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CLEVER v. CHERRY HILL TWP. BD. OF EDUC.

December 2, 1993

FRED CLEVER et al., Plaintiffs
v.
CHERRY HILL TOWNSHIP BD. OF EDUCATION, Defendant



The opinion of the court was delivered by: JOSEPH E. IRENAS

 IRENAS, District Judge:

 I. INTRODUCTION

 The Christmas season brings with it not only sidewalk Santas, mercantile mania, and endless reruns of Its A Wonderful Life and Miracle on 34th Street, but also a spate of constitutional litigation testing the limits to which governmental or public bodies may legally join in the festivities. In this case the plaintiffs challenge the Policies of the Cherry Mill Board of Education in attempting to deal with issues which are both constitutionally abstruse and highly emotive.

 Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 and under the First and Fourteenth Amendments to the United States Constitution. This court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. Plaintiffs also assert state law causes of action under Article I, P 4 of the New Jersey Constitution and N.J.S.A. 18A:36-20 which are cognizable by this court pursuant to its supplemental jurisdiction under 28 U.S.C. § 1367(a). *fn1"

 This matter comes before the Court on cross-motions for summary judgment pursuant to Fed. R. Civ. P. 56. On November 24, 1993, this Court heard oral argument from the parties and reserved decision. For the reasons set forth below, this Court will deny plaintiffs' motion for summary judgment and grant defendant's cross-motion.

 II. BACKGROUND

 This case explores the constitutionally amorphous dividing line between the laudable educational goal of promoting a student's knowledge of and appreciation for this nation's cultural and religious diversity, and the impermissible endorsement of religion forbidden by the Establishment Clause of the United States and New Jersey constitutions.

 Plaintiffs include Cherry Hill taxpayers, parents of students who attend Cherry Hill public schools and the American Civil Liberties Union of New Jersey ("ACLU"), some of whose members are either Cherry Hill taxpayers or public school parents. *fn2" They have challenged the constitutionality of Policy JO adopted by the Cherry Hill Board of Education to govern "THE USE OF CULTURAL, ETHNIC, OR RELIGIOUS THEMES IN OUR EDUCATIONAL PROGRAM." This one-page statement is supplemented by an additional three-page document known as "Administrative Procedure C-17" and by two pages of "Guidelines For the Implementation of Policy JO and Administrative Procedure C-17." Copies of Policy JO, C-17 and the Guidelines are attached to this opinion as Exhibits A through C.

 All parties agree that the present student population of the Cherry Hill school district is both culturally and religiously diverse, although it is not disputed that the majority of the students are Christian and caucasian.

 Policy JO opens with the statement that it is the responsibility of the schools to "foster mutual understanding and respect for the rights of all individuals regarding their beliefs, values, and customs." It goes on to provide that instructional programs must be conducted

 
with sensitivity to the many religious beliefs existing within our student population . . . [and] must remain consistent with the law as interpreted by state and federal courts in accordance with the Constitution of the United States. Programs which teach about religion and its role in the social and historical development of civilization and in the social and political context of world events do not violate the religious neutrality of public schools. Schools may teach about but not promote religion.

 There is a recognition in Policy JO of the "special significance of seasonal observances and religious holidays." It should come as no surprise that the nature and extent of the "seasonal observances" contemplated by Cherry Hill for the Christmas and Chanukah holidays are at the legal and emotional heart of this litigation.

 Policy JO anticipates three types of public displays which might include religious symbols, only two of which are challenged in this litigation. Plaintiffs do not object to the display of religious symbols which are part of a "planned program of instruction." *fn3"

 What plaintiffs do challenge are (i) calendars which are to be maintained in each classroom and in one central location, Administrative Procedure C-17, P 4, and (ii) a display dealing with "cultural, ethnic, and religious customs and traditions of others during the appropriate season." Administrative Procedure C-17, P 5. Although Christmas is not mentioned in connection with this display, there is little doubt as to which "appropriate season" the drafters of this provision had in mind. *fn4"

 The use of classroom and central calendars is mandated in the elementary and junior schools and optional in high schools at the discretion of the principal. Seasonal displays are permissible, but not required, in any particular school.

