Appendix — Stratechuk v. Board of Education

APPENDIA

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Jpinion/ Judgement, United Stat

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APPENDIX A

PRECKDIENTIAI

UNPPED STATES COURT OF APPEALS

FOR THE THIRD CIRCUFI

No. 08-3826

iriled November 24, 2009]

MICHAEL STRATECHIURBK,

Individually and on behalf of Ii

minor children

\ppellant

BOARD OF EDUCATION, SOUTH

ORANGE-MAPLIEWOOD SCHOO!

DISTRICT: BRIAN Fo OTLEARY,

[n his official capacity as board

president, Board of Education, South

Orange-Maplewood School District;

PETER P. HOROSHAK, In his official )

capacity as superintendent, South

Orange-Maplewood School District

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-04-cv-06189)

District Judge: Honorable William H. Wall

Argued september 14, ZO09

Vefore: SLOVITER, FUENTES, and

SOMEPTH, Circuit Judge:

Chnstopher A. Ferrara

American Catholic Lawyers Association, In

Mairheld, NJ 07004

Kobert J. Muise (Argued)

Jhoma: More Law ( rent I

Ann Arbor, Mi 4%106

Attorneys for Appellant

Michael Fk. O'Neill (Argued)

Purcell, Kies, Shannon, Mulcahy & O'Neill

lsedminster, NJ 07921

Attorney lor Appellee

Itobert 1K. Hoffman (Argued)

Kickert, Seamans, Cherin & Mellott

Harnsburgh, PA 1710]

Attorney for Amici Anti-Defamation League,

Jewish Congress, Jewish Council for Public Affairs,

American Jewish Committee, National Council of

ar VV |} h) Women

OPINION OF THE COURT

SLOVITER, Circuit Judge

The issue before us is whether a School] District, in

order to maintain a policy of complete relgious

neutrality, may prohibit celebratory religious music at

school-sponsored events. The District Court, in a

careful analysis of the facts on record and the

applicable law, upheld the School District's discretion

to maintain and enforce its policy. Stratechuk v. Bd. of

Kduc., S. Orange-Maplewood Sch. Dist., 577 ¥. Supp

2d 731 (O.N.Jd. 2008)

The unsuccessful plaintiff, Michael Stratechuk, the

father of two students in the School District of South

Orange-Maplewood, New Jersey (“School District”),

appeals the District Court’s grant of summary

judgment in favor of the School District (and related

defendants) on Stratechuk’s claims filed pursuant to

42 U.S.C. § 1983, that the School District’s policy on

the performance of religious holiday music violates the

Kstablishment Clause and his children’s’ First

Amendment “right to receive information and ideas,

night to learn, and right to academic freedom.” /d. at

1A9

actual and Procedural Background

Policy 2270, “Religion in the Schools” (“Policy

2210"), was adopted on Apnil 2, 200], by the South

4a

Orange-Maplewood Board of Education. It provided

that

It is the goal of the {School District] to foster

mutual understanding and respect for the right

of all individuals regarding their beliefs, values

and customs. In pursuing this’ goal, we

recognize that we serve a diverse community

with varying cultural, ethnic and religious

onentation

We are cognizant of the role of culture,

including religion, in the development of our

society and beheve that objectively teaching

about religion and its role in the social and

historical development of civilization does not

violate the religious neutrality of the public

; chools

Music, art, literature, dance and drama along

with religious customs and traditions, which

have come to us from various elements of our

national population, may be used to broaden our

pupils’ awareness of the many elements that

comprise our diverse American culture

In any reference to religion in the schools, the

district is guided by the following concepts when

determining the appropriateness of activities

(1) the activity should have a secular purpose,

(2) the activity should neither advance nor

inhibit religion, and (3) the activity should have

relevance to the curriculum

Da

On the issue of the “Il'reatment of Religion in the

Curriculum,” Policy 2270 permitted the “inclusion of

religious literature, music, drama, dance and visual

arts in the curriculum provided that it achieves

specific goals of the written curriculum in the various

fields of study; that itis presented objectively; and that

it neither inhibits nor advances any religious point of

view.” App. at 365. It also permitted student-initiated

expression of “rehgious belief or non-belief in

compositions, works of art, music, speech and debate.”

App. at 365. Policy 2270 permitted the use of religious

symbols only “to teach about historical or cultural

context, not to promote or celebrate religious concepts,

events or holidays.” App. at 365

As most relevant to this appeal, the section,”

Treatment of Religious Holidays in Classrooms, School

isuildings, Programs or Concerts,” provided:

1. Rehgious holidays are not to be celebrated in

the schools, except in the form of the secular

nature of that holiday. However, opportunities

to learn about cultural and religious traditions

should be provided within the framework of the

curriculum. Information about religious and

cultural holidays and traditions, focusing on

how and when they are celebrated, their origins

and histones may be part of this instruction.

2. In planning school activities related to the

teaching about religious holidays or themes,

special effort must be made to ensure the

activity is not devotional and that pupils of all

faiths and beliefs can join without feeling they

are betraying their own faith or beliefs.

Pd

3. Decorations with religious significance are

not permitted

ba

4. Religious music, like any other music, can

only be used if it achieves specific goals of the

music curriculum.

a. Music programs prepared or presented by

student groups as an outcome of the

curriculum shall not’ have a_=e religious

orientation or focus on religious holidays

App at 366

Prior to the 2004-2005 academic year, holiday

music (Christmas and Hanukkah songs) were

performed at the School District’s December concerts.

In the Fall of 2003, the mother of a School District

student told her child’s music teacher, William Cook,

that she objected to her daughter playing the

“Christmas Sing Along” at the December concert. App.

at 77. Cook recounted this concern to Nicholas

Santoro, the Director of Fine Arts, who passed the

concerns on to James Memoli, the Assistant

Superintendent

In any event, the music repertoire of the December

2003 concert included “Star Spangled Banner,”

“Sounds of Hanukkah (a medley of 3 Hanukkah

tunes),” “Recuerdos de la Alhambra,” and_ the

“Christmas Sing Along” which was a medley of “Joy to

the World,” “Silent Night,” “Oh, Come All Ye Faithful,”

and “Hark the Herald Angels Sing.”

After that concert, the objecting mother sent a

letter to Peter Horoschak, the Superintendent of the

School District, “expressling her] concern that the

School Board policy was not followed” because “point

4(a) lof Policy 2270) clearly states ‘Music programs

prepared or presented . shall not have a rehgious

ta

orientation or focus on religious holidays.” App. at

181. The letter continued, “laJls you know, the

selection of music, both instrumental and vocal, had a

clear religious orientation and focused on religious

holidays.” App. at 181-82. Horoschak responded, “[iJt

was our judgment that because of the variety of both

secular and ‘holiday’ (.e., Hanukkah and Christmas)

selections ... there was not one particular focus on a

particular rehgion or religious group, and, as such,

there was no attempt to advance any religious point of

view. App. at 183. However, he also noted that

“concerns raised by parents regarding the holiday

concert at South Orange Middle School suggest that

the policy needs further clarification,”’ and that

Memolh and Santoro “are engaged in on-going

discussions about such musica! programs, and they

will recommend to me_ suggested language for

regulations which should clarify what types of

programs and activities are permissible and not

permissible under this policy.” App. at 183

On March 24, 2004, the School Board addressed ‘lie

December concert issue at Horoschak’s annual

performance review, and, according to Horoschak’s

deposition testimony, the “board members had heard

from some community members about instrumental

music that... people felt represented a celebration of

Christmas holidays and also there hald] been

The District Court noted that Horoschak “had a peneral

recollection of parents’ [sic] expressing similar concerns [about]

the December concerts during the time period between 1998 and

2003, although he could not remember any specific instance other

than one where a Mushm parent raised concerns that his/her faith

was not represented during the concert.” Stratechuk, 577 F.Supp

2d at 734-35 n.]

oa

discussion about the fact that you really can’t balance

all religious groups in these representations in these

types of performances.” App. at 166. The Board

decided “that [Policy 2270] would be consistently

implemented .. . [so] that there wouldn’t be so much

discretion ... by every faculty member,” and discussed

drafting regulations to clarify the policy. Stratechuk,

577 F. Supp. 2d at 735

After meeting with relevant faculty and staff,

Santoro issued a memo to the Department of Fine

Arts, dated October 29, 2004 (“October 2004 Memo”)

It stated that the “board policy, as itis written, will be

implemented,” and included the following bullet

points

11.] All programs will be reviewed and

approved by me

[2.| We will avoid any selection which is

considered to represent any religious

holiday, be it Christmas, Hanukkah, etc.

This holds true for any vocal or

instrumental setting.

[3.] I would strongly suggest you’ pear

towards the seasonal selections — Winter

Wonderland, Frosty ‘The Snowman, etc

Music centered on Peace is also a nice

touch

14.] Kor the High Schoo}, the Brass Ensemble

repertoire must also acnere to this policy,

so the traditional carols must be

eliminated from the repertoire.

[5.] The MKIL {sic} Gospel Choir cannot

perform at the CHS Holiday Assembly

for the student body

Ga

16.) Your printed programs for any Holiday

concert must avoid graphics which refer

to the holidays, such as Christmas Trees

and dreidels

App. at 249

In response to the October 2004 Memo, there were

complaints from, inter alia, music teachers, parents,

the South Orange Village President, ana

representatives of the MLK Gospel Choir. — For

example, seventeen members of the Maplewood

community signed a “Petition Asking the Board of

Mducation to Honor Religious Tolerance.” App. at 250

Other complaints were more vigorous

However, as Cook explained in his deposition

testimony, Policy 2270 “didn’t prohibit all religious

music” in performances, only “music based on .. . or

themes consistent with pieces commonly associated

with the holiday at the time of the holiday.” App. at

92. Accordingly, Santoro approved the performance of

Vivaldi’s Gloria in Excelsio (Cum sancto § spiritu)

because “|t}he program does not have a religious

orientation and it does not refer toa holiday... .” App

at 370.

In addition, Policy 2270 and the October 2004

Memo were interpreted to prohibit) only the

performance of ceiebratory holiday music — not the

teaching of such music in particular or of religious

music in general. For example, Santoro testified that

“tiln performance fof the winter] concerts those

selections |i.e., Joy to the World, Oh, Come All Ye

faithful, Hark, the Herald Angels Sing, and Silent

Night] would not be allowed,” although “liln the

10a

curriculum they would be allowed to be taught.” App

at 133. He amplified that point in a letter to music

teacher Barbara Eames stating that she could

continue to “teach about the different holidays in .

music classes” because “|c]lassroom work is not a

‘program, ’” within the meaning of Policy 2270. App. at

369. Although Eames contended in a declaration to

the District Court that the October 2004 Memo “has

caused me to exclude certain music pieces that I would

have used to achieve specific goals of the music

curriculum” and “has caused me to censor my music

curriculum .In a way that | believe is harmful to

Imy students’] education and contrary to the goals of

the music curriculum,” App. at 391], she conceded in

her deposition testimony that “I haven't removed

(Christmas or Chanukah songs] from my classroom

curriculum because the policy does not do that,” App

at 310

‘The music performed at the 2004 December concert

(approved by Santoro) included “Jingle Bell Rock,”

Vivaldi’s “Gloria,” “Winter Wonderland,” “Hava

Nagila,” “Madrigal of the Bells,” “Rudolph the

Kted-Nosed Keindeer,” and “Frosty the Snowman.”

since 2004, songs with religious content have been

performed at the December concerts; the 2005 concerts

included “Concerto VIII Fatto per la notte di natale,”

“Waters of Babylon (psalm 137),” “Jubilate,” and

“Agnus Det/Cum Sanctts.’

