# Appendix — Stratechuk v. Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1802%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2010 - **Citation:** 562 U.S. 828 ## Text APPENDIA rABLE OF CONTENTS Jpinion/ Judgement, United Stat ourt ol Appeal lo! the ‘Third ircult dated Novemb«e 24 ASLO bs. Wpinmion LJnited (Court District ol dated Aupu | \ppendix ¢ (Orde! ( nited (Court District dated Augu { Appendix |) (Order. LJnited Lal ourt | Appe i] oO! the third Curcurt dated December! st) ZU 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 iV. (Conclusion Le huk mmMitmM, htigati mm he vigorou overriding muscourt) tthe School District admu hool and there constitutional! govern the action ite schoo! {) nukanh § I id been ral hpince then ivi been eCXamned articularity Many dec LLVIPTOTLII i cite 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 aa = i y id trongly ey lige ge { Yuu gee r toward | LA? tL tie Ca onal selection WiInNLeI Wonderland rrosty Lhe ONowman el vu Wm cenLere ton Peace I al Oa nice le cl . for ttre High School the Bra roasenl cop rvoomre mu tal oadhere LON! pol y at tradition il carol must be elimin ed following mal i biil { Tri morandum Direct rol I it content In prea direct miqpuiric Irom th br. at 7.) A husic teacher IS ir; intoro clarified that “acco ich about the ditlerent 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1802%3A2. Public record. Not legal advice.