 The calendars recognize a large variety of national, cultural, ethnic, and religious holidays *fn5" which are taken from a "district-approved list which is created in accordance with educational criteria, and which reflects the world's multi-cultural diversity." Administrative Procedure C-17, P 4. *fn6" In some instances the holiday is marked not only by words, but also by a symbol which, if the holiday is a religious one, may have religious significance. However, any such symbol is confined to the square representing the date of the holiday. A copy of symbols approved for use in connection with the implementation of Policy JO are attached to this opinion as Exhibit D. *fn7"

 Cherry Hill's policy also mandates that the calendars be used in conjunction with a list of books and other resource materials available in the school library relating to the holidays identified in the calendar. Teachers are provided with descriptions of each holiday to "be utilized by staff members as an educational resource throughout the school year. Id.

 In addition to recognizing Election Day, Veterans Day, Thanksgiving Day and American Education Week, the November calendar highlights the "Birthday of Baha'u'llah (Baha'i)" on the 12th, "Divali (Hindu)" on the next day, "Shichi-so-san Seven, Five, Three Festival (Japan)" two days later, and, finally, on November 29 "Nanak's Birthday (Sikh)" is recognized. Divali and Nanak's Birthday are also marked by what appear to be religious symbols.

 December's calendar recognizes nine days of significance including, appropriately if not ironically, "Bill of Rights Day" on the 15th. "Bodhi Day Buddha's Enlightenment," "Chanukah" and "Christmas" celebrated on the 8th, 9th, and 25th, are represented by religious symbols: a representation of Buddha, a menorah, and a Nativity scene, respectively. The African festival of "Kwanzaa" is on December 26 and depicted with a kind of candelabra which looks much like a menorah. Copies of the calendar used by the Cherry Hill Schools in November and December, together with the district approved descriptions of the holidays and events recognized in those calendars, are annexed to this opinion as Exhibits E through G. *fn8"

 We know less about the seasonal displays planned for a central location in each school because they did not exist at the time of argument in this case and will vary from school to school. In an admirable effort to parse First Amendment jurisprudence, Administrative Procedure C-17 tells us that:

 
The decorations and symbols used in such a display shall be examples of the cultural, ethnic, and/or religious holiday(s) that fall within that month. The symbols used shall be displayed for a period not to exceed ten school days. Any religious symbol which may be used shall be displayed simultaneously with at least one other religious symbol and at least one cultural and/or ethnic symbol. Any such display shall be accompanied by a written explanation that describes the cultural, ethnic, or religious significance of the symbols used in the display. The primary purpose of all such displays shall be to promote the educational goal of advancing student knowledge about our cultural, ethnic, and religious heritage and diversity.

 Whenever a display is going to include a religious symbol, all of its elements "shall be submitted to the Office of Deputy Superintendent for review and approval." Guidelines, P 2B.

 Paragraph 3 of the Guidelines also permits displays in "offices, lounges, media centers, etc." in the principal's discretion, provided that they conform to the same standards provided for the central display described above.

 Parents who find a particular activity "objectionable on religious grounds" may ask that their child be excused and provided with an alternate activity. Administrative Procedure C-17, P 7. Since this case is concerned with public displays in the classroom and in central areas of the school, where a student's right to be "excused" is simply not meaningful, we will proceed on the assumption that few if any students would request such an excuse. If the schools' policy with respect to the calendars and the central display are unconstitutional, this infirmity could not be cured by offering students the impractical, and possibly traumatic, alternative of absenting themselves from school activities.

 The Cherry Hill School Board's previous administrative policy ("APS-3") dealing with seasonal observances was enacted on November 19, 1970, and it did not delineate any specific criteria for acceptable displays and activities, and left the matter largely to the discretion of the school's principal. Def.'s Ex. A. APS-3 remained in existence until December, 1992. In October, 1993, the Cherry Hill school board adopted and enacted in its final form the policy at issue in this litigation. POLICY JO and APC-17.