On December 17, 2004, Stratechuk filed this action

pursuant to 42 U.S.C. § 1983 in the United States

District Court for the District of New Jersey (and later

an amended complaint) naming as defendants the

School District, its Board of Education, the Board

President and Superintendent Peter ?. Horoschak

lla

(together, “School District”).“ The Complaint alleged

that during “the 2004/2005 school year . . . Defendants

created, adopted, and implemented a strict policy of

banning all religious music, including instrumentals,

from the public schools in the district,” such that

“students . .. are no longer permitted to learn about,

listen to, and participate in the presentation of

traditional Christmas music during such curricular

and co-curricular events as year-end holiday concerts,

assemblies, and recitals.”. Complaint at 4 15

Stratechuk alleged that the School District’s actions

violated his and his minor children’s rights under the

Establishment Clause of the First Amendment by

“convey|ing] the impermissible, government-sponsored

message of disapproval of and hostility toward

religion, including Christianity... .” Complaint at

4 21. In addition, Stratechuk claimed that the same

actions deprived him “and his minor children of their

right to receive information and ideas, their right to

learn, and their right to academic freedom, which are

guaranteed under the First Amendment :

Amended Complaint at | 24. Stratechuk sought (1) a

declaratory judgment that his and his children’s

constitutional rights had been violated, (2) “a

permanent injunction enjoining Defendants’ policy,

practice, and/or custom of banning religious music

within the School District,” (3) “damages for the past

loss of his and his minor children’s constitutional

rights,” and (4) attorneys’ fees, costs and expenses

Amended Complaint at 7

“ In addition to stating that Stratechuk was the father of two

minor children enrolled in the School District, the Complaint also

noted that he was a music teacher at Hunter College in

Manhattan, a professional violinist and conductor, and a

Christian. Complaint 74 8-9

I2a

On October 10, 2005, after the period at issue in

Stratechuk’s complaint, the School District amended

Policy 2270 by removing Section 4(a). See p. 4-5 supra

At the same time, in order to clarify Policy 2270 the

School District adopted regulation Rh-2270, “Keligion in

the Schools,” App. at 385, which provides that for

children in grades 6-12, the “performance of music

with religious text 1s appropriate when doing so is an

outgrowth of the curriculum,” but “musical

performances shall not be celebrations of particular

religious, ethnic or cultural holidays,” App. at 386. For

elementary school students, the performance of “music

with a religious text shall be avoided.” App. at 386. In

addition, the section entitled “Celebration of Religious

Holidays Prohibited” states that “[m]usical concerts or

assemblies which take place during holiday seasons

will not be ‘holiday concerts,’ which celebrate religious,

cultural or ethnic holidays.” App. at 387. Stratechuk

has not amended his complaint to include a challenge

to this regulation or any of the School District’s specific

actions that occurred after he filed his amended

complaint. The District Court, Appellees, and Amici

correctly note that the schools have permitted the

performance of music with religious content since

2004 See Stratechuk, 577 F. Supp. 2d at 738;

Appellee’s Br. at 11-12; Amici’s Br. at 10-1]

The District Court dismissed Stratechuk’s

complaint, finding that his claim relied on Policy 2270

alone and that he could not state a claim under that

policy See Stratechuk v. Bd. of Educ. of S

Orange-Maplewood Sch. Dist., 200 F. App’x 91, 93-94

(3d Cir. 2006). This court vacated and remanded in a

non-precedential opinion, noting that the “policy that

Stratechuk alleges was in place in 2004-2005 is

decidedly different than the ‘official policy” articulated

in the text of Policy 2270 and concluding that “a

categorical ban on exclusively religious music,” of the

type that Stratechuk alleges, “appears to state a claim

under the First Amendment.” Id. at 94

On remand, the parties engaged in discovery and

both moved for summary judgment. The District

Court granted summary judgment in favor of the

School District, holding that Policy 2270, a:

interpreted by the October 2004 Memo (and a:

applied) did not violate the Establishment Clause or

any First Amendment “right to receive information,

ideas, right to learn, and right to academic freedom.’

Stratechuk, 577 F. Supp. 2d at 749. Stratechuk timely

appealed

il.

Jurisdiction and Standard of Review

The District Court had = jurisdiction’ over

Stratechuk’'s § 1983 claim under 28 U.S.C. 88 1331] and

1343(a)(3), and this court has jurisdiction under 28

U.S.C. § 1291

This court “review|s] a grant or denial of summary

judgment de novo, applying the same standard as the

District Court.” Pichler v. UNITE, 542 F.3d 380, 385

(3d Cir. 2008) Summary judgment “should be

rendered if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is

no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.’

Fed. R. Civ. P. 56(c). “In making this determination,

we ‘must view the facts in the light most favorable to

the nonmoving party and draw all inferences in that

l4a

party sfavor.” Norfolk S. Ry. v. Basell USA, tne., 512

isd 86, 91 (3d Cir. 2008) (quoting Abramson

William Paterson Coll. of N.d., 260 F.3d 265, 276 (3d

Cir. 2001))

iil

Discussion

A. The Establishment Clause

tratechuk launched a broad First Amendment

attack against the School Districts interpretation of

Policy 2270, focusing in the first instance on the

Kistablishment Clause Under the Establishment

Clause of the First Amendment,” “Congress shall make

no law respecting an establishment of religion.” U.S

CONST. amend. 1. ‘The Supreme Court has read th

clause to forbid not only “law” respecting an

establishment of a religion,” U.S. CONST. amend. I, but

also “an official purpose to disapprove of a particular

religion or of religion in general,” Church of the

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

H20, 532 (1993) “The touchstone for our

[Establishment Clause] analysis is the principle that

the ‘First Amendment mandates governmental!

neutrality between religion and religion, and between

religion and nonreligion.” McCreary County v. ACLU

D45 Ud. 844, 860 (2005) (quoting Hpperson |

Arkansas, 393 U.S. 97, 104 (1968))

The Kstablishment Clause of the First Amendment

nas long been held applicable to the State Wallace

172 U.S. 38, 42 n.10 (1985)

lLJnder the so-called Lemon test, a state law or

governmental action violates the [Establishment

Clause if (1) it lacks a secular purpose, (2) “it:

principal or primary effect advances {jor inhibit

religion, or (3) it “foster|s] an excessive povernment

entanglement with religion.” Lemon v. Aurtzman, 403

US. 602, 612-13 (1971) (citation and quotation

omitted) Although still good law, see McCreary

County, 545 U.S. at 859-61, some Justices have

criticized the Lemon test, see, e.g., Lambs Chapel |

Ctr. Moriches Unton Free Sch. Dist. , 508 U.S. 384, 398

(1993) (Scalia, J., concurring) (Like some ghoul in a

late-night horror movie that repeatedly sits up in it:

grave and shullles abroad, after being repeatedly

killed and buried, Lemon stalks our Establishment

Clause jurisprudence once again, frightening the htth

children and school attorneys “). Without

discarding the Lemon test, the Court has set forth tw

related tests, the “coercion test,” see Lee v. Weisman

505 U.S. 577 (1992), and the “endorsement test,” se

iynch | Donnelly, 465 U.S. 668, 687-94 (1984)

(O'Connor, J., concurring) The District Court

analyzed Stratechuk’s claim under Lemon, concluding

that the Lemon test was the most appropriate for the

claim before it. Stratechuk argues that the School

District's policy and conduct’ violates — thi

establishment Clause under both the Lemon test and

the endorsement test

1. The Lemon Test

“In applying the purpose |prong of the Lemon] test,

it is appropriate to ask whether povernments actual

purpose is to endorse or disapprove of religion.’

Wallace v Jaffree, 472 US 38, 56 (19%5) Ginterna!

quotation omitted) “While la court] is normally

deferential to a States articujJation of a secular

purpose, it is required that the statement of such

purpose be sincere and not a sham.” HKdwards vu

Aputllard, 482 U.S. 578, 586-87 (1987). As such, “|thhe

eyes that look to purpose belong to an_ objective

observer, one who takes account of the traditional!

external signs that show up in the text, lepisiative

lustory, and aumplementation of the statute, or:

comparable official act.” McCreary County, 545 U.S. at

‘67 Ginternal quotation omitted)

liere, there is no religious purpose only a secular

One oO the issue is whether this secular purpose 1:

actually, as otratechuk maintains, a purpose to

disapprove ol religion. ‘Phe school District argues, and

the District Court found, that the purpose of the policy

was lo avoid government endorsement of relipiou:

holiday and a potential Itstablishment Clause

wolation. Although there are lew opinions addressing

this type of secular purpose, the District Court cited

everal courts of appeals opinions where the court

held that “jajetions taken to avoid potential

lstablishment Clause violations have a_ secular

purpose under the purpose prong of the Lemon test

Stratechuk, 577 F.Supp. 2d at 743 (eiting Vasquez

los Anpeles County, 487 F.3d 1246, 1255 (9th Ci

2007) Cholding that county's removal of the image of

the cro: from its olfieial seal in order “to avoid a

potential kestablishment Clause violation lhad a} valid

lla

secular purpose under Lemon”), Roberts v. Madigan,

921 F.2d 1047, 1054 (10th Cir. 1990) Cholding that

school district’s order directing teacher not to leave his

bible in sight or read silently from it during classroom

hours had a secular purpose jn that it was intended “to

assure that none ol |the teacher’s| classroom materials

or conduct violated the Kstablhshment Clause”); c/

Borden v. Sch. Dist. of Twp. of F. Brunswick, 523 F.3d

154, 174 (3d Cir. 2008) (The Supreme Court has

stated that ‘complhance with the Isstablshment Clause

is a State interest sufficiently compelling to justify

content-based restrictions on speech.” (quoting Capitol

Square Reovew and Adutisory Bd. v. Pinette, 515 US

754, 761-62 (1995)))). Indeed, our own court has said

as much susch v. Marple Newtown Sch. Dist., 567

he 4d 69, 100 (4d Cir. ZO0Y)

mbtratechuk maintains that this alleged purpose i:

ham” because the Kstablishment Clause does not

require a prohibition on performing religious muse

and “|vjirtually every court that has been asked to

review year-end holiday concerts or music program:

that have included religious music or music associated

with religious holidays has upheld them.” Appellant's

Reply Kr. at 19-20. In support of this assertion,

otratechuk cites cases from the Kighth, Tenth, and

hifth Circuits that upheld the constitutionality of

performing religious music in public — school:

Appellant's Reply Br. at 20 (citing Bauchman ex rel

KBauchman vo. W. Miph Sch., 132 F.3d 542, 562 (Oth

Cir. 1997) (upholding Utah school policy permitting

music teacher to select expheitly Christian music and

Christian religious sites for performance of school

choir); Doe v. Duncanville Indep. Sch. Dist., 70 F.3d

402, 407-08 (5th Cir, 1995) (upholding Texas high

schools practices, such as permitting choir to use

léa

Christian religious song as its theme song); Florey vu

Stoux Falls Sch. Dist. 49-5, 619 F.2d 1311, 1319 (8th

Cir. 1980) (upholding South Dakota school policy that

a oe Ke . ca »

permitted music “having religious themes or basis,

including Christmas carols, as “part of the curriculum

for school-sponsored activities and programs if

>

presented in a prudent and objective manner . ))

The cases cited by Stratechuk all upheld the policy

of the respective schools or school districts. That is far

different from holding that the First Amendment

compels a school district to permit religious holiday

music or risk running afoul of the First Amendment

Stratechuk has offered no persuasive authority that

the First Amendment prevents South

Oranye- Maplewood School District from formulating

a polly that precludes performance of relipiou:

holiday musi

Moreover, as the JDjistrict Court noted, the

assumption “that the Jcstablishment Clause does not

require the restrictions enacted by Defendants does

not automatically render Defendants’ stated purpose

a‘sham.” Stratechuk, 577 F. Supp. 2d at 744. In

other words, even if performance of religious songs did

not violate the [Establishment Clause, it does not

follow that the goals underlying the School District's

desire to avoid a potential Establishment Clause

violation were disingenuous or impermissible

A similar issue was raised in Bishop v. Aronov, 926

ik 2d 1066, O77 (l1ith Cir. 1991). In that case, a

University had placed certain limits on a professor's

in-class comments regarding religion The court

upheld those limits under the Lemon test even

assuming that the comments did not violate the

1Y¥a

Kstablishment Clause. The court explained that “the

restrictions neither advance nor inhibit religion LO

the contrary, the University . . . simply attempted to

maintain a neut ral, secular ¢ lassroom Id

As the District Court noted, the October 2004

Memo “was spurred by at least one parent's

complaint,” as well as the practical impossibility of

including every religion in a December holiday concert

Stratechuk, 577 F. Supp. 2d at 744. In fact, the

concerns that led to the October 2004 Memo were the

very type of concerns underlying the Establishment

Clause jurisprudence in this area, i.c., the need for

government neutrality towards religious institution:

and behefs, McCreary County, 545 U.S. at 860, and the

impressionability of young children, kKdwards, 482

U.S. at 583-84 In addition, as Amici note, “the

Constitution does not require the School to promote

religion to the constitutionally permitted maximum

and its failure to do so does not make it anti-religiou:

in any constitutionally significant way ochool

district can determine how close to th

isstablishment Clause line’ they wish to. place

Amici Br. at 33

Moreover, as the School District points out

stratechuks argument that the purpose of the

current interpretation of Pohcy 2270 is’ to

unconstitutionally disapprove of religion and, in

particular, Christianity is based largely upon

plaintiifS inaccurate factual contention that

defendants policy amounts to a ban on religious musi

in the school system.” Appellee’s Br. at 37. To the

contrary, itis clear that the policy, as interpreted, doe:

not prevent — and the record shows that it has not in

{

lact prevented — the teaching of religious holiday songs

20a

in the classroom or the performance of songs with

religious content at the December concerts (albeit not

sonps specifically related to winter holidays)

b | y y

It follows that the District Court did not err in

holding that the School District's actions did not have

an impermissible purpose within the meaning of

Lemon

Turning to the Lemon test's effect prong, which

considers whether the “principal or primary effect” of

the challenged policy or practice “advances [Jor inhibits

religion,” Lemon, 403 U.S. at 613, we note Justice

(’Connor’s explanation that “|t]he effect prong ask:

whether, irrespective of government's actual purpose,

the practice under review in fact conveys a message of

endorsement or disapproval,” Lynch, 465 U.S. at 690

(Q’Connor, J., concurring). “While an adjudication of

ja policys| effect must take into account the

perspective of one whois neither Christian nor Jewish,

as well as of those who adhere to either of these

rehpions, the constitutionality of its effect must also be

judged according to the standard of a ‘reasonable

observer.” County of Allegheny v. ACLU, 492 U.S

073, 620 (1989) (opinion of Blackmun, d.). In a

passage describing the endorsement test that is often

quoted to describe the effects prong of the Lemon test,

Justice O'Connor also noted that “the ‘history and

ubiquity of a practice is relevant because it provides

part ol e context in which a reasonable observer

evaluates whether a challenged governmental practice

conveys a message of endorsement of religion.” Id. at

630 (O'Connor, J., concurring)

