Clever v. Cherry Hill Township Board of Education (1993)

[Clever v. Cherry Hill Township Board of Education, 838 F.Supp. 929 (D. N.J. 1993). United States District Court, District of New Jersey upholds constitutionality of holiday recognition in public school where school calendar acknowledges both secular and religious holidays, including non-Christian holidays, on the basis of diversity and tolerance. "We find that the use of religious symbols in a manner consistent with the expressed intent and direction of Policy JO has a genuine and demonstrable secular purpose." Id. at 939. (Appendices and some notes are omitted.)]

838 F.Supp. 929 (D. N.J. 1993)

United States District Court,

D. New Jersey.

CLEVER V. CHERRY HILL TOWNSHIP BOARD OF EDUCATION

Civ. No. 93-1012(JEI).

Dec. 2, 1993.

[* * * * *]

OPINION

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 Hill 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. [sections] 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. [sections] 1331 and 1343. Plaintiffs also assert state law causes of action under Article I, [paragraph] 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. [section] 1367(a). (1)

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. [***] 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." (3)

What plaintiffs do challenge are (i) calendars which are to be maintained in each classroom and in one central location, Administrative Procedure C-17, [paragraph] 4, and (ii) a display dealing with "cultural, ethnic, and religious customs and traditions of others during the appropriate season." Administrative Procedure C-17, [paragraph] 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. (4)

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 (5) 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, [paragraph] 4. (6) 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. (7)

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. (8)

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, [paragraph] 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, [paragraph] 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, (9) 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, 102 S.Ct. 752, 70 L.Ed.2d 700 (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, 102 S.Ct. at 765 (emphasis in the original).

Valley Forge cited the fact pattern in Abington School District v. Schempp, 374 U.S. 208, 224 n. 9, 83 S.Ct. 1560, 1572 n. 9, 10 L.Ed.2d 844 (1963). See Valley Forge, 454 U.S. at 486 n. 22, 102 S.Ct. at 766. 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, 101 S.Ct. 2322, 68 L.Ed.2d 845 (1981) (citing Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (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, ____, 111 S.Ct. 2331, 2336, 115 L.Ed.2d 288 (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, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (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, 87 S.Ct. at 1515.

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, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). 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." Id. at 248, 106 S.Ct. at 2510. 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 governmental 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. (10) Compare Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (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: "[f]irst, 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, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (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, 101 S.Ct. 192, 193, 66 L.Ed.2d 199 (1980).

Although the Lemon test has been subjected to extensive criticism, (11) it still remains the dispositive analytical framework for deciding Establishment Clause cases. Lamb's Chapel v. Center Moriches School Dist., ____ U.S. ____, ____, 113 S.Ct. 2141, 2148, 124 L.Ed.2d 352 (1993); Lee v. Weisman, ____ U.S. ____, ____, 112 S.Ct. 2649, 2655, 120 L.Ed.2d 467 (1992) (declining invitation to reconsider Lemon). However, before applying Lemon to the facts of this case, we must consider several other threads of Establishment Clause jurisprudence.

(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, 107 S.Ct. 2573, 2577, 96 L.Ed.2d 510 (1987); See also Lee, ____ U.S. at ____, 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, 104 S.Ct. at 1370 (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, 492 U.S. at 573, 109 S.Ct. at 3086.

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, 101 S.Ct. at 194. 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 cannot be forced to participate. ____ U.S. at ____, 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: "forbid[ding] 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, 104 S.Ct. at 1365.

(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, 104 S.Ct. at 1360 (detailing history of religious holidays which government may permissibly recognize). As noted in County of Allegheny, "[j]ust as some Americans celebrate Christmas without regard to its religious significance, some nonreligious American Jews celebrate Chanukah as an expression of ethnic identity and as a cultural or national event, rather than as a specifically religious event." 492 U.S. at 585, 109 S.Ct. at 3096.

(F) Denominational Preference

Although the Establishment Clause has long been interpreted to prohibit government from promoting religion generally, see, e.g., Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 210-11, 68 S.Ct. 461, 464-65, 92 L.Ed. 649 (1948); Abington School District, 374 U.S. at 217, 83 S.Ct. at 1568, the Court has "expressly required 'strict scrutiny' of practices suggesting a 'denominational preference.'" County of Allegheny, 492 U.S. at 608-09, 109 S.Ct. at 3109. However, in the absence of demonstrating governmental endorsement of a particular set of religious beliefs, the display of religious symbols on government property in connection with a legitimate secular purpose, i.e., the celebration of Christmas, does not compel the conclusion that religion, generally, is being favored over non-religion. "Rather, it simply permits the government to acknowledge the holiday without expressing an allegiance to [religious] beliefs, an allegiance that would truly favor [religion] over non-[religion]." Id. at 611-612, 109 S.Ct. at 3111.

