religious symbol might infer governmental endorsement of religion must be more rigorous than that used to validate the public display of a creche in Lynch. Cherry Hill has met that burden. The limitation of symbols to a small box in a calendar, the accompanying explanatory material and the limitations imposed on the use of a crucifix or a three-dimensional Nativity scene are examples of the sensitivity shown by the school board in emphasizing the secular and educational context of their displays.
We are aware that Policy JO leaves a great deal of latitude in its implementation, particularly with respect to as yet unknown central displays for the impending holiday season. One could, in theory, envision a display which, in context, could be perceived as impermissibly endorsing religion. However, there is nothing facially in Policy JO which would negate a genuine secular intent. "Sufficient unto the day is the evil thereof."
(B) Primary effect
The second prong of the Lemon test requires us to discern whether the "primary effect [is] one that neither advances nor inhibits religion." 403 U.S. at 612. A religious display's constitutionality depends on whether a reasonable observer, considering the context in which it is presented, would likely perceive it as a governmental imprimatur to religion. County of Allegheny, 109 S. Ct. at 3102-03.
Given the emphasis Policy JO places on religious diversity, there is simply no basis for concluding that it endorses any particular religion. Nor can it be said to favor religion over non-religion. The language of the policy completely disclaims any such intent: "Schools may teach about but not promote religion." To the extent the record reflects the actual implementation of that policy, the calendars for November and December, which celebrate a wide variety of religious and secular holidays, confirm that its intent is being fairly implemented.
It often appears that litigation attacking the public use of religious symbols is motivated by feelings of discomfort or hostility experienced by one who is exposed to the symbol but does not share the particular faith which the symbol represents. To these feelings may be added the sense of exclusion sometimes felt by a non-Christian looking at a symbol which represents the religion of a great majority of Americans. One of the obvious purposes of Policy JO is to eradicate those feelings of hostility and discomfort and to allow students to share the knowledge of other religious heritages without feeling threatened by them.
It might be also note that a particular religious display is not rendered unconstitutional because it offends the sensibilities of some viewers. As Justice Kennedy noted in Lee, it would be difficult for any student attending classes or assemblies, or completing assignments, not to have been exposed "to ideas they find distasteful or immoral or absurd or all of these" or to "ideas deemed offensive and irreligious, . . ." Id.; see also Florey, 619 F.2d at 1317 ("It would be literally impossible to develop a public school curriculum that did not in some way affect the religious or nonreligious sensibilities of some of the students or parents.") The "fundamental dynamic of the Constitution" does not rest on the varying sensibilities of students to the school's educational program. Lee, 112 S. Ct. at 2657.
Cases dealing with Lemon's second prong generally focus on governmental conduct which is alleged to promote or foster religion. However, this prong also forbids governmental conduct whose primary effect is to inhibit religion. 403 U.S. at 612. Under normal circumstances the absence of religious displays is neutral and without First Amendment significance. However, in the context of the Christmas-Chanukah holidays, this absence might be less than neutral.
As our nation becomes overwhelmed with the tangible evidences of the year-end holiday spirit, the studied absence or even limitation of consistent celebrations within the school might well be interpreted by a student as governmental hostility to the celebrating religions. The fine points of Establishment Clause jurisprudence may be lost on a young student who sees Christmas and Chanukah everywhere but in her school. Cf. Lee v. Weisman, 112 S. Ct. at 2661 ("A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution."); Lamb's Chapel, 113 S. Ct. at 2147 (holding that refusal to rent school property to religious organization to exhibit film not "viewpoint neutral.").
(C) Excessive entanglement.
The third and final element of the Lemon test demands that government policy not "foster an excessive . . . entanglement with religion." 403 U.S. at 613. If the state must engage in continuing administrative supervision of religious activity, church and state are excessively intertwined. Brandon v. Board of Ed. of Guilderland Central School, 635 F.2d 971, 979 (2d Cir. 1980). This analysis is particularly relevant when the state is involved in administering grants to parochial schools. Aguilar v. Felton, 473 U.S. 402, 413, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985); Florey, 619 F.2d at 1318.
Plaintiffs rely on an unreported Washington state court opinion which held that a school's pervasive monitoring of a religious symbol policy that permitted individual teachers to construct classroom displays with sectarian objects created excessive entanglement with religion. Mainger v. Mukilteo School District, No. 85-2-04671-2 at 7 (Super. Ct. Wash., Nov. 7, 1986). Pl.'s Brief, Ex. A.
