

cheerful snowman or lacy snowflake) with which to identify,

while at the same time exposing the child to less familiar

symbols from which he could learn about cultures and

send child to public school did not encompass a right to dictate the

curriculum at the public school to which the parent did send the

child). Plainly, defendants could not devise a holiday project that

required a child to participate in a religious ritual. See, e.g., Lee v.

Weisman, 505 U.S. at 598-99 (holding that requiring students to

stand for graduation prayer constituted compelled participation in

religious ritual); accord Santa Fe Indep. Sch. Dist. v. Doe, 530

U.S. at 312; cf. Altman v. Bedford Cent. Sch. Dist., 245 F.3d at 80

(rejecting constitutional challenge to Earth Day program in which

students were not required to participate). That concern, however,

is not present in this case.

64a

traditions different from his own. Of the various holiday

symbols depicted in the display photos, the menorah (and

perhaps the star and crescent) might appear to a reasonable

adult observer to have the most religious significance. But

such an objective observer would readily perceive from the

instructional cards used in certain classrooms that the

defendants treated the religious and secular origins of all

winter holidays celebrated in school displays with equal

respect. More important, the observer would see that the

menorah and the star and crescent, when used in holiday

displays, always shared space with a multitude of secular

symbols so that even the youngest elementary schoolchild

would understand that the message being conveyed was not

the endorsement of Judaism or Islam but a recognition of the

diversity of winter holiday celebrations among different

cultures. See Van Orden v. Perry, 125 S.Ct. at 2869 (Breyer,

J., concurring in the judgment) (emphasizing that, whether a

religious text or symbol conveys a religious or secular

message requires court to “examine how the text [or symbol]

is used” in the context of the display) (emphasis in original);

County of Allegheny v. ACLU, 492 U.S. at 635 (O’Connor,

J., concurring in part and concurring in the judgment)

(concluding that menorah displayed with Christmas tree and

sign saluting liberty “did not endorse Judaism or religion in

general, but rather conveyed a message of pluralism and

freedom of belief during the holiday season”); Elewski v. City

of Syracuse, 123 F.3d at 55 (holding that reasonable observer

would perceive créche in context of overall holiday

decorations not as an endorsement of Christianity but as a

“celebration of the diversity of the holiday season”). In short,

an objective observer would conclude that the effect of

displaying the menorah and star and crescent, together with

Christmas trees, Christmas wreaths, candles, stars, Kinaras,

snowmen and a host of other holiday symbols in integrated

holiday displays was simply to familiarize schoolchildren with

the fact that all these symbols are used by certain members of

the community to celebrate holidays at the end of the calendar

year, that the various traditions reflected in these holidays are

entitled to everyone's respect, and that the diversity of these

traditions enriches the community for all members. Nothing

in the record would indicate to an objective observer that the

effect of displaying the menorah and the star and crescent

would be “to induce the schoolchildren . . . to venerate” these

objects or to accept the religious creeds of Judaism and Islam

as officially endorsed by the state. Stone v. Graham, 449

U.S. at 42.

To the extent our dissenting colleague concludes that

Jewish and Muslim children would understand the holiday

displays to favor their religions over Christianity, we reject

that conclusion for reasons already noted tn our discussion of

purpose, see supra at [44-45]; specifically, it has no support

in the record and, therefore, is at odds with County of

Allegheny v. ACLU, 492 U.S. at 635 (O’Connor, J.,

concurring in part and concurring in the judgment). We

simply cannot agree that a Jewish or Muslim child who saw

menorahs and stars and crescents included in December

holiday displays that invariably also showed Christmas trees,

Christmas stars, Christmas candles, Christmas stockings,

Christmas lights, and Christmas wreaths, would be apt to

conclude that school officials favored his religion over

Christianity.