Stratechuk argues that the “elfect’ of the School

Districts ban on the performance of religious music,

Zia

irrespective of any alleged ‘purpose, conveys a

message of disapproval of religion ....” Appellant's

Br. at 44. For example, Stratechuk maintains that

“\tihe reasonable observer would know that the MLK

Gospel Choir was permitted in the past to perform

traditional Christmas religious music at the Columbia

lligh School Holiday Assembly but has now been

banned from performing at this event pursuant to the

School District's new polhicy.... In the final analysis,

an informed, reasonable observer would conclude that

lthe polhcy] has the effect of disfavoring religion °

Appellant's Kr. at 46-47

‘The District Court rejectec this argument,

concluding that “there is ample ev:dence available to

the objective observer regarding the interpretation of

Policy 2270 in the totality of the circumstances, which

removes any claim that it conveys a message of

disapproval of religion.” Stratechuk, 577 i. Supp. 2d

at ‘746. ‘To this effect, the Court noted that the policy

crmits the inclusion of “religmious matenal when

| $5

appropriate, provided that it is presented objectively

and that it fits within the curriculum.” /d. The Court

also noted that the policy requires “|a|Jccomodatiion of]

student-initiated expression|s] ... which reflect their

behefs or non-behefs about religious theme: ” Id

Gnternal quotation omitted). “Moreover, Policy 2270

allows for the use of religious music, provided 11

?

achieves specific goals of the music curriculum.” /d

f

(internal quotation omitted)

Moreover, the District Court also noted that

“lajlthough the interpretation of Policy 2270 restricts

the performance of holiday music during the December

concerts, music teachers have indicated that they

continue to teach those songs in the classroom and

22a

Director of Fine Arts Santoro has confirmed the

appropriateness of this practice.” Id. at ‘747.

Similarly, the District Court emphasized that songs

with religious content have continued to be played at

the December concerts since promulgation of the

October 2004 Memo, as the policy “simply restricts the

performance of holiday music at the time of the

religious holiday that the music honors.” Jd. On this

basis, the District Court had ample reason to conclude

as follows: “Given the continued performance of

religious songs and the continued teaching of holiday

music in the classroom, the objective observer would

not determine that the implementation of Policy 2270

sends a message of disapproval of religion.” /d

We note with approval the Distmet Court's

observation that the restriction on “the performance of

holiday music, which changed earlher practices within

the School District ldid not} automatically convey

a message of disapprove! of religion because as the

Supreme Court observed in County of Allegheny, ‘\al]

secular state, it must be remembered, is not the same

as an atheistic or antireligious state.” Id. at 747-48

(quoting 492 U.S. at 610). ‘This point is elaborated in

the Amici’s brief which states that “Establishment

Clause jurisprudence recognizes that neutrality

towards religion is quite distinct from hostility

towards it.” Amici Br. at 17. The brief cites an

Mleventh Circuit opinion that states that “|a] contrary

conclusion would ‘totally eviscerate the establishment

clause.” Amici Br. at 17 (quoting Smith v. Bd. of

Comm'rs, 827 F.2d 684, 693 n.9 (11th Cir. 1987))

Smith also quoted a Ninth Circuit case, Grove v. Mead

Sch. Dist. No. 354, 753 F.2d 1528, 1536 (9th Cir. 1983)

(Canby, J., concurring), which stated that “distinctions

must be drawn to recognize not simply ‘religious and

< ? < ?

anti-religious, but ‘non-religious’ governmental

activity as well.” As the Amici note

Were that not the case, almost every

povernment action vis-a-vis religion would fall

into one of two columns — pro- or anti-religion,

promoting or hostile to and be subject to

Kstablishment Clause attack in either event

That is the logic of Plaintiffs legal theory;

indeed, that theory would, ironically, subject

actions that sought to allow more religiou:

content to that same black or white analysis

Amiucis Ir. at 18. Numerous courts have rejected the

suppestion that “secular” means “anti-religious.” See,

e.p., County of Allegheny, 492 U.S. at 610-11; Smith

&2'7 I 2d at 693-94. Grove, 753 F.2d at 1536 (Canby, J

concurring)

We reject Stratechuk’'s argument that the fact that

numerous Students and parents have petitioned the

schoo! board and strongly urged it to reverse its policy

“demonstratles}| beyond penuine dispute that a

reasonable observer could only perceive that the policy

disfavors religion.” Appellant's Kr. at 26 The

constitutionality of a schoo! board’s policy toward

religion cannot be decided by reference to popular

opimon. See Santa Fe Indep. Sch. Dist. v. Doe, 530

U.S. 290, 316-17 (2000) (rejecting argument that

school prayer policy was constitutional because it wa:

approved by vote of the student body)

The fin. | prong of the Lemon test considers

whether the -jallenged policy or practice “foster|s] an

excessive government entanglement with religion.’

24a

Lemon, 403 U.S. at 612-13 Gnternal citation omitted)

As now-Justice Alito wrote when he was a member of

this court, an excessive entanglement “requires more

than mere ‘[ijnteraction between church and state,’ for

some level of interaction has always been “tolerated.”

Child Evangelism Fellowship of N.J. Inc. v. Stafford

Twp. Sch. Dist., 386 F.3d 514, 534 (3d Cir. 2004)

(quoting Agostini v. Felton, 521 U.S. 203, 233 (1997))

In Agostint, the Supreme Court explained that the

“factors employed ‘to assess whether an entanglement

is “excessive” are similar to the factors ... useld] to

examine “effect.” Thus, we must look to ‘the

character and purposes of the institutions that are

benefitted, the nature of the aid that the State

provides, and the resulting relationship between the

government and religious authority.” /d. at 534-35

(quoting Agostini, 52) U.S. at 232)

Stratechuk argues that the School District’s policy

causes excessive entanglement because “school officials

will be required to screen music to determine whether

it is religious or secular in nature [and] |d|rawing such

distinctions between secular and religious themes will

necessari-y cause an entanglement with religion.’

Appellants Br. at 4% The District Court

acknowledged that the interpretation of the policy

“involves some entanglement with religion” because

the teachers must make selections with religious

concerns in mind and because Santoro must approve

these selections. Stratechuk, 577 F. Supp. 2d at 748

liowever, the Court concluded that “|tjhis type of

oversight this drawing of distinctions between

secular and religious themes - strikes the Court as no

different from the screening that school districts

engage in every day to ensure neutrality in matters of

religion.” Jd. at 749. The District Court also observed

that “|t]o conclude otherwise ignores the evidence and

would undermine governmental efforts to comply with

the Establishment Clause.” Jd We apree, and

conclude that when examined under the Lemon test,

Pohicy 2270 does not contravene the Establishment

Clause

Bb. The Endorsement Test

In light of the critique of the Lemon test, we also

consider Stratechuk’s claim that Policy 2270 fails the

“endorsement test,” a modification of the Lemon test

This test “dispenses with Lemon's ‘entanglement’

prong and, combining an objective version of Lemon's

‘purpose’ prong with its ‘effect’ prong, asks whether a

reasonable observer familiar with the history and

context of {a religious} display would perceive [it] as a

government endorsement of religion.”. Modrovich v

Allegheny County, 385 F.3d 397, 401 (38d Cir. 2004)

(citing Lynch, 465 ». at 687 (OConnor, Jd.,

concurring)). In addition, “|t}he endorsement test ask:

whether the government action has ‘the effect of

communicating a messape ol government endorsement

or disapproval of religion.” /d. (quoting Lynch, 465

U.S. at 692 (O'Connor, J., concurring))

The District Court held that this test did not apply

because “this matter does not involve a religious

display on government property or state participation

ina religious activity.” Stratechuk, 577 F. Supp. 2d at

742 n.8. There is merit to Stratechuk’s argument that

this court has not limited the endorsement test to

cases involving religious displays on government

property. See, e.g., ACLU v. Black Horse Pike Rep'l

Sch. Bd., 84 F.3d 1471, 1486-87 (3d Cir. 1996) (en

4

20a

banc) (applying endorsement test to challenge to

student-led prayer at high school graduation)

A: this court stated in that case, “|tihis

endorsement test has at times been characterized as

part and parcel of the Lemon test, and at other times

as separate and apart from it Whether ‘the

endorsement test’ is part of the inquiry under Lemon

or a separate inquiry apart from it, the import of the

test is the same. We must determine whether, unde:

the totality of the circumstances, the challenged

practice conveys a message favoring or disfavoring

religion.” Jd. at 1485-86. The result is the same under

the endorsement test as under the effects prong of the

Lemon test and our earlier conclusion that the School

District’s policy does not exhibit endorsement or

hostility towards religion 1s equally applicable hers

(. Additional First Amendment Claim

stratechuk does not limit his First Amendment

challenge to the IXstablishment Clause but also argues

that the School District has violated his children’s (and

his) First Amendment rights by “seek|ing] to ‘contract

the spectrum of available knowledge’ for its students

by banning certain religious music from curricular and

co-curricular activities and events simply because it 1:

religious or associated with a religious holiday.’

Appellants Br. at 51] We see no merit in this

argument

Stratechuk asserts that, through Policy 2270 as

interpreted, “the government ts seeking to remove an

entire category of ‘ideas’ from the curriculum.’

Appellant's Br. at 50 n.9. Presumably, Stratechuk

equates “ideas” with religious celebratory PiuSic

Assuming without deciding the validity of thi:

equation, Stratechuk's assertion is incorrect. ‘There i:

no restriction of the students access to the “ideas” to

which he refers because the students have access to

religious celebratory music in the classroom within thi

framework of the curmculum

‘The District Court construed mtratechut

argument as contending that Policy 22/0 a

interpreted violates his children’s right to receive

information and ideas. ‘This led the District Court to

an analysis of the Supreme Court's decisions in Bd. of

Kduc., Island Trees Unton Free Sch. Dist. No. 26 °

Pico, 157 U.S. 853 (1982). and Hlazelwood Sch. Dist. t

Kuhlmeter, 484 U.S. 260 (1988). The Distmect Court

noted that Pico dealt with the right to receive idea

thie school board s deci: ion LO remove certain book

from the school district's libraries) whereas Auhlmete)

dealt with the right LO express ideas (c¢ nsoring thie

student newspaper). The District Court stated that

although Pico seemed on the surface more applhicabl

to Policy 2270, it concluded that applying Auhlmeve?

was more appropriate because the Supreme Court in

that case addressed the issue as “whether the First

Amendment requires a school affirmatively to promot

particular student speech” 484 U.S. at 270-71

Because the Auhimeter Court held that the forum at

issue in that case, the high school newspaper, was not

a public forum, the school authorities had thi

discretion to “exerci: le] editorial control over the styl

and content of student speech in school-sponsored

expressive activities so long as their actions are

reasonably related to lepitimate pedagopical concern

fd. at 2/3

Using Aufhimeter as precedent, the District ¢

in this case concluded that the December concerts ar

not public fora, and that the School District:

interpretation of Policy 224V Is re

OU t

asonably related to

legitimate pedagogical concerns. On that basis the

District Court granted the detendant motion for

ummary judgment with respect to Stratechuks F1

rst

Amendment claim. We si

e& rho erro of law

discretion in the District Court analy

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Lyrae school authoritsi

UNEPED STATES COURT OF APPEALS

FOR THE THIRD CIRCUTTI

No. O8-38R26

iFiled November 24, 2009]

MICHAEL STRATECHUK

Individually and on behalf of hi

minor children

Appellant

BOARD OF EDUCATION, SOUTH

ORANGE-MAPLEWOOD SCHOO!