As did Florey, we explicitly reject the "entanglement" challenge based on a school district's efforts to insure compliance with the Establishment Clause in the operation of its schools. This is "[the] type of decision inherent in every curriculum choice and would be faced by school administrators . . . even if the rules did not exist." 619 F.2d at 1318. Given the uncertain state of Supreme Court guidance in this area, plaintiffs' argument might leave school administrators no choice but "to exclude religion from every aspect" of school life. Lee, 112 S. Ct. at 2661. There is no Supreme Court precedent which suggests this result.
Political divisiveness evoked by Policy JO is also raised by the plaintiffs as a basis for striking down the policy. Lemon, 403 U.S. at 622 (finding that aid to parochial schools would provoke political battles between those for and against such aid). Even if we were to assume that political divisiveness existed over the adoption of Policy JO, that alone would not be dispositive of the entanglement test. Lynch v. Donnelly, 465 U.S. at 684 (1983). Indeed, the Lynch court stated that if the facts at issue did not "involve a direct subsidy to religious schools or colleges . . . no inquiry into political divisiveness is [warranted]." Id.17
Because Policy JO facially, and to the extent implemented, has a genuine secular purpose, does not impermissibly promote religion and does not unduly entangle the government in state-church relationships, there is no First Amendment violation. There being no viable federal claims, the court declines to exercise supplemental jurisdiction over plaintiffs' state law claims. United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). The court will enter an order granting defendant's cross-motion for summary judgment and denying the plaintiffs' motion.
Dated: December 2, 1993
JOSEPH E. IRENAS
BOARD OF EDUCATION
Cherry Hill, New Jersey
Category J: Students
Policy JO: THE USE OF CULTURAL, ETHNIC, OR RELIGIOUS THEMES IN OUR EDUCATIONAL PROGRAM
We believe that it is our responsibility as educators to foster mutual understanding and respect for the rights of all individuals regarding their beliefs, values, and customs. In pursuing this goal the Board recognizes that we have a diverse community with a variety of cultural, ethnic, and religious backgrounds and we are cognizant of the special significance of seasonal observances and religious holidays.
The Board also recognizes that a genuine and broad secular program of education is furthered by advancement of students' knowledge about our society's cultural, ethnic and religious diversity. Inclusion of this area of knowledge helps to achieve our district's educational goals.
Through our instructional programs, we shall seek to broaden our students' understanding of, and respect for, the many beliefs and customs stemming from our diverse multicultural community's religious, racial, ethnic and cultural heritage. While one cannot study the richness of civilization without studying about religion, it is essential that those studies be conducted with sensitivity to the many religious beliefs existing within our student population; they must also remain consistent with 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 the public schools. Schools may teach about but not promote religion. The inclusion of religious themes in the study of the arts, literature, and history shall be only as extensive as necessary for a balanced, and comprehensive study of these areas.
The district supports the inclusion of cultural, ethnic and religious literature, music, drama and the arts in the curriculum and in school activities, so long as such inclusion reinforces our secular educational goal of providing a valuable learning experience. A wide variety of activities shall be included throughout the year.
Staff members are responsible for creating the school atmosphere and for demonstrating interest, sensitivity and support, so that students may see that different customs and beliefs are wonderful and essential elements of a pluralistic society.
Second Reading October 18, 1993
CHERRY HILL PUBLIC SCHOOLS
The Use of Cultural, Ethnic, or Religious Themes In our Educational Program
The guidelines below shall be followed in implementing formal curriculum and in providing information on holidays which have cultural, ethnic or religious significance. The primary purpose of all material used to provide such information on holidays shall be to promote the educational goal of advancing student knowledge.
1. Sensitivity to the diverse cultural backgrounds represented in our society should be an important guideline in selecting instructional materials and resources and in presenting the instructional program.
2. An instructional unit including religious or cultural themes and/or material need not necessarily be confined to any specific holiday season, but may be presented at such time during the school year that is appropriate to the curriculum. Reading lists, resource materials and inservice training shall be provided to staff members, in order to effectively implement the educational goals of Policy JO - The Use of Cultural, Ethnic, or Religious Themes In our Educational Program.
While assignments directing students to express their personal beliefs about their cultural, ethnic or religious backgrounds are not appropriate, individual student responses which may reflect such backgrounds and beliefs shall be accommodated and not result in embarrassment.
3. Within the classroom, displays of religious symbols are permissible provided such symbols are part of the planned program of instruction and comply with the three criteria below.
a. are displayed as an educational example of the holiday's cultural, ethnic, and/or religious significance
b. are pictorial in nature or are created by students,