The opinion of the court was delivered by: Walls, Senior District Judge
Pursuant to Fed. R. Civ. P. 56, Plaintiff Michael Stratechuk moves for summary judgment on his first claim, alleging that "Defendants have conveyed the impermissible, government-sponsored message of disapproval of and hostility toward religion, including Christianity, in violation of the Establishment Clause." Defendants Board of Education, South Orange Maplewood School District (the "School Board"), Brian F. O'Leary, and Peter P. Horoschak ("Superintendent Horoschak") also move for summary judgment pursuant to Fed. R. Civ. P. 56, to dismiss Plaintiff's Amended Complaint in its entirety. The Court held oral argument on the motions for summary judgment on July 31, 2008. Defendants' motion for summary judgment is granted; Plaintiff's motion for summary judgment is denied.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff Michael Stratechuk is the father and legal guardian of two minor children who live in the School District of South Orange and Maplewood, New Jersey (the "School District"). (Pl.'s Statement of Material Facts (No. 36-2) ("Pl.'s S.F.") ¶ 1.) During the 2004-2005 school year -- the relevant time period -- one of Plaintiff's children attended Columbia High School and the other attended Maplewood Middle School. (Id. ¶ 2.)
On April 2, 2001, the School Board adopted Policy 2270, Religion in the Schools. According to Policy 2270:
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 orientation.
We 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.
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.
(Cert. of Michael F. O'Neill ("O'Neill Cert."), Ex. A (No. 37-4) at SO0140.) Given this goal the School Board adopted the following practices regarding the "Treatment of Religion in the Curriculum:"
1. Permit 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.
2. Accommodate student-initiated expression in response to questions or assignments which reflect their beliefs or non-beliefs about religious themes.
a. Students are free to express religious belief or non-belief in compositions, works of art, music, speech and debate. Provisions should be made so that such expression is neither encouraged nor discouraged, but is handled in a courteous and respectful manner.
3. Only permit religious symbols to teach about historical or cultural context, not to promote or celebrate religious concepts, events or holidays.
a. Classroom use and/or display of religious symbols is permitted on a temporary basis as a teaching resource or aide only within the framework of the curriculum. The 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.
(Id., Ex. A at SO0140-41.) Moreover, the School Board adopted the following practices regarding the "Treatment of Religious Holidays in Classrooms, School Buildings, Programs or Concerts:"
1. Religious 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 histories 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.
3. Decorations with religious significance are not permitted.
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 religious orientation or focus on religious holidays.
Before the 2004-2005 school year, holiday music, including traditional Christmas carols and Hanukkah songs, was performed at the School District's December concerts. (Pl.'s S.F. ¶¶ 3-4; Defs.' Br. in Support of Summ. J. (No. 37-2) ("Defs.' Supporting Br.") at 5.) In the Fall of 2003, music teacher William Cook contacted Sharon Cohen, a parent of one of his 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." (Pl.'s Mot. for Summ. J., Ex. C (No. 36-6) 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 Fine Arts Santoro"), of his conversation with Ms. Cohen, and Director of Fine Arts Santoro recounted the situation to Assistant Superintendent James Memoli ("Assistant Superintendent Memoli"). (Id.)
On January 21, 2004, Ms. Cohen sent Superintendent Horoschak a letter, complaining that "the selection of music [at the South Orange Middle School 2003 December concert], both instrumental and vocal, had a clear religious orientation and focused on religious holidays. . . . in direct violation of the Board policy # 2270 4 (a)."*fn1 (Decl. of Attorney Robert J. Muise (No. 38), Ex. P-5 at SO0212-13.) 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' (i.e., Hanukkah and Christmas) selections . . . there was not one particular focus on a particular religion or religious group, and, as such, there was no attempt to advance any religious point of view." (Pl.'s Mot. for Summ. J., Ex. F (No. 36-10), Ex. P-6 at SO0375.) Superintendent Horoschak continued, however, that although "[w]e are cognizant of the policy, and are careful to follow it. . . . concerns raised by parents regarding the holiday concert at South Orange Middle School suggest that the policy needs further clarification." (Id.) Further, he stated that "Assistant Superintendent Jim Memoli and Director of Fine Arts Nicholas Santoro are engaged in on-going discussions about such musical 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." (Id.)