(G) No Hostility

Establishment Clause jurisprudence expressly forbids hostility towards religion. Lynch, 465 U.S. at 673, 104 S.Ct. at 1359 (citing Zorach v. Clauson 343 U.S. 306, 314-15, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952)); McCollum, 333 U.S. at 211, 68 S.Ct. at 465. "A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution." Lee, ____ U.S. at _____, 112 S.Ct. at 2661.

VI. APPLYING LEMON

With these fundamental principles of Establishment Clause jurisprudence as our guide, we now turn to applying the tripartite test of Lemon v. Kurtzman to Policy JO as adopted and, to the extent known, implemented by the Cherry Hill School Board.

(A) Secular purpose

To determine whether a policy or practice violates the Establishment Clause, we must carefully examine the history and content of the challenged policy to discern if its design is to "endorse or disapprove of religion." Edwards, 482 U.S. at 585, 107 S.Ct. at 2578. If the practice or policy does not have genuine and demonstrable secular purposes, it must be struck down. Lemon, 403 U.S. at 612, 91 S.Ct. at 2111.

Plaintiffs' brief cites cases in which courts have struck down displays of religious symbols or compulsory religious observances in public schools. Lee, ____ U.S. at _____, 112 S.Ct. 2649 (holding unconstitutional school prayer at high school graduation); Stone, 449 U.S. 39, 101 S.Ct. 192 (1980) (declaring unconstitutional display of Ten Commandments); Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (striking down as violative of First Amendment daily moment of silence for prayer in classrooms); Lubbock Civil Liberties Union v. Lubbock Independent School Dist., 669 F.2d 1038 (5th Cir. 1982) (setting aside as unconstitutional morning bible readings over school's public address system); Washegesic v. Bloomingdale Public Schools, 813 F.Supp. 559 (W.D. Mich. 1993) (finding display of Jesus Christ's portrait violative of Establishment Clause); and Joki, 745 F.Supp. 823 (N.D. N.Y. 1990) (holding unconstitutional crucifixion scene mural outside of high school auditorium).

All of these cases deal either with (i) government mandated or coerced participation in religious exercises or (ii) conduct, with no secular purpose, perceived as endorsing a particular religion or religion generally. These cases are generally discussed supra, in parts V.(C), (D) and (F).

Defendants principally rely on Florey v. Sioux Falls School Dist., 619 F.2d 1311 (8th Cir.), cert. denied, 449 U.S. 987, 101 S.Ct. 409, 66 L.Ed.2d 251 (1980), which rebuffed a facial attack on a policy not dissimilar to Policy JO. (12) Although the Sioux Falls policy purported to cover all holidays, as in Cherry Hill, there was little doubt that activities surrounding the Christmas holidays motivated the adoption of the policy. While it is a bit difficult to get the exact flavor of what went on in each Sioux Falls classroom, it is absolutely clear that students were exposed to religious symbols both visually and aurally, by the singing of Christmas carols.

In upholding the Sioux Falls policy, the Florey majority held:

Only holidays with both religious and secular bases may be observed; music, art, literature and drama may be included in the curriculum only if presented in a prudent and objective manner and only as a part of the cultural and religious heritage of the holiday; and religious symbols may be used only as a teaching aid or resource and only if they are displayed as a part of the cultural and religious heritage of the holiday and are temporary in nature. Since ... the materials must be presented in a prudent and objective manner and symbols used as a teaching aid, the advancement of a 'secular program of education,' and not of religion, is the primary effect of the rules.

Id. at 1317.

We find that the use of religious symbols in a manner consistent with the expressed intent and direction of Policy JO has a genuine and demonstrable secular purpose.