DISTRICT, BRIAN F. O'LEARY

In his official capacity as board

president, Board of Hducation, South

Orange-Maplewood Schoo! District

PETER P. HOROSHAK, In his offic

Capacity as superintendent, South

Cvrange Maple wood School District

On Appeal from the United States Distmet Cour

lor the District of New Jer

(1).C. No. 2-04-cv-O6189

District dudge: Honorable Wilham H. Wall

before SLOVIPER, FUENTES i

SMUEUTH, Crreunt Judge

j0a

JUDGMEN'SI

‘This cause came on to be heard on the record trom

the United States District Court for the District of

New Jersey and was argued on September 14, 2009

(On consideration whereol, il ) now hereby

ADJUDGED and ORDERED that the judgment of thi

District Court entered August 2%, 200%, be and the

we | hereby allarmed. Costs taxed apainst

appellant All ol Lhe above IT) accordance with thie

Opinion Of this Court

APPENDIX B

FOR PUBLICATION

UNIFPED STATES DISTRICT COUR!

DISTRICT OF NEW JERSEY

Criv. No. 04-6189 (WHW)

[kailed August 29, Z008]

MICHAL STRATIECHUK

mdividually and on behali of ti

PyiliiGl childre I)

BOAKD OF FKDUCATION, SOUTH

OKANGE-MAPLEWOOD SCHOOL

DISTRICT; BRIAN Jt. OLEATIRY,

in hus Official Capacity as Board

President, Board of Education, South

(Orange Maplewood school District

PrTeER Po HOROSHAK, in his official

capacily aS Oupermtendent, oouth

COranype Maple WOOd Hchoo!l 1D) Lrict

OPINION

Walls, Senior District Judge

Pursuant to Fed. hk. Civ. P. 56, Plaintiff Michael

Stratechuk moves for summary judgment on his first

claim, alleging that “Defendants have conveyed the

impermissible, government-sponsored message ol

disapproval of and hostility toward religion, including

Christianity, in violation of the Iksstablishment Clause

Defendants Board of Kducation, South Orange

Maplewood School District (the “School Board’), bnan

i O’Leary, and Peter P. Horoschak (Superintendent

Hjoroschak’) also move for summary judgment

pursuant to Fed. K. Civ. P. 56, to dismiss Plaintill:

Amended Complaint in its entirety. The Court held

oral arvument on the motions for summary judgment

on duly 31, 2008. Delendants motion for summary

judgment is granted; Plaintiffs motion for summary

ju iymentis deni d

KACTS AND PROCEDURAL KBACKGROUND

Plaintiff Michael stratechuk is the father and lepal

guardian of two minor children who live in the Schoo!

District of South Orange and Maplewood, New Jersey

(the “School Distmet’). (Pls Statement of Material

hact (No so-m) € Fi.s 5.F. ) s | 1.) During Lhe

2004-2005 school year — the relevant time period — one

of Plaintiffs children attended Columbia High School

and the other attended Maple wood Middle school. Ud

on April 2, ZOO], the School Board adopted Policy

Z2t(Q. Keheion in the pchool According to Voli

2°2«

2D

mutual understanding and respect for the right

of all incividuals reparding their beliefs, values

Ww ¢

lt is the goal of the [School District] to foster

and customs In pursuing this goal,

recognize that we serve a diverse community

with varying cultural, ethnic and _ relipious

omentlation

We are cognizant of the role of culture

’ {

mcluding religion, in the development of our

ociety and believe that objectively teaching

about religion and its role in the social and

historical development of civilization does not

violate the rehpious neutrality of the public

( hoo!

c, art, literature, dance and drama along

eA

Vith religious customs and traditions, which

have come to us trom various elements of ou)

national population, may be used to broaden our

pupils’ awareness of the many elements that

comprise our diverse American culture

Cert. of Michael F. O'Neil CO Neill Cert.”), lux. A (No

/-4) at 500140.) Given this goal the School Board

a € sj

idopted the following practices regarding — thi

Preatment of Keligion in the Curriculum:

Vermit the inclusion of religious literature

music, drama, dance and visual arts in the

irniculum provided that it achieves specili

yal of the written curriculum inthe

arious hields of study; that it is presented

objectively; and that it neither inhibits no:

any reliyious point of view

GQVance

34a

” Accommodate student-imitiated expression

In response to questions or assignments

which reflect their beliefs or non-belhiefs

about religious theme:

au. Otudents are free to express religious

behef or non-beliel in compositions,

works of art, Music, speech ana debate

Provisions should be made so that such

expression 1s neither encouraged nor

discouraged, but is handied ins a

courteous and respectiul manner

Only permit rehgious symbols to teach about

historical or cultural context, not ty promote

or celebrate religious concepts, events o1

hohday

(Classroom use and/or display o1 religious

symbols 1s permitted on a temporary

basis as a teaching resource or aide only

within the framework of the curriculum

fhe use and/or display of religious

ymbols should provide an environment

whereby students of all faiths, beliefs or

non-behefs can participate without

betraying their own faith or belief:

(Id. lex. A atSO0140-41.) Moreover, the school board

adopted the following practices” regarding th

Preatment of Kelhpious Holidays in Classroom

chool Buildings, Programs: or Concert

Kelipious holidays are not to be celebrated in

mat Schools { KCepl IT) Lhe form of} the secula!

{ i Ol that holiday 1ioweve!

Joa

opportunities to Jearn about cultural and

religious traditions should be provided

within the framework of the curriculum

Information about religious and cultural

holidays and traditions, focusing on how and

when they are celebratea, their origins and

histories may be part of this instruction

In planning school activities related to the

teaching about religious holidays or themes,

special effort must be made to ensure the

aclivily is not devotional and that pupils of

all faiths and behets can join without feeling

Lhey are betraying their own faith or belie

Decorations with relipious significance are

not permitle d

Keliyious music, like any other music, can

only be used if it achieves specific goals ol

the music curriculum

Music programs prepared or presented

by student groups as an outcome of the

curriculum shall not have a religiou:

omentation or focus on relipious holiday

at oOOl4 1.)

before the ZO004-Z005 school year, holiday mus

including traditional Christmas carols and Hanukkah

On: was performed at the School District

December concerts. (Plis 5.F. 4 3-4; Dells” Br. in

support of Summ. J. (No. 3/-2) (Delis. Supporting

Br”) at 5.) In the Fall of 2003, music teacher Wilham

Cook contacted Sharon Cohen, a parent of one ol fy

36a

students, “who objected to her daughter playing

certain music that we were doing at a concert” and

who stated that “she didn’t want her daughter to play

the music at the concert.” (P1.’s Mot. for Summ. J., Fx

C (No. 86-6) at 35:19-36:10, 40:10-18.) Ms. Cohen also

told Mr. Cook that “Christianity was forced upon her

in her youth.” (id., Ex. C, Ex. 4.) Mr. Cook advised the

Director of Fine Arts, Nicholas Santoro (Director of

Kine Arts Santoro”), of his conversation with Ms

Cohen, and Director of Fine Arts Santoro recounted

the situation to Assistant Superintendent James

Memoh (“Assistant Superintendent Memoh”). (Id.)

Qn January 21, 2004, Ms Cohen — sent

Superintendent Horoschak a letter, complaining that

“the selection of music lat the South Orange Middle

School 2003 December concert], both instrumental and

vocal, had a clear religious orientation and focused on

rehgious holidays in direct violation of the Board

policy # 2270 4 (a).”” (Decl. of Attorney Robert J

Muise (No. 88), lex. P-5 at S0O0212-13.) On March 1,

2004, Superintendent Horoschak responded to Ms

Cohen's letter, noting that with respect to the 2003

December concert, “[i]t was our judgment that because

of the variety of both secular and ‘holiday’ (1.e

' According to Supenmntendent Horoschak, he had a general

recollection of parents expressing similar concerns regarding the

subject matter of the December concerts during the time period

between 199% and 20035, although he could not remember any

specific instance other than one where a Muslim parent raised

concerns that his/her faith was not represented during the

concert (O’Neill Cert., Ex. B (No. 37-5) at 53:13-57:1.)

Additionally, Assistant Superintendent Memol: stated that he

“know|s] there have been other complaints over the years,” but he

can’t name the individuals. (Id., lex. kk (No. 37-8) at 23:°24-25°3.)

4a

Hanukkah and Christmas) selections there was not

one particular focus on a= particular religion o1

religious proup, and, as such, there was no attempt to

advance any religious point of view.” (P1.’s Mot. for

Summ. d., Ix. I (No. 36-10), lex. P-6 at SO0375.)

Superintendent Horoschak continued, however, that

although “|wje are cognizant of the policy, and are

’

careful to follow it concerns raised by parent:

reparding the holiday concert at South Orange Middle

school suggest that the pohey needs further

clarification. (Id.) Further, he stated that “Assistant

Superintendent Jim Memoli and Director of I*ine Arts

Nicholas Santoro are engaged in on-going discussion:

about such musical programs, and they” will

recommend to me suggested languayve for regulations

which should clarify what types of programs and

activities are permissible and not permissible under

this poli y. (Id.)

Qn or about March 24, 2004, Superintendent

Hloroschak had his annual performance review with

the School Board.” (Dets- Supporting Br. at 5.) At thi

At least one of the School Board members who wa:

pe rlormance review was Shelly Slatke: (iis 3.0 4 9) shes a

“good acquaintance” of Ms Cohen. (id. at n6) During the

November 22, 2004 meeting of the School Board, she stated that

“lilt ais my strongly held belief that school assembles and other

school activities should not contain religious content in oul

music.” (Fs Mot. for Summ. J., kx. H (No. 36-13) at 28:8-10.)

Ms Slatkes suppested that “|wlhen religious content is included

many children — and I could speak for how I felt as a youngster

feel both uncomfortable and forced to choose between the choru

or band and their religious beliefs,” and expressed her opinion

that “the only way that the school distmet can re pect the

difference: and bel fs of each person ih oul diverse communitie

‘ by eliminating religiou celebration in out publy chool ~ (ic

‘ )

< 4

~—D

Oa

review, the issue of the implementation of Policy 2270

with respect to the December concerts was raised

(O'Neill Cert., Ex. BK (No. 37-5) at 111:9-113:13.)

According to Superintendent Horoschak, “board

members had heard from some community members

about instrumental music that they felt, people felt

represented a celebration of Christmas holidays and

also there hald| been discussion about the fact that

you really can’t balance all religious groups in these

representations in these types of performances.” (Id.,

Mx. B at 118:2-11.) Ultimately, the School Board

indicated that the outcome that 1t desired was “that

(\Pohicy 2270) would be consistently implemented, that

it be supervised, that there wouldnt be so much

discretion at every — by every faculty member,” (id

Kx. B at 114:2-10), and discussed with him drafting

repulations regarding Policy 2270, (Dets. Resp. to PL.’s

Statement of Material Facts (No. 43-2) 4 8; see Pls

si. WT 8.)

In September 2004, Director of Fine Arts Santoro

held a department meeting, wherein he “discussed

lwith the School District music staff] how I would be

approving their programs and that we could do

religious music, but they should “try to avoid the

holiday music.” (O'Neill Cert., lex. (No. 3/-1]) at

57-13-24.) At that time, Director of fine Arts Santoro

had not yet told the School District music staff that

“Christmas Carols [were] out”. ([d., fx. H at 58:3-5.)