 In December, 1991, school officials removed a Nativity display from the bulletin board at the Stockton Street Elementary School. Community response to this action was intense, and the Cherry Hill School Board soon formed a Seasonal Observance Committee comprised of school administrators and teachers to study the issue and solicit input from the public. Cost's Dep. T 39, 15-21. The policies attacked in this law suit are an outgrowth of the work of that committee.

 Plaintiffs contend that no other local school district in New Jersey permits the display of religious symbols and has provided the court with several policies of area school boards supporting their claims. Pl.'s Ex. CC. While we doubt that the practices of other public schools have much relevance to the constitutionality of Cherry Hill's practices, *fn9" we note that the school board has submitted rebuttal evidence that other local school districts have policies which expressly permit the posting of religious symbols. Cost's Aff. in Opp. to Pl.s' Motion for Summ. Judgment, Ex. A.

 III. STANDING AND RIPENESS

 Before reaching the merits of this litigation, we must first decide whether the matter is justiciable. Defendants have challenged the standing of certain plaintiffs to be litigants to this suit and have questioned the ripeness of their constitutional claims. Defendant relies heavily on Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) for the proposition that a potential psychological injury or a generalized disagreement with the government's conduct is not enough to confer standing. In that case, the plaintiffs were denied standing to challenge the transfer of property by the United States Department of Health Education and Welfare to a religious school. The Court found the purported injury to be insufficient to confer standing because the "plaintiffs failed to identify any personal injury suffered by them as a consequence of the alleged constitutional error . . ." Id. at 485 (emphasis in the original).

 Valley Forge cited the fact pattern in Abington School District v. Schempp, 374 U.S. 203, 224 n.9, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963). See Valley Forge, 454 U.S. at 486 n. 22. Schempp involved a school district which began each day with a bible reading. Plaintiffs, whose children attended the defendant's school and objected to the reading, were held to have standing to challenge the practice.

 In this case Cherry Hill has already begun implementing Policy JO and religious symbols appear on the calendars for November and December. The plaintiffs here are alleging very much the same interests as the plaintiffs in Schempp. Indeed, it is hard to imagine anyone with more interest than the parents of school children in the constitutionality of activities in the schools which their children attend.

 Fred Clever also has standing as a resident, property owner, and taxpayer of Cherry Hill township to challenge the disbursement of public funds purportedly made in violation of the Establishment Clause. Gilfillan v. City of Philadelphia, 637 F.2d 924, 927 n.1 (3d Cir. 1980), cert. denied, 451 U.S. 987, 68 L. Ed. 2d 845, 101 S. Ct. 2322 (1981) (citing Flast v. Cohen, 392 U.S. 83, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968)).

 Defendants' second theory of non-justiciability is that the plaintiffs' claims are not ripe for adjudication. Federal jurisdiction is presumed lacking unless "the complainant clearly . . . allege[s] facts demonstrating that he is the proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers." Presbytery of New Jersey v. Florio, 830 F. Supp. 241, 247 (D.N.J. 1993) (quoting Renne v. Geary, 501 U.S. 312, 115 L. Ed. 2d 288, 111 S. Ct. 2331, 2336 (1991).

 The ripeness doctrine seeks to prevent the courts "from entangling themselves in abstract disagreements." Id. (quoting Abbott Laboratories v Gardner, 387 U.S. 136, 148, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). To discern whether a particular matter is ripe, courts "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories, 387 U.S. at 149.

 As noted above, the school policy concerning the use of religious symbols on school calendars has already been implemented. There is evidence in the record which indicates that religious symbols will be a part of the imminent holiday display, even though we do not yet know the content of the various displays which will appear in each school in the district. Moreover, since plaintiffs argue that Policy JO is "facially" unconstitutional, the undisputed actions taken by Cherry Hill to implement the policy make it ripe for adjudication on the merits.