As noted in V.(E), supra, Christmas and Chanukah are celebrated as cultural and national holidays as well as religious ones, and there is simply no constitutional doctrine which would forbid school children from sharing in that celebration, provided that these celebrations do not constitute an unconstitutional endorsement of religion and are consistent with a school's secular educational mission. Indeed, the Supreme Court in Lynch referred to "the very time people are taking note of the season with Christmas hymns and carols in public schools ...." 465 U.S. at 686, 104 S.Ct. at 1365.

Religion is a pervasive and enduring human phenomenon which is an appropriate, if not desirable, subject of secular study. It is hard to imagine how such study can be undertaken without exposing students to the religious doctrines and symbols of others. Plaintiffs protest that the calendars and central displays are not part of "a planned program of instruction," but the use of appropriate classroom and central displays is clearly a recognized and legitimate educational technique. If displays are perceived by plaintiffs as capable of conveying unwanted religious messages to the student viewers, surely such displays are capable of having secular educational impact.

Policy JO starts by observing that it is the responsibility of educators to "foster mutual understanding and respect for the rights of all individuals regarding their beliefs, values, and customs." In a nation as diverse as America, it is impossible to overestimate the secular importance of teaching this lesson. We learn this lesson not by being offended or threatened by the religious symbols of others, but by understanding the meaning of those symbols and why they have the capacity to inspire intense emotions. If our public schools cannot teach this mutual understanding and respect, it is hard to envision another societal institution that could do the job effectively. In a palpable and real way, the calendars and related materials prepared in Cherry Hill to carry out Policy JO clearly emphasize both tolerance and diversity.

The implementation of Policy JO involves no permanent displays of religious symbols (13) and involves no forced participation in a rite or exercise which can be deemed primarily religious. Cases like Stone, Lee, Washegesic and Joki discussed in V.(C) and (D) supra, are clearly distinguishable.

County of Allegheny and Lynch clearly indicate that whether the use of religious symbols can be deemed secular depends on the context in which they are used. Lee and Edwards effectively mandate that, when school children are involved, the standard used to evaluate the risk that viewers of a 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." (14)

(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, 91 S.Ct. at 2111. 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, 492 U.S. at 595-96, 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[d] 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, ____ U.S. at _____, 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, 91 S.Ct. at 2111. 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, ____ U.S. at _____, 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, ____ U.S. at ____, 113 S.Ct. at 2147 (holding that refusal to rent school property to religious organization to exhibit film not "viewpoint neutral."). (15)

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, 91 S.Ct. at 2111. 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, 105 S.Ct. 3232, 3238, 87 L.Ed.2d 290 (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. (16)

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 inhere[nt] 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, _____ U.S. at _____, 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, 91 S.Ct. at 2115 (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, 104 S.Ct. at 1365 (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)

VII. CONCLUSION

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, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The court will enter an order granting defendant's cross-motion for summary judgment and denying the plaintiffs' motion.

1. The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ..." U.S. Const. amend. I.

The New Jersey Constitution of 1947 states in Art. I, [paragraph] 4: "There shall be no establishment of one religious sect in preference to another; no religious or racial test shall be required as a qualification for any office or public trust."

N.J.S.A. 18A:36-20 provides that:

No pupil in a public school in this State shall be discriminated against in admission to, or in obtaining any advantages, privileges or courses of study of the school by reason of race, color, creed, sex or national origin.

[* * * * *]

3. Paragraph 3 of Administrative Procedure C-17 provides that such displays must demonstrate the holiday's cultural, ethnic, or religious significance, must be pictorial in nature or created by the students, and must remain on display only during the timeframe that corresponds to the unit being taught.

4. An earlier version of the Board's holiday policy provided:

[I]t shall be permissible to decorate one central school location with a Christmas tree, a Chanukah menorah, and a Kwanzaa candelabra for the last ten school days before the Winter Recess .....

.....

During the month of December, this bulletin board shall be divided into three equal segments, representing Christmas, Chanukah and Kwanzaa respectively. Symbols acceptable for each segment include the Chanukah menorah, dreidl, Nativity scene, Christmas tree, Kwanzaa candelabra and African-American art. All Symbols on this bulletin board shall be pictorial and shall be accompanied by the written explanation of their significance.

Pl.'s Ex. N at 3, [paragraphs] 1, 3.

5. We use the word "holiday" loosely to include days or weeks which are given special recognition, such as December 15, which is "Bill of Rights Day."

6. The list of holidays or other special dates or events given special mention in the calendars is collected from a wide variety of resource materials which are listed in Plaintiffs' Exhibit Y.