On October 14, 2004, Superintendent Horoschak met

ex. fiat2B&’ 10 18.) M mlatke noted, however, that “I do beheve

strongly that as part of the social studies, language arts, and

other curriculum areas, we should and for the most part do teach

Ou} childre I} about ( ich r¢ hguon and culture thie il bel el ai 1d

holiday ld., fx. Hi at 3O:9-]

IVA

Assistant

with Director of Fine Arts Santoro,

Superintendent Memoli, and the School District's

attorney, llen Bass (the “October 14, 2004 meeting’),

“to review the requirements of Policy 2270 and to

resolve various parent concerns regarding the

implementation of the policy ”" Udd., Ex. 1 (No. 37-12) at

800142; see Plis S.F. YY 13-14.) According to

Assistant Superintendent Memoli, the discussion at

that meeting involved “what we do for the students in

this district, what is best for them so that we feel that

were treating everyone on an equal basis, what wa:

educationally sound, (Defs. Reply Br. in Support of

Mot. for Summ. J. (@Dets. Reply Br.”), Ex. BCNo. 45-4)

at 53:5-15), and making sure that “no child feels

uncomfortable in celebrating a holiday that wasnt

their own, (id., Ex. B at 59:23-25) Assistant

Superintendent Memoli stated that he “want{s]} the

students to feel comfortable when they re in this school

system building and in their classroom; and, anything

that makes them uncomfortable effects [sic] then

ability to learn. (lid., Ex. B at 57:6-12.)

Wirector ol hire Arts pantoro

memorandum to the School District mu statl on

October 29, 2004 (the “October 29, 2004

memorandum ) forwarding the decision: made alt the

October 14, 2004 meeting. (O'Neill Cert., Ex. I CNo

12) at SOO143. Plos S-F. 4 19.) Director t fame

Arts Santoro wrote that “in my three-plus years in thi

district, lbhave been reviewing your programs to insurt

| that we are in comphance with |[Pohey 2270]

Wa

and that following the meeting, “ | now have a clearer

picture of the expectations of [Policy 2270].” (O'Neill

Cert., Ex. | (No. 387-12) at SOOMS: see PL’s S.-k

V4 15-16.) Director of ine Arts Santoro continued

that “jijn short, we will continue to use common sense

when selecting music for the Holiday concerts,” but

if d preset nted mia Spe ita bullet port

° All programs will be revi wed and approve |

by me. ‘Tosave time and eflort, | will com

to you to look at your repertoire riease let

me know when | can do thi:

- W « Will avoid any selection which l

considered to represent any religiou

holiday be it Christmas, lianukkah, el

his holds true forany vocal or instrumental

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following mal i biil {

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intoro clarified that “acco

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rOQthi WO

br dent (id... tux \ D-1U) hy

adaditior membe Of thre community

) nplaints ad Iriths’ meetlinp Ot tte Cirrose

yew Jersey community Signed a Petitior

board of Education t tionor Relhmou

the co-President ithe Columbia ligt

Parent A MLALION ent a lett Da Lp

Pioro hak and the CT) i bsoard “torn .

rreview and reinterpretation Bs \

! lex. P-68_) Ched tri I I I I

i] ler to Superintendent H I

irdon Novembe WI { eC» I

ern and their inte Opp U|

t} terpretat ot th Cd ty f }

policy (id., kx. Fy 1 L’-b¢ '

lividual identified Libatl

lumbial] [High } miu |

[ t tl Columl ti [ ho

epertoire is maybe YU |

Christma or «-n Kal ! r

remaining repertoire is not sufficient

November lb and: ZU04 (la | \ Li cNe

1 (No. 36-16).) Seventeen members of the Mapl

Lo

.

the performance requirements ofa holiday

group, (id., I&x. bk (N ex. P-(

'

it the Columbia high pchoo!l December

despite having done so in the past, noted tt:

ina December 1, 2004 letter. Ud., lex. It (No

) Steve Loneyvan, the mayor ol Kopota,

New Jersey, contacted puperinte ndent Hioroschak on

December 16, 2004, to request “permission toassemblk

people of the street outside of Columbia Haigh School

mn December Zl, ZO04 at o-O00 PM for a testive

presentation of traditional Chirstmas Carols and

Hanukkah Hymns.” (d_., kx. Il (No. 36-11), lex. P53

M J4xs. 1-Dd D6.) Supenntendent

dened Mr. Lonepa permission. (Cd

eet )

ccordinyg to the programs of concerts during and

after 2004, songs with reliyious content that have been

performed in the School District incluae — (1) Concerto

hatto per la notte de natale: (2) Wade

Waters of Babylon; (4) Agnus Dei/Cum

ctis: (5) Laudamus ‘Te; (6) Jubilate; (7) Ich willdem

Hern; and (4) Cum Sancto Spiritu. (Dets. Supporting

Mr at Y see ONeill Cert., lexs. M (437-16) & N (37-3 7).)

According to Mr. Cook, Policy 2270 “didn't prohibit all

music, but only “prohibited music based on

or themes familiar — or themes consistent with picce:

commonly assojated with the holiday at the time of

the holiday.”’ (PL’s Mot. for Summ. J., kx. C CNo. 36-6)

(atv y Music teacher:

Copblineue qd Lo lene I) holiday ‘ Oye that ul; ed Lo bye

tha December concert: in thet

aled that sonys celebrating

hipaous holiday uch as Kwanza purportedly is, can be

{ rlormed during? Uh December concerts (Pl’s Mot. for Summ

bx bk (No 36

root as wellas other holiday music such as thie

Nuteracke) (Id., lux. I (36-34) at 43:5-186- ONeill

(cert lex J. (No. 437-15) at 43:5-44:7.) Director of Fine

Arts pantoro contirmed that jn performance conc rt

certain| selections would not be allowed, but “{ijn the

curmculum they would be allowed to be taupht

(C) Ned Cer I,» li (No i lip) at 32:6-13.)

pirecvor o} bine Arts opantvoro continues lo review

rOoyrall lO! Liat Decembe r concert: As example, on

NOVEMbEe! Aes ZUQ00, at rece ved Lhe following « mal

Irom J usc Le ‘ches Vern Milles

}

Moth Middle school Bands and Orchestras will

rye? jt vantly pt riorming Lhe lohlowing piece

Qh, Holy Night

Ange) W liave bieard (On biigh

We Three King

N Ibe porned by the school choruse iInpviny

bic election Whisle MV pli y

hat onally asl pore rlormance > will bepin WIL 3

prayer and reading from the Holy senipture

PHOUGHT YOU MIGHT APPRECIATE OUR

MkeEORTS TO COMPLY WITH THE BOARDS

HOLIDAY MUSIC POLICY!!!

MMS ( oncert Monday vie 12th Y:- 30 a Ili

}

\

miter Wonderland

Donan Kthap yy

(OMe Concert Puesday, Vec doth, 9:30 an

Winter Wonderland

Dornan ithapsody

(}°] Mot lO! ; tI7riiti J ; MM ( (INO 36-6) HX uy

Qn October 10, 2005, the School Board adopted

new Poley 2270, Keligion in the Schools, which |

iuical to the old Pohey 2270, aside from it:

Ide]

exclusion of this languape- ~Music programs prepared

or presented by student groups as an outcome of the

ecurnmculum shall not have a religious orientation o1

focus on religious holidays.” (See ONeill Cert., lex. O

(No. 47-14) at SQ0O14%.) In addition, on that same

date, the School District's administration adopted

Repulation 2270, Keligion in the Schools, to implement

the new Pohey 2270 Kepgulation 22/0 include:

headings such as “Teaching of Religion as Part of the

Curnculum, “Kelivion as part of the Music and Art

Curncula,” and “Celebration of Religious Holiday:

Probibited” CUd., lux. P CNo. 37-19).)

Vlaintiff filed this Complaint in this action on

December 14, 2004, and his Amended Complaint on

March 22, 2005 Viaintill allepes a civil rights

violation under the lurst and Itourteenth Amendment:

to the United States Constitution and 42 USC

1965, asserting that “Defendants have conveyed the

Impernmussible, government-sponsored messape of

disapproval of and hostility toward religion, including

(Christianity, in violation of the Hstablishment Clause,’

(the “Kstablishment Clause claim”), (Am. Compl. (No

5) 421), and that “Defendants have unconstitutionally

deprived Plaintuffand his minor children of their night

A 4a

o receive information and ideas, their mght to learn

ind ther mpght to academic freedom, which = are

ruaranteed under the First Amendment (the “first

‘ . i qi ¢«

mendment claim (id i 24)

on May J6, 2005, Delendants filed a motion to

dismiss, Which the Court pranted on September 29

2005. Upon consideration, over Plaintilfs objection, of

Policy 2270, the Court concluded that “Vlaintiff]| ha[s]

not alleged any facts that if established would entitle

him] to any rehef under the Establishment Clause’

and that Plaintiffs claim under the First Amendment

to hus children’s right to receive information and

ideas Should be dismissed. (Op. (No. 13) at 16, 17.) On

October 5, 2006, the Third Circuit vacated the Court:

yf plembe r 29, 2005 Order and remanded the case for

further proceedings. The Third Circuit objected to the

Court's consideration of Policy 2270, noting that “the

policy Stratechuk describes 1s more restrictive than

the one set forth in the publicly available materials

meaniny that “the official policy was not ‘integral to or

expheitly rehed upon in the complaint.” Stratechuk v

Bd. of Hduc., 200 Fed. Appx. 91, 94 (3d Cir. 2006). The

Phird Circuit held that “a categorical ban on

exclusively religious music, enacted with the expres:

purpose of sending a message of disapproval ol

relipion, appears to state a claim under the First

Amendment.” Id

Phe Court recopnizes that the kstablhishment Clause is as much

» partol the First Amendmentas the “nght to receive informatio:

and ideas, thel}] mpht to learn, and thel| mght to academ:

freedom.” For ease, however, the Court will refer to Plaintiff:

Establishment Clause claim as the “First Amendmentclaim

Miaimmtill filed his motion for Sunmimary yudpment on

January IQ, 2006 followed by Welendants motion tor

urimary judgment on danuary 11, 200%, and thi

( oOurt bie ld oral ary? uri nt on thie LWoO motion: on July

Ss). ZUU0G

LEGAL STANDARD

umimary judgment is appropriate where the

moving party establishes that “there 1s no genuine

issue as to any material fact and that [it] is entitled to

a judgement as a matter of law” Fed. kt. Civ P?. 56(ce)

A factual dispute between the parties will not defeat a

motion lor Summary judgment unless it is both

genuine and material. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-446, 106 5. Ct. 2505, Z510

(]9%6). A factual dispute is genuine if a reasonable

jury could return a verdict for the non-moving party,

and it is matemal WH, under the substantive law, it

would affect the outcome of the suit. Id. at 248. The

moving party “always bears the initial responsibility of

informing the district court of the basis for its motion

and identifying those portions of ‘the pleadings,

deposition: answers to interrogatories, and

admissions on file, together with the affidavits, if any,

whichait believes demonstrate the absence of a genuine

issue of maternal fact (clotex Corp. v. Catrett, 477/

U.S. 317, 323. 106 S. Ct. 2548, 2553 (1986)

?

(Qnce the moving partly has carmed its burden

under Kule 56, “its opponent must do more than

SlpLy Show La i@re is Some metaphysical doubt as

ply sl hat tl phy | doubt

to the material facts in question.” Matsushita lec

Indu: Coo. V Zenith Kadio Corp., 475 US O44, O86,

1065S. Ct. 1348, 1356 (1986). ‘To survive a motion for

summary judgment, the non-moving party must

9a

present more than a mere scintilla of evidence in his

favor. Woloszyn v. County of Lawrence, 396 F.3d 314

o19 (3d Cir. 2005). The non-moving party must go

beyond the pleadings and, by affidavits or other

evidence, designate specific facts showing that there is

a genuine issue for trial. Fed. It. Civ. P. 56(e); Celotex,

477 US. at 3824. “Conclusory statements, peneral

denials, and factual allegations not based on personal!

knowledge fare} insufficrent to avoid summary

judgment.” Olympic Junior, Inc. v. David Crystal, Inc

463 2d 1141, 1146 (3d Cir. 1972)

’

At the summary judgment stage the courts

function is not to weigh the evidence and determine

the truth of the matter, but rather to determine

whether there is a genuine issue for trial. Anderson,

477 U.S. at 249. In doing so, the court must consirue

the facts and inferences in the light most favorable to

the non-moving party. Id. at 255; Curley v. Klem, 29%

liosgd 271, 2/6-77 (3d Cir. 2002)

DISCUSSION

There is no genuine issue of material fact(s)

between the parties” ‘There are intense clashe:

Phere is a dispute between Plaintafl Michael Stratechuk and

Defendants as to the source of the policy restricting the

performance of holiday music during the December concert:

Plaintiff asserts that he has no issue with Policy 2270, and

instead, his issue is with the October 29, 2004 memorandum,

which he claims created an entirely new policy with respect to the

performance of holiday music during the December concert

Defendants, however, arpue that the October 29, 2004

memorandum simply presented an interpretation of certain

language that was already a part of Policy 2270 re... “[mlusi

between them as to the lepalimport and significance

ol the undispute d facts

Phe Supreme Court “ha: long recognized that local

School board: have broad discretion if) the

manapement of school affairs.” Bd. of Educ., Island

‘Trees Umion Free Sch. Dist. No. 26 v. Pico, 457 ULS

853, 863, 102 5. Ct. 2799, 2806 (1982). As a result,

“Iclourts do not and cannot intervene in the resolution

of conflicts which arise in the daily operation of schoo!