On or about March 24, 2004, Superintendent Horoschak had his annual performance review with the School Board.*fn2 (Defs.' Supporting Br. at 5.) At this review, the issue of the implementation of Policy 2270 with respect to the December concerts was raised. (O'Neill Cert., Ex. B (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 ha[d] been discussion about the fact that you really can't balance all religious groups in these representations in these types of performances." (Id., Ex. B at 113:2-11.) Ultimately, the School Board indicated that the outcome that it desired was "that [Policy 2270] would be consistently implemented, that it be supervised, that there wouldn't be so much discretion at every -- by every faculty member," (id., Ex. B at 114:2-10), and discussed with him drafting regulations regarding Policy 2270, (Defs.' Resp. to Pl.'s Statement of Material Facts (No. 43-2) ¶ 8; see Pl.'s S.F. ¶ 8.)
In September 2004, Director of Fine Arts Santoro held a department meeting, wherein he "discussed [with 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., Ex. H (No. 37-11) 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". (Id., Ex. H at 58:3-5.) On October 14, 2004, Superintendent Horoschak met with Director of Fine Arts Santoro, Assistant Superintendent Memoli, and the School District's attorney, Ellen 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." (Id., Ex. I (No. 37-12) at SO0142; see Pl.'s S.F. ¶¶ 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 we're treating everyone on an equal basis, what was educationally sound," (Defs.' Reply Br. in Support of Mot. for Summ. J. ("Defs.' Reply Br."), Ex. B (No. 45-4) at 53:5-15), and making sure that "no child feels uncomfortable in celebrating a holiday that wasn't 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] their ability to learn." (Id., Ex. B at 57:6-12.)
Director of Fine Arts Santoro drafted a memorandum to the School District music staff on October 29, 2004 (the "October 29, 2004 memorandum"), forwarding the decisions made at the October 14, 2004 meeting. (O'Neill Cert., Ex. I (No. 37-12) at SO0143; Pl.'s S.F. ¶ 19.) Director of Fine Arts Santoro wrote that "in my three-plus years in the district, I have been reviewing your programs to insure [sic] that we are in compliance with [Policy 2270],"*fn3 and that following the meeting, " I now have a clearer picture of the expectations of [Policy 2270]." (O'Neill Cert., Ex. I (No. 37-12) at SO0143; see Pl.'s S.F. ¶¶ 15-16.) Director of Fine Arts Santoro continued that "[i]n short, we will continue to use common sense when selecting music for the Holiday concerts," but also presented six specific bullet points:
* All programs will be reviewed and approved by me. To save time and effort, I will come to you to look at your repertoire. Please let me know when I can do this.
* 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.
* I would strongly suggest you gear towards the seasonal selections -- Winter Wonderland, Frosty The Snowman, etc. Music centered on Peace is also a nice touch.
* For the High School, the Brass Ensemble repertoire must also adhere to this policy, so the traditional carols must be eliminated from the repertoire.
* The MKL [sic] Gospel Choir cannot perform at the CHS Holiday Assembly for the student body.
* Your printed programs for any Holiday concert must avoid graphics which refer to the holidays, such as Christmas Trees and dreidels.
(O'Neill Cert., Ex. I (No. 37-12) at SO0143; Pl.'s S.F. ¶¶ 20-22, 24-25.)
Following the issuance of the October 29, 2004 memorandum, Director of Fine Arts Santoro explained its contents in greater detail "when responding to direct inquiries from the faculty." (Defs.' Supporting Br. at 7.) As example, in response to an e-mail from music teacher Barbara Eames, Director of Fine Arts Santoro clarified that "according to the policy, you can teach about the different holidays in your music classes" as "[c]lassroom work is not a 'program'" within the meaning of Policy 2270. (O'Neill Cert., Ex. J (No. 37-13).) In response to another e-mail from Ms. Eames, Director of Fine Arts Santoro indicated that Vivaldi Gloria (Cum Sancto Spiritu) could be performed under Policy 2270 because "[t]he program does not have a religious orientation and it does not refer to a holiday." (Id., Ex. K (No. 37-14).) Further, Director of Fine Arts Santoro noted that Ms. Eames "CAN teach about the holidays in class as it is presented in [Policy 2270]." (Id.)
In addition, Director of Fine Arts Santoro began to receive programs from the School District music staff in order to determine whether they were in accord with Policy 2270. As example, on November 16, 2004, Mr. Cook sent Director of Fine Arts Santoro a letter with the following message:
For the Holi...uh, Ram...uh, Hanuk...uh, Chri...uh, December concert the 7th & 8th grade Orchestras at SOMS and MMS ...