7. In response to an inquiry from the attorney for plaintiffs Cherry Hill elaborated on the use of symbols:

A pictorial representation of a nativity, the Ten Commandments, a cross, a Star of David, a crescent, the Hindu OM symbol, Buddha, Confucius, and Jesus Christ would be acceptable illustrations for both the centrally located and the classroom calendars. These symbols meet our secular educational goal of advancing student knowledge about our cultural, ethnic, and religious diversity while utilizing religious symbolism that is only as extensive as necessary. This effort is further supported by brief descriptions of each holiday which will be posted next to the calendars. While a crucifix could be used in curricular instruction, we do not intend to use a crucifix as an illustration on the calendars. Our secular educational goal can be met through the use of other Christian symbols. Please be reminded that all illustrations must be small enough to fit within the square of the individual date on the calendar.

An overriding consideration is our desire to advance our secular educational goals while utilizing religious symbolism that is only as extensive as necessary. Accordingly, to use one example, a small picture of a nativity scene could be used on the calendar; a three dimensional nativity scene would not be approved for a school's central display.

Pl.'s Ex. V.

8. The originals of the calendars attached to this opinion are 16 1/2" by 11" in size with each date being enclosed in a rectangle 1 1/2" by 2 1/2". Identical calendars are used in all Cherry Hill classrooms. Individual schools are given discretion as to which if any of the symbols will be used in the larger calendar maintained at a central location in the school. Pl.'s Ex. U.

9. It is predictable that Establishment Clause litigation will be fought out in the gray area between the acceptable and the impermissible. One of the risks a plaintiff takes in choosing to do battle in this constitutional fog is to create judicial sanction for a hitherto suspect activity and thus abet the spread of the very practice sought to be enjoined.

10. John Milton, Paradise Lost, Bk. II, lines 591-94; [***]

11. See, e.g., Lamb's Chapel v. Center Moriches School Dist., ____ U.S. ____, _____ __ _____, 113 S.Ct. 2141, 2149-50, 124 L.Ed.2d 352 (1993) (Scalia, J., concurring) ("Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District."); Lee v. Weisman, ____ U.S. _____, _____, 112 S.Ct. 2649, 2685 (Scalia, J., dissenting).

12. The policy under attack in the Florey decision stated in relevant part, the following:

4. The use of religious symbols such as a cross, menorah, crescent, Star of David, creche, symbols of Native American religions or other symbols that are part of a religious holiday is permitted as a teaching aid or resource provided such symbols are displayed as an example of the cultural and religious heritage of the holiday and are temporary in nature. Among these holidays are included Christmas, Easter, Passover, Hanukkah, St. Valentine's Day, St. Patrick's Day, Thanksgiving Day and Halloween.

Florey, 619 F.2d at 1320.

13. The calendars, of course, change monthly, and [paragraph] 5 of Administrative Procedure C-17 limits the duration of any central display using religious symbols to ten days and permits their use only during an appropriate season.

14. Matthew 6:34 (King James version).

15. Plaintiffs correctly point out that [paragraph] 7 of Administrative Procedure C-17 which purports to permit students to "be excused from any activity the parents deem objectionable on religious grounds" will not salvage an otherwise unconstitutional practice. Abington, 374 U.S. at 224-25, 83 S.Ct. at 1572-73.

16. The policy at issue in Mainger was similar to Policy JO in that it permitted:

Displays of religious objects or symbols, if used, shall be displayed in conjunction with a variety of secular holiday symbols, so that the total presentation emphasizes the cultural and secular rather than the religious or sectarian significance of the holiday.

Mainger, at 7.

17. Defendant argues that deciding in plaintiffs' favor would necessarily abridge the Free Speech rights of the students and staff in the school district. Peculiarly, defendant relies on equal access jurisprudence. E.g., Lamb's Chapel v. Center Moriches School District, ____ U.S. _____, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). Defendant contends that limiting religious displays in the manner suggested by plaintiffs would result in a content-based restriction on speech allowed within the schools. First Amendment jurisprudence is densely populated with cases that subordinate free speech rights to Establishment Clause concerns. See, e.g., Berger v. Rensselaer Central School Corp., 982 F.2d 1160, 1168 (7th Cir. 1993) (holding prohibition against distributing bibles in public schools does not violate school staff and students' Free Speech rights). This contention is meritless and requires no further discussion.

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