systems and which do not directly and sharply

implicate basic constitutional values.” Epperson v

Arkansas, 893 U.S. 97, 104, 89.5. Ct. 266, 270 (1968)

programs prepared or pre ented by student groups as an outcome

of the curriculum shall not have a religious onentation or focus on

relipnous holiday

fhe Court finds that the source of the policy restricting the

performance of holiday music during the December concerts 1s

Policy 2270, viewed through the interpretive lens of the October

‘9 2004 memorandum. ‘The October 29, 2004 memorandum was

an outgrowth of the October 14, 2004 meeting. The purpose of

that meeting was “to review the requirements of Policy 2270

and to resolve various parent concerns regarding the

inplementation of the policy.” (O'Neill Cert., kx. 1 CNo. 37-12) at

§8QO0142.) Although the meaning of the terms “focus op relipnous

holidays” chanped after the October 14, 2004 meeting and the

issuance of the October 29, 2004 memorandum, Policy 2270 still

remaimed the source of the School Distmet'’s policy regarding the

performance of holiday music during the December concerts. The

October 29, 2004 memorandum simply presented — the

reinterpretation of Policy 2270, as apreed to during the October

14. ZOOA meeting

Heremafter, the Court will refer to the policy restricting the

performance of holiday music during the December concerts as the

“reimterpretation of Policy 2270

ola

Courts, however, must not ignore that “[t}he vigilant

protection of constitutional freedoms 1s nowhere morte

vital than in the community of American schools.” Id

(quoting Shelton v. ‘Tucker, 864 U.S. 479, 487, 815. Ct

247, 251 (1960))

Plaintiff Michael Stratechuk asserts that the

interpretation of Policy 2270 violates his children:

nights under the [¢stablishment Clause and “theu

night to receive information and ideas, their right to

learn, and their npht to academic freedom’ in violation

of the First Amendment, necessitating this Court t

overcome the deference that it would traditionally pive

to decisions of a local school board The Court

concludes, however, that the interpretation of Policy

2270 does not violate the Establishment Clause or

Plaintiffs children’s other First Amendment right

The Establishment Clause Claim

Plaintiffs first claim is that the interpretation of

Pohey 2270 violates the Kstablishment Clause because

it “convey |s} the impermussible, povernment-sponsored

message Of disapproval of and hostility toward

religion. According to the Establishment Clause,

“Congress shall make no law) respecting an

establishment of religion.” U.S. Const. amend. |

Contained within this Clause ts “the principle that the

lMirst Amendment forbids an official purpose to

disapprove of a particular religion or of religion in

general, Church of the Lukumi Babalu Aye, Inc. y

City of Hialeah, 508 U.S. 520, 5382, 118 8S. Ct. 2217

2226 (1993) as “|thhe First Amendment mandate:

governmental neutrality between relipion and religion,

and between religion and nonreligion.” Epperson, 393

US. at 104

analyze a claim under the’ Establishment

courts have traditionally utilized the

Lhree-pronged test first articulated by the Supreme

Court in Lemon v. Kurtzman, 4038 US

2105 (197)) lLJnder the Lemon test

r

Although the Lemon test has becn repeatedly enticized, see, e.g

Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 US

384, 398-99, 1lld Bb. Ct. 2141, 2150-51 (1993) (scaha, J

concurmng) Gikening Lemon to “some phoulina late-night horror

movie that repeatedly sits up in its prave and shutiles abroad

alter being repeatedly killed and burned”), itstidl remaios a viable

test for determining whether a povernmental action violates the

kstablishment Clause, see Me reary County, Ky. vo Am. Civil

laberties Unison of Ky., 545 US. 844, 859-67, 125 S. Ct. 2722

2132-374 (2005) (referencing Lemon's purpose prony), Borden v

och. Dist of the Pwp. of EF. Brunswick, 523 F.3d 153, 175 (3d Cu

2008) Cisting the Lemon test as one of three tests for determining

whether governmental action violates the Establishment Clause)

Additionally, courts have utilized two other test: the coercion

test and the endorsement test — to analyze Establishment Clause

claims. Despite the existence of these other tests, however, the

Court concludes that the Lemon test is the most appropriate fo

determining whether the interpretation of Policy 2270 violates thi

bestablishment Clause

“The coercon test look: atl whether thre PovVeriiMent 1

coercting} anyone to support or participate in religion or at

exercise. Borden, 523 F.3d at 175 1.18 (quoting Lee vo Weisman,

Of/, 087, 1125 Ct 2649, 2655 (1992))) Although the

oercion test “focuses primarily on goveroment action in publi

education,’ Modrovich v. Allegheny County, Pa, 385 F.8d 3897

100 O01 (4d Cir. 2004), it is inapplicable to this matter because

Plaintiff does not allege that the interpretation of Policy

I id a COCTCLVG elfect Ol his childre 1

the endorsement test asks whethera reasonable observe!

familiar with the history and context of [a] display would perceive

la} display as a government endorsement of religion.” Id. at 401

Despite anearher Phird Circuit opinion limiting the endorsement

Violate: Line I tablishment Claus if any Ol tte

following are true — (1) it lacks a secular purpose; (2)

its principal or primary effect advance or inhibit

religion or (3) 1t Toste! anh exc Ive ¢ hanelemny {

with reli~ion OS U it b4 l

A. “Pur pose” s ony

In applying the purpose [prong], it 1s appropriate

lo ask ‘whether povernments actual purpose 1s to

endorse or disapprove of religion Wallace \ daltires

1/2 Ud. 38, 06, 100 5. Ct. 2479, 2489 (1985). OPP fh

purpose prong of Lemon only requires some secular

purpose, and not ‘that the purpose: are exclusively

seculal Kreethought Soc y of Greater Phila. \

Chester County, 334 ti3d 247, 262 (38d Cir. 2003)

(quoting Lynch v. Donnelly, 465 U.S. 668, 681 n.6, 104

= ae e R355, 1363 nb (1954)) Accordinely thre

upreme Court “has invalidated legislation o1

povernmental action on the ground that a secular

purpose was lacking only when it has concluded

there was no question that the statute or activity wa

motivated wholly by religious consideration Lynch

4o5 US. at 680

{ | l & «id Involving r¢ lig ou adi play il } vt Liiibe |

property, id, 385 F.3d at 401; see Freethought Soc’y of Greate

Phila. v. Chester County, 334 F.8d 247, 250, 257, 258 (3d Ci

2003), ‘Tenatly keruv Ass'n, Ine. vo Borough of ‘Tenafly, 309 1

144, 174 (38d Cir, 2002), the Third Circuit later stated generally

that “jt}he endorsement test applies ‘ijn cases inv ving State

parliopation in a religious activity, Borden, 523 F.3d at 1

(Q)

|

voting Santa Fe Indep. Sch. Dist. v. Doe, 530 US. 290, 308, 120

>. Ll 2266, 22178 (2000)) Regardless of the exApansiveness ot the

applicability of the endorsement test, however, the Court

concludes that this matter does not involve a religious display o1

rovernment properly or st ile partici palion in a relipuou activity

hile the Court i: iormally deferential t

but. iW

State's articulation of a secula, purpose, it is required

that the statement of such purpose be sincere and np

asham, Kdwards \y Aguilar is? US. 5/8. DSO

Od Ss. Ct. Zod, ZOlY (1987) because the purpo

prong is not a pushove! or any secular claim

McCreary County, Ky. v. Am (‘ivil Liberties Union of

Ky., 545 U.S. 844, 864, 125 8. Cte. 8722. 9736 (2005

“The eyes that look to purpose belong to an “objective

observer, one who take: account ot the traditional

external signs that show up in the “text. legislative

history, and implementation of the statut (

comparable official act.” Id. at 862. Overall, however:

the Third Circuit has stated that thi purpose pron

“a ‘low threshold, and courts are penerally deferential

lo the rovernments prottered secular purpose a hos

it | lemitimate. Modrovich \ \llepheny County

ra Ssh | cd 3OYO% 1] (8d Cy LUO) (Quotil

ree thought 334 F.3d at 26/7)

Le fendant asserl Cricat mieiat perk yaanueal.

celebratory religous music al schoo! SPOnSOrCd CVE

prohibited because suct perlormance are Dp

necessary to achieve the specific poals of the 1

curriculum and could be perceived a an overt

endorsement of relhgion or an improper toc

relimious holidays (Dets- Be. in ¢ Yop tok Not. f

umm. J. (No. 43) (Defs” Opp. Br.) at 5-6, &, 12-1

[In other words, Defendants contend that “[tlhe Policy

written and currently interpreted, 1 clearly

designed With t tre roal Ot AVOoIdING pote il

Establishment Clause violator Del HUpPport

at it 1S

Piaintilf respond howevel that there 1

requirement under the Establishment ¢ ruse that tl

fagtous holiday

Boat 59:23-25). As such even if the Establishment

Clause does not necessitate Defendants’ actions, the

evidence convinces the Court that Defendants’ actions

were motivated by their professed purpose of

prevention of an overt endorsement of religion or an

improper focus on religious holidays.

Despite assertions to the contrary, Plaintiff has

presented no evidence to support his claim that

Defendants’ stated purpose was a sham. Moreover,

Plaintiff has presented no evidence to support the

notion that the purpose behind Defendants’

interpretation of Policy 2270 was to show disapproval

of religion. In contrast, there is ample evidence to

support Defendants’ claim that the purpose of the

interpretation of Policy 2270 was to prevent an overt

endorsement of religion or an improper focus on

religious holidays. As a result the Court is satisfied

that the interpretation of Policy 2270 had a secular

10

purpose

Plaintiff also claims that “based on the totality of the evidence,

the only reasonable inference is that the purpose of this policy was

to specifically ban the performance of CAristmas music.” (PI.’s

Supporting Br. at 17; PL’s Opp. Br. at 17.) Plaintiff believes that

“(whithout question, Christmas was the target of this policy from

its inception” because “Ms. Cohen, the close acquaintance of

former board member Shelly Slafkes and the parent who lodged

the initial complaint that started the policy revision process, was

opposed to Christmas religious music.” (PL’s Supporting Br. at 17;

Pl’s Opp. Br. at 17.) Defendants respond that “Policy 2270 is

religiously neutral and bans the performance of any religious

music which is celebratory of religious holidays,” noting that

“Hanukkah music, for example, is included within the ban.”

(Defs” Opp. Br. at 7-8.)

According to the Supreme Court, “lijJf someone in the

59a

B. “Effect” Prong

“The effect prong asks whether, irrespective of

government's actual purpose, the practice under

review in fact conveys a message of endorsement or

disapproval.” Lynch, 465 U.S. at 690 (O’Connor, J.,

concurring). Accordingly, courts “must determine

whether, under the totality of the circumstances, the

challenged practice conveys a message favoring or

disfavoring religion.” Am. Civil Liberties Union of N.J.

v. Black Horse Pike Reg’] Bd. of Educ., 84 F.3d 1471,

1486 (3d Cir. 1996). In analyzing a governmental

action under the effect prong, the perspective is that of

the “reasonable observer.” Id. Courts must look to

“the ‘history and ubiquity’ of a practice . . . because it

provides part of the context in which a reasonable

observer evaluates whether a challenged governmental!

practice conveys a message of endorsement” or

disapproval of religion. County of Allegheny v. Am.

Civil Liberties Union Greater Pittsburgh Chapter, 492

government hides religious motive so well that the “objective

observer, acquainted with the text, legislative history, and

implementation of the statute,” . cannot see it, then without

something more the government does not make a divisive

announcement that in itself amounts to taking religious sides.”