 IV. STANDARD FOR SUMMARY JUDGMENT

 The standard for granting a motion for summary judgment under Fed. R. Civ. P. Rule 56 is demanding and stringent. Wilson v. Sullivan, 709 F. Supp. 1351 (D.N.J. 1989). Under Fed. R. Civ. P. Rule 56(c), "summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 At the summary judgment stage, it is not the role of the judge to weigh the evidence or to evaluate its credibility, but to determine "whether there is a genuine issue for trial." 830 F. Supp. at 249. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party such that a reasonable jury could return a verdict for that party. Id.

 The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Finally, summary judgment should be granted unless a dispute over a material fact is genuine, which the Court has defined as such that "a reasonable jury could return a verdict for the nonmoving party." Id.

 A careful review of the record does not reveal any disputes as to material facts which would make it improper for this court to rule on the cross motions for summary judgment.

 V. ESTABLISHMENT CLAUSE

 Although the Supreme Court has been called upon many times to interpret the scope and breadth of the Establishment Clause, it is somewhat surprising that it has never directly addressed the use of religious symbols in connection with a school's Christmas celebrations. The constitutional propriety of religious displays on government property, such as a Nativity scene, have reached the highest court in two fractured and contentious decisions which leave district court judges, if not local school board officials, in a Serbonian Bog. *fn10" Compare Lynch v. Donnelly, 465 U.S. 668, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1983) (holding that display of creche is not an Establishment Clause violation.) with County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989) (declaring that display of creche is an Establishment Clause violation.).

 The Supreme Court has articulated a three-part test which must be applied to determine whether a particular action violates the Establishment Clause: "first, the [policy] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the [policy] must not foster an excessive entanglement with religion." Lemon v. Kurtzman, 403 U.S. 602, 612-13, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971). If the practice violates any one of the three tests, it must be struck down as violative of the First Amendment. Stone v. Graham, 449 U.S. 39, 40-41, 66 L. Ed. 2d 199, 101 S. Ct. 192 (1980).

 (A) Children

 The Supreme Court has been

 
particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools . . . . Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the students and his or her family. Students are impressionable and their attendance is involuntary.

 Edwards v. Aguillard, 482 U.S. 578, 583-84, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987); See also Lee, 112 S. Ct. at 2658.

 (B) Context

 "Every government practice [is] judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion." Lynch v. Donnelly, 465 U.S. at 694 (O'Connor, J., concurring) (emphasis in the original). The context in which a symbol appears is critical because it may determine what viewers fairly understand to be the purpose of the display, and may negate any message of endorsement that the religious symbol might otherwise evoke. County of Allegheny, 109 S. Ct. at 3086.

 (C) Permanence

 A school's permanent display of religious symbols is constitutionally suspect. The "pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature . . . and no legislative recitation of a supposed secular purpose can blind us to that fact." Stone, 449 U.S. at 41. See also Washegesic v. Bloomingdale Public Schools, 813 F. Supp. 559 (W.D. Mich. 1993) (holding unconstitutional portrait of Jesus Christ outside of principal's office); Joki v. Board of Educ. of the Schuylerville Central School Dist., 745 F. Supp. 823 (N.D.N.Y. 1990) (finding violative of First Amendment crucifixion mural outside of high school auditorium).

 (D) Passive v. Active

 Prayers, bible readings, or moments of silence which are mandated or directed by public school officials are constitutionally suspect. As held by the majority in Lee, prayer is an "overt religious exercise" in which students can not be forced to participate. 112 S. Ct. at 2656. The less coercive effect of symbols when compared to compulsory participation in a religious exercise has been recognized by the Supreme Court: "forbidding the use of . . . one passive symbol--the creche--at the very time people are taking note of the season with Christmas hymns and carols in public schools . . . would be a stilted overreaction . . . ." Lynch, 465 U.S. at 686.

 (E) Religious/Secular Holidays

 The Supreme Court has recognized that religious holidays may evolve and acquire significant secular meaning. Lynch 465 U.S. at 675-76 (detailing history of religious holidays which government may permissibly recognize). As noted in County of Allegheny, just as some Americans celebrate Christmas without regard to its religious significance, some nonreligious American Jews celebrate Chanukah as an expression of ethnic ...


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