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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

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,

V.

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

i
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.

il
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

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Pastees 00 Ge PROCOCGMNS . «we te ewes

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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 ..........

iV

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

Vv
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

vi

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

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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.
I.

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).

2

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

3

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.

4

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

3

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.

6

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.

7

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.

8

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).

9

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.

10

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

1]

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).

12

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

13

(“[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).

14

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).

15

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.

16

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

17

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.)).

18

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

19

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

20

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

la

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Docket No. 04-1229-cv

[Filed May 25, 2006]

SKOROS

V.

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

2a

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

3a

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, )
)
)
)

7.

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.

4a

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

Sa

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.

6a

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).

Ta

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.

8a
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.

9a

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

3

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.

9

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

10

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

7

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 sho

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1369%3A1. Public record. Not legal advice.