McCreary, 545 US. at 863 (internal citation omitted). The text of

Policy 2270 states that “|[m]usic programs prepared or presented

by student groups as an outcome of the curriculum shall not have

a religious orientation or focus on religious holidays.” (O'Neill

Cert., Ex. A (No. 37-4) at SO0141.) The October 29, 2004

memorandum provides that “[wJe will avoid any selection which

is considered to represent any religious holiday, be it Christmas,

Hanukkah, etc.” (Id., Ex. I (No. 37-12) at SO0143.) The broad

applicability of the interpretation of Policy 2270 undermines

Plaintiffs argument that its purpose is specifically to ban

Christmas music

60a

U.S. 573, 630, 109 S. Ct. 3086, 3121 (1989) (O'Connor,

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

Plaintiff argues that “(t]he clear effect of the School

District’s policy is to show disapproval of religion in

violation of the Establishment Clause.” (Pl.’s

Supporting Br. at 24.) Plaintiff notes that “the

reasonable observer would know that the School

District has adopted and enforces an official policy that

bans only religious music or music associated with a

religious holiday and that it was implemented to ban

students and student groups from playing traditional

Christmas music... at various event during the 2004

Christmas holiday season,” that “the MLK Gospel

Choir was permitted in the past to perform traditional

Christmas religious music at the Columbia High

School Holiday Assembly but has now been banned

from performing at this event,” that “the high school

brass ensemble has been banned from performing any

traditional Christmas songs and carols . . . at these

concerts,” and that “it is permissible, from a

constitutional perspective, for a school district to allow

religious music, including Christmas music, in its

public schools and at other school-sanctioned events.”

(ld. at 36-37; Pl.’s Opp. Br. at 34-35.) Moreover,

according to Plaintiff, “the public perception and

reaction to the policy and its implementation

demonstrate that the challenged policy was

‘sufficiently likely to be perceived’ by the community as

a ‘disapproval’ of religion, irrespective of the School

District’s alleged purpose for adopting it.” (PI.’s

Supporting Br. at 20.)

Defendants assert that “it is clear that the effect of

the defendants’ current policy is one that encourages

and promotes complete religious neutrality, neither

bla

favoring nor demonstrating hostility toward religion.”

(Defs. Opp. Br. at 14.) According to Defendants, “|t}he

narrow restrictions placed upon the performances by

the MLK Gospel Choir and the high school brass

ensembles are grounded in this policy of complete

religious neutrality and are reasonable and limited in

their scope.” (Id.)

The Court agrees that before the interpretation of

Policy 2270 in 2004, certain religious holiday music

was performed at the December concerts, including by

the Columbia High School Brass Ensemble, and the

MIL.K Gospel Choir participated in the concerts. To be

sure, wholesale changes to the programs of the

December concerts alone and without more might send

a message of disapproval to the reasonable observer.

The Court also acknowledges the complaints by

members of the community, and by the “district music

teachers.”. Such complaints, if informed by “the

totality of the circumstances,” may assist the Court in

its consideration of the perspective of the reasonable

observer.'' The Court, however, finds that there is

ample evidence available to the objective observer

regarding the interpretation of Policy 2270 in the

totality of circumstances, which removes any claim

that it conveys a message of disapproval of religion.

The text of Policy 2270 clearly indicates an effort to

include religious material when appropriate, provided

that it is presented objectively and that it fits within

the curriculum. In its introductory section, Policy

Al ry :

hese complainants, however, may not serve as proxies for the

reasonable observer, as it is unclear of the extent of their

knowledge of the totality of the circumstances

62a

2270 states that “[wle are cognizant of the role of

culture, including religion, in the development of our

society and believe that objectively teaching about

religion and its role in the social and _ historical

development of civilization does not violate’ the

religious neutrality of the public schools.” (O'Neill

Cert., Ex. A (No. 37-4) at SO0140.) With respect to

curricular objectives, Policy 2270 “|plermits the

inclusion of religious literature, music, drama, dance

and visual arts in the curriculum provided that it

achieves specific goals of the written curriculum in the

various fields of study; that it is presented objectively;

and that it neither inhibits nor advances any religious

point of view.” (Id.) In particular, Policy 2270 requires

“lalccommodatlion of] student-initiated expression in

response to questions or assignments which reflect

their beliefs or non-beliefs about religious themes” and

“npermit[s] religious symbols to teach about historical

or cultural context.” Cid.) When specifically dealing

with religious holidays, Policy 2270 directs that

“opportunities to learn about cultural and religious

traditions should be provided within the framework of

the curriculum.” (Id., Ex. A at 500141.) Moreover,

Policy 2270 allows for the use of religious music,

provided “it achieves specific goals of the music

curriculum.” (Id.)

There is no doubt that the text of Policy 2270 also

places restrictions on religion. Religious symbols are

not permitted “to promote or celebrate religious

concepts, events or holidays.” (Id., kx. A at SO00140.)

“Decorations with religious significance are not

permitted.” (Id., Ex. A at SO0141.) And, of

importance to this matter, “[m]usic programs prepared

or presented by student groups as an outcome of the

curriculum shall not have a religious orientation or

63a

focus on religious holidays.” (Id.) These restrictions,

are tailored to ensure the objective presentation of

religion and to confine religion to the educational

curriculum. Asa result, the objective observer, armed

with knowledge of both Policy 2270’s accommodations

to religion and restrictions on religion, would not

conclude that the text of Policy 2270 sends a message

of disapproval of religion."”

The implementation of Policy 2270 reinforces this

conclusion, particularly regarding the School District’s

treatment of religious music. Although — the

interpretation of Policy 2270 restricts the performance

of holiday music during the December concerts, music

teachers have indicated that they continue to teach

those songs in the classroom, (see P1.’s Mot. for Summ.

J., Hx. I (No. 36-14) at 43:5-10; O'Neill Cert., Ex. L (No.

37-15) at 43:5-10), and Director of Fine Arts Santoro

has confirmed the appropriateness of this practice,

(O’Neill Cert., Ex. H (No. 37-11) at 32:8-13; O’Neill

Cert., Ex. J (No. 37-13))."" The interpretation of Policy

In fact, it is most likely that the objective observer would

conclude that the text of Policy 2270 sends a message of neutrality

towards religion. Statements such as “|t}he use and/or display of

religious symbols should provide an environment whereby

students of all faiths, beliefs or non-beliefs can participate without

betraying their own faith or beliefs” and “special effort must be

made to ensure the activity is not devotional and that pupils of all

faiths and beliefs can join without feeling they are betraying their

own faith or beliefs,” (O’Neill Cert., Ex. A (No. 37-4) at SO0O141),

reveal a sensitivity towards ensuring that the School District

maintains complete neutrality in matters of religion

'* The Court recognizes that the implementation of Policy 2270

could indirectly influence curricular decisions made by the School

District’s music staff because the programs performed during the

64a

2270 also has not affected the performance of songs

with religious content such as Concerto VIII Fatto per

la notte de natale, Wade in the Water, Waters of

Babylon, Agnus Dei/Cum Sanctis, Laudamus ‘Te,

Jubilate, Ich will dem Hern, and Cum Sancto Spiritu.

(Defs.’ Supporting Br. at 9; see O’Neill Cert., Eexs. M

(37-16) & N_ (37-17).) It simply restricts the

performance of holiday music at the time of the

religious holiday that the music honors. (P1.’s Mot. for

Summ. J., Ex. C (No. 36-6) at 77:6-12.) Given the

continued performance of religious songs and the

continued teaching of holiday music in the classroom,

the objective observer would not determine that the

implementation of Policy 2270, with respect to the

School District’s treatment of religious music, sends a

message of disapproval of religion.

The content of the discussions leading to the

interpretation of Policy 2270 further undermine any

arguments that it conveys a message of disapproval of

religion. At Superintendent Horoschak’s annual

performance review, the School Board raised concerns

that “you really can’t balance all religious groups in

these representations in these types of performances.”

(O'Neill Cert., lex. B (No. 37-5) at 113:9-11.) Assistant

Superintendent Memoli stated that discussion at the

October 14, 2004 meeting involved ensuring that the

administration is “treating everyone on an equal

basis,” (Defs.’ Reply Br., Ikx. B (No. 45-4) at 53:7-10),

and that “no child feels uncomfortable in celebrating a

December concerts are typically an outgrowth of the curriculum

The Court, however, is unaware of any evidence indicating that

the implementation of Policy 2270 has actually had an effect on

the curriculum or, if it has, the magnitude of that effect

Oba

holiday that wasn’t their own,” (id., Ex. B at 59:24-25).

The evidence suggests that had the objective observer

attended Superintendent Horoschak’s annual

performance review or the October 14, 2004 meeting,

he would have likely concluded that the interpretation

of Policy 2270 conveys neutrality towards religion, not

disapproval of religion.

The interpretation of Policy 2270 expressly restricts

the performance of holiday music, which changed

earlier practices within the School District. This

result, however, does not automatically convey a

message of disapproval of religion because as the

Supreme Court observed in County of Allegheny, “lal

secular state, it must be remembered, is not the same

as an atheistic or antireligious state.” 492 U.S. at 610.

yy emphasizing the objective presentation of religion

within the confines of the curriculum, continuing to

allow the performance of religious music that does not

focus on a particular holiday and to teach all religious

music, even holiday music, inside the classroom, and

acting on concerns of maintaining the appearance of

neutrality within the School District, Defendants do

not convey a message of disapproval of religion

through the interpretation of Policy 2270

C. “Excessive Entanglement” Prong

“There is no exact science in gauging the

entanglement of church and state.” Roemer v. Bd. of

Pub. Works of Md., 426 U.S. 736, 766, 96 S. Ct. 2337,

2354 (1976). But, “laln entanglement must be

“excessive’ before it runs afoul of the Establishment

Clause, and this requires more than mere

‘lilnteraction between church and state,’ for some level

of interaction has always been ‘tolerated.” Child

66a

Sch. Dist., 386 F.3d 514, 534 (38d Cir. 2004) (quoting

Agostini v. Felton, 521 U.S. 203, 233, 1175S. Ct. 1997,

2015 (1997)). According to the Supreme Court, “the

factors we use to assess whether an entanglement is

‘excessive’ are similar to the factors we use to examine

‘effect.” Agostini, 521 U.S. at 232.

According to Plaintiff, “school officials will be

required to screen music to determine whether it is

religious or secular in nature,” and “|djrawing such

distinctions between secular and religious themes will

necessarily cause an entanglement with religion.”

(P].’s Supporting Br. at 37-38; Pl.’s Opp. Br. at 35-36.)

Plaintiff concludes that “rather than making

distinctions based on criteria related to learning and

education, the School District is making distinctions

based purely on religious criteria .. . thereby

creating an impermissible entanglement.” (P1.’s Opp.

Br. at 37.)

Defendants argue that “[t}he entire objective of the

School District’s current Policy is to avoid government

entanglement with religion” and to “avoid becoming

entangled in disputes and disagreements over the

celebration of religious holidays, by maintaining a

policy of complete religious neutrality when it comes to

school sponsored assemblies and activities.” (Defs.’

Supporting Br. at 19-20.) Defendants maintain that

“while enforcement of Policy 2270 has required some

minimal screening of music selections, there is no

suggestion in the record that the District’s current

policy has resulted in excessive entanglement issues.”

(Defs.’ Opp. Br. at 17.)

67a

Policy 2270 states that “[m]usic programs prepared

or presented by student groups as an outcome of the

curriculum shall not have a religious orientation or

focus on religious holidays.” (O’Neill Cert., kx. A (No.

37-4) atSO0141.) The October 29, 2004 memorandum

indicates that “[ajll programs will be reviewed and

approved” by Director of Fine Arts Santoro and

instructs the School District music staff to “avoid any

selection which is considered to represent any religious

holiday.” (I[d., Ex. I (No. 37-12) at SO0143.) Clearly,

this screening of musical selections required by the

interpretation of Policy 2270 involves some

entanglement with religion.

If the Court were to conclude that the

interpretation of Policy 2270 fostered an excessive

entanglement with religion, however, Defendants

would find themselves in a “Catch-22” — an action

taken specifically to avoid an Establishment Clause

violation, in and of itself would cause’ an

Kstablishment Clause violation. The Court is

disinclined to prompt this predicament, particularly

given that it would create the risk ofan Establishment

Clause violation every time that a governmental entity

engaged in decisionmaking regarding a religious topic.

The Establishment Clause “is a blurred, indistinct,

and variable barrier depending on _ all the

circumstances of a particular relationship,” Lemon,

403 U.S. at 614, and governmental entities must feel

free to navigate the hazy contours of the

Establishment Clause in order to achieve the mandate

of governmental neutrality.

Plaintiff characterizes the oversight that the

interpretation of Policy 2270 requires as “|dJrawing . . .

distinctions between secular and religious themes.’

68a

(Pl.’s Supporting Br. at 37-38; Pl’s Opp. Br. at 36.)

This type of oversight — this drawing of distinctions

between secular and religious themes — strikes the

Court as no different from the screening that school

districts engage in every day to ensure neutrality in

matters of religion. Indeed, a similar drawing of

distinctions between secular and religious themes

occurs within this School District with regard to the

treatment of holidays in the classroom. (O’Neill Cert.,

Ix. A (No. 37-4) at 500141 (“Religious holidays are not

to be celebrated in the schools, except in the form of

the secular nature of that holiday.”).)