We expect that the real Establishment Clause challenge for

the defendants in developing the holiday display policy at

issue was not that Jews and Muslims would infer from the

inclusion of a few menorahs or stars and crescents amidst a

panoply of Christmas symbols that their particular religions

were favored by the state, but that nonbelievers might infer

from the celebration of three holidays with religious

664

significance that the state generally favored religion. It ts

obvious both from the stated holiday display policy and the

trial evidence demonstrating its implementation that the

defendants have been conscientious in signaling otherwise:

celebrating Kwanzaa and the winter season generally along

with Christmas, Chanukah, and Ramadan; focusing generally

on the secular aspects of the religious holidays; and limiting

holiday symbols with religious significance to those that did

not depict a deity and, in the case of the menorah, had come

to achieve general public recognition as ihe accepted symbol

of the Chanukah holiday in multicultural holiday displays. As

a result of these efforts, we can conclude, as the district court

did, that any reasonable objective observer would perceive the

effect of DOE holiday displays, even on young

schoolchildren, to be a celebration of pluralism, not an

endorsement, general or specific, of religion.

Whether the secular message of respect for diverse

cultures could be conveyed as effectively without use of the

menorah or the star and crescent is not constitutionally

significant. See Lynch v. Donnelly, 465 U.S. at 682 n.7

(rejecting as “irrelevant” dissenters’ argument that city’s

secular objectives could have been achieved without including

créche in holiday display); accord County of Allegheny v.

ACLU, 492 U.S. at 635-36 (O'Connor, J., concurring in part

and concurring in the judgment) (noting that endorsement

conclusion did not depend on whether city had a more secular

alternative to the menorah to represent Chanukah). An

objective observer, seeing that school displays included

menorahs together with kinaras and Christmas candles

(among many other holiday symbols) would reasonably

conclude that the message of pluralism was being conveyed to

young children simply by showing them that different

traditions, whether religious or not, light candles, sometimes

in special candelabra (Chanukah and Kwanzaa), sometimes as

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a Single light (Christmas), to celebrate holidays. The very fact

that the Kwanzaa candelabrum has no religious significance

would allow schools to use it together with the menorah to

communicate this secular message without risk of religious

endorsement. See id. at 635-36 (observing that use of

Christmas tree, a secular symbol, together with menorah

confirmed that the message conveyed by the display was

pluralism, not endorsement of religion). School displays

further communicated a message of diversity and tolerance by

showing children the gift-giving traditions and special food

customs that were common features of various winter holiday

celebrations. In sum, any reasonable observer would readily

appreciate from the diverse holiday displays created pursuant

to the DOE policy that no symbol was employed to endorse

or denigrate any religious belief. Rather, the displays

acknowledged the rich cultural diversity of New York City,

permitting ail children to feel included in some way in the

holiday season while simultaneously teaching all children to

understand and respect traditions and cultures different from

their own.

The fact that the creche might, in some contexts, also be

used to communicate this secular message of pluralism, see

Lynch vy. Donnelly, 465 U.S. at 680-81; Elewski v. City of

Syracuse, 123 F.3d at 55, does not mean that a reasonable

observer would interpret the defendants’ decision not to

include this particular Christmas symbol as a sign of

disapproval of Christianity. As we indicated in our discussion

of purpose, we afford the government some leeway in

policing itself to avuid Establishment Clause issues, even if it

thereby imposes limits that go beyond those required by the

Constitution. See Marchi v. Bd. of Coop. Educ. Servs., 173

F.3d at 476; see also Lacke v. Davey, 540 U.S. at 718; Walz

v. Tax Comm'n, 397 U.S. at 669. We presume that a

reasonable observer, “aware of the history and context of the

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community and forum in which the religious displays

appears,” Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. at 780 (O’Connor, J., concurring in part and

concurring in the judgment), would recognize this fact as well

as the considerable litigation that, perhaps unfortunately,

appears to be routinely triggered by public créche displays.

He would know that, at the same time that many devout

Christians use créches to commemorate the religious miracle

of Christmas, these Christians and countless nonbelievers also

share in the numerous secular traditions of the Christmas

holiday, including the decoration of Christmas trees. He

presumably would know that the Supreme Court had

approved a holiday display in which Christmas was

represented by a Christmas tree and Chanukah by a menoran

to convey the permissible secular message of pluralism. He

would recognize that menorahs had increasingly come to be

used together with Christmas trees in secular public holiday

displays throughout the City. Mindful of these circumstances,

a reasonable observer would not think that a decision to

disallow the créche from school holiday displays but to

recognize Christmas with a Christmas tree and a host of other

secular symbols for this holiday signaled disapproval of the

Christian religion or government endorsement of religion,

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