What the interpretation of Policy 2270, and Policy

2270 as a whole, seek to achieve is the objective

presentation of religion within the School District;

what they seek to avoid is the overt endorsement of

religion within the same. Although accomplishment of

these goals necessitates some involvement or

entanglement with religion, such entanglement is not

excessive. To conclude otherwise ignores the evidence

and would undermine governmental efforts to comply

with the Establishment Clause.

The Court finds that the interpretation of Policy

2270 has a valid secular purpose, does not convey a

message of disapproval of religion, and does not foster

= = = ry ‘

an excessive entanglement with religion. The Court

grants Defendants’ motion for summary judgment and

denies Plaintiffs motion for summary judgment with

respect to the Establishment Clause claim.

69a

2. The First Amendment Claim

Plaintiff's second claim is that the interpretation of

Policy 2270 violates his children’s right to receive

information and ideas, right to learn, and right to

academic freedom. The parties’ arguments with

respect to the First Amendment claim amount to a

disagreement about the proper precedent upon which

the Court should rely. According to Plaintiff, Board of

Kducation, Island ‘Trees Union Free School District No.

26 v. Pico, 457 U.S. 853, 102 S. Ct. 2799 (1982), serves

as the star;ting point for the Court’s analysis.

Defendants, however, refer to Hazlewood School

District v. Kuhimeier, 484 U.S. 260, 108 S. Ct. 562

(1988), as the authority for the Court’s consideration

of the First Amendment claim.

When the Court addressed the First Amendment

claim in its September 29, 2005 Opinion, it determined

that Kuhlmeier was the appropriate precedent for this

case. (Op. (No. 13) at 17.) Although the Third Circuit

vacated the September 29, 2005 Order, its decision

only specifically addressed the Court’s conclusions

with respect to the Establishment Clause claim and

did not call into question the Court’s holding regarding

the First Amendment Claim. After reviewing the

evidence presented for these motions for summary

judgment, the Court sees no reason to deviate from its

earlier conclusions regarding the First Amendment

claim and holds that Kuh! meier, not Pico, provides the

framework for analysis of the First Amendment claim

and that the interpretation of Policy 2270 does not

violate Plaintiffs children’s right to receive

information and ideas, right to learn, and right to

academic freedom.

70a

A. Pico versus Kuhlmeier

Pico involves the constitutionality of a school

board’s decision to remove certain books from its

school districts’ libraries. 457 U.S. at 856-58.

Kuhlmeier involves the constitutionality of a school

principal’s decision to delete two pages of

student-written articles from a school newspaper. 484

U.S. at 262-64. When superficially comparing the two

cases, Pico deals with the right to receive ideas,

whereas Kuhlmeier deals with the nmght to express

ideas. Because the First Amendment claim is based

upon Plaintiffs children’s right to receive information

and ideas, right to learn, and right to academic

freedom, as opposed to his children’s right to perform

holiday music, it appears that this case may align

more closely with Pico. Pico, however, expressly limits

its holding to its facts, whereas Kuhlmeier’s holding

reaches beyond the scope of its factual context.

emphasizes “the limited nature of the substantive

question presented by the case,” 457 U.S. at 861-62,

summarizing it in the following manner: “|Djoes the

Kirst Amendment impose any limitations upon the

discretion of petitioners to remove library books,” id. at

863? Pico then proceeds to discuss at great length “the

special characteristics of the school library,” id. at

868-69, and to reject arguments given “the unique role

of the school library” and “the regime of voluntary

inquiry that there holds sway” at the library, id. at

869. The Kuh|lmeier Court, on the other hand, broadly

describes the issue that it addresses as “whether the

First Amendment requires a school affirmatively to

promote particular student speech.” 484 U.S. at

270-71. ‘This issue, according to the Supreme Court,

dla

“concerns educators’ authority over school-sponsored

publications, theatrical productions, and = other

expressive activities that students, parents, and

members of the public might reasonably perceive to

bear the imprimatur of the school.” Id. at 271

The Court concludes that the December concerts

are more appropriately characterized as “expressive

activities that students, parents, and members of the

public might reasonably perceive to bear the

imprimatur of the school,” than compared with the

school library. Accordingly, regardless of how Plaintiff

presents his underlying rights, Kuhlmeier governs the

issues raised in this case."

B. Analysis Under Kuhlmeier

To analyze the interpretation of Policy 2270 under

Kuhlmeier, the Court must first address the threshold

issue of whether the December concerts are public

’ Even if the Court were to conclude that Pico was the

appropriate precedent for this matter, however, the Court finds

that the case does not support Plaintiffs position. According to

the plurality opinion, “[oJur Constitution does not permit the

official suppression of ideas,” so “iJf petitioners intended by their

removal decision to deny respondents access to ideas with which

petitioners disagreed, and if this intent was the decisive factor in

petitioners’ decision, then petitioners have exercised their

discretion in violation of the Constitution.” Pico, 457 ULS. at 871.

The Court has already concluded that the purpose underlying the

interpretation of Policy 2270 was to prevent an overt endorsement

of religion or an improper focus on religious holidays, not to show

disapproval of religion. As such the interpretation of Policy 2270

was not intended to deny Plaintiff access to ideas with which

Defendants disagreed and does not qualify as an _ official

suppression of ideas

T2a

fora. If the Court concludes that the December

concerts are not public fora, the Court must then

determine whether the interpretation of Policy 2270 is

« °,° 5

reasonably related to legitimate pedagogical

concerns.”

i. Forum Analysis

According to the Kuhlmeier Court, “school facilities

may be deemed to be public forums only if school

authorities have ‘by policy or by practice’ opened those

facilities ‘for indiscriminate use by the general public’

_ or by some segment of the public, such as student

organizations.” Id. at 267 (quoting Perry Educ. Ass’n

v. Perry Local Educators’ Ass’n, 460 U.S. 37, 47, 1035S.

Ct. 948, 956 (1983)). On the other hand, “[ijf the

facilities have instead been reserved for other intended

purposes, ‘communicative or otherwise,’ then no public

forum has been created, and school officials may

impose reasonable restrictions on the speech of

students, teachers, and other members of the school

community.” Id.

The Court is not aware of any evidence indicating

that “by policy or practice” the December concerts were

open for “indiscriminate use by the general public.” It

appears that students were not free to come on stage

to perform a musical number of their choice, as might

be the case in a school-wide talent show. ‘The School

District’s music staff carefully tailors the programs

that the students perform, and Director of Fine Arts

Santoro approves the programs ahead of time, a

practice that he followed even before the interpretation

of Policy 2270. The Court concludes that the

Necember concerts are not public fora.

(38

ii. Reasonable Relationship to Legitimate

Pedagogical Concerns

When dealing with “school-sponsored publications,

theatrical productions, and other expressive activities

that students, parents, and members of the public

might reasonably perceive to bear the imprimatur of

the school,” “lelducators are entitled to exercise

preater control over this . . . student expression to

assure that participants learn whatever lessons the

activity is designed to teach, that readers or listeners

are not exposed to material that may be inappropriate

for their level of maturity, and that the views of the

individual speaker are not erroneously attributed to

the school.” Id. at 271. Indeed, “|a]l school must .. -

retain the authority to refuse ... to associate the

school with any position other than neutrality on

matters of political controversy.” Id. at 272.

Because “ijt is only when the decision to censor a

school-sponsored publication, theatrical production, or

other vehicle of student expression has no valid

educational purpose that the First Amendment is so

‘directly and sharply implicate[d]’ . . . as to require

judicial intervention to protect students’ constitutional

rights,” any restrictions “over the style and content of

student speech in_ school-sponsored expressive

activities,” must be “reasonably related to legitimate

pedagogical concerns.” Id. at 273. According to the

Third Circuit, “|aJ wide variety of policy justifications

may pass muster under this test.”. Brody Through

Sugzdinis v. Spang, 957 F.2d 1108, 1122 (3d Cir.

1992). Specifically, ““reasonable’ grounds for content

based restrictions include the desire to avoid

controversy ... and an interest in maintaining the

appearance of neutrality . . . provided that these are

l4a

not simply pretexts for viewpoint discrimination.” Id

Gnternal citations omitted).

As discussed under the “purpose” prong of the

Lemon test, Defendants have provided sufficient

evidence to convince the Court that the interpretation

of Policy 2270 was intended to prevent an overt

endorsement of religion or an improper focus on

religious holidays. Just as that purpose was not a

sham, it was also not a pretext for viewpoint

discrimination. The Court finds that the

interpretation of Policy 2270 is reasonably related to

legitimate pedagogical concerns

Applying the standards articulated in Kuhlmeier to

this case, the Court concludes that the December

concerts are not public fora and that the interpretation

of Policy 2270 is reasonably related to legitimate

pedagogical concerns. The Court grants Defendants’

motion for summary judgment with respect to the

Kirst Amendment claim.

CONCLUSION

For the stated reasons, Plaintiff Michael

Stratechuk’s motion for summary judgment is denied;

Defendants Board of Education, South Orange

Maplewood School District, Brian F. O'Leary, and

Peter P. Horoschak’s motion for summary judgment is

pranted

August 28, 2008

T5a

s/William H. Walls

United States Senior District Judge

Appearances

Robert J. Muise, Esq.

Thomas More Law Center

24 Frank Lloyd Wright Drive

P.O. Box 393

Ann Arbor, MI 48106

Christopher A. Ferrara, Esq.

American Catholic Lawyers Association, Inc.

420 Route 46 Kast, Suite 7

P.O. Box 10092

Fairfield, NJ 07004

Attorneys for Plaintiff Michael Stratechuk

Michael F. O’Neill, Esq.

Purcell, Ries, Shannon, Mulcahy & O’Neill

One Pluckemin Way

P.O. Box 754

Bedminster, NJ 07921

Attorney for Defendants Board of Education,

South Orange Maplewood School District, Brian

I’. O'Leary, and Peter P. Horoschak

16a

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civ. No. 04-6189 (WHW)

[Filed August 28, 2008]

MICHAEL STRATECHUK,

individually and on behalf of his

minor children,

Plaintiff,

BOARD OF EDUCATION, SOUTH

ORANGE-MAPLEWOOD SCHOOL

DISTRICT; BRIAN F. OPLIEARY,

in his official capacity as Board

President, Board of Education, South

Orange-Maplewood School District;

PETER P. HOROSHAK, in his official

capacity as Superintendent, South

Orange-Maplewood School District,

Defendants.

ee ee ee ee Le ee

ORDER

Walls, Senior District Judge

Vila

This matter having been opened to the Court by

Plaintiff Michael Stratechuk, seeking summary

judgment on the first claim of the Amended

Complaint, and Defendants Board of Education, South

Orange Maplewood School District, Brian F. O’Leary,

and Peter P. Horoschak, seeking summary judgment

on all claims of the Complaint; and the Court having

considered the moving, opposition, and reply briefs and

having heard oral argument; and for good cause

shown:

It is on this 28th day of August, 2008,

ORDERED that Defendants’ motion for summary

judgment is GRANTED, and it is further ORDERED

that Plaintiffs motion for summary judgment is

DENIED.

s/William H. Walls ___

United States Senior District Judge

T&a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-3826

[riled December 30, 2009]

MICHAEL STRATECHUK,

Individually and on behalf of his

minor children,

Appellant

V

BOARD OF EDUCATION, SOUTH

ORANGE-MAPLEWOOD SCHOOL

DISTRICT; BRIAN F. O’LEARY,

In his official capacity as board

president, Board of Education, South

Orange-Maplewood School District;

PETER P. HOROSHAK, In his official

capacity as superintendent, South

Orange-Maplewood School District

Name eee eee eee eee

SUR PETITION FOR REHEARING

Present: SCIRICA, Chief Judge, SLOVITER, McKEE,

RENDELL, BARRY, AMBRO, FUENTES,

SMITH, FISHER, CHAGARES, JORDAN,

and HARDIMAN, Circuit Judges

19a

The petition for rehearing filed by Appellant

Michael Stratechuk in the above-entitled case having

been submitted to the judges who participated in the

decision of this court and to all the other available

circuit judges of the circuit in regular active service,

and no judge who concurred in the decision having

asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not

having voted for rehearing by the court en banc, the

petition for rehearing is denied.

sy the Court,

/s/ Dolores K. Sloviter

Circuit Judge

Dated: December 30, 2009

MLER/ce:

Christopher A. Ferrara, Esq.

Robert J. Muise, sq.

Michael F. O’Neill, Esq

Robert B. Hoffman, sq