LAW 790 - Religion and the Constitution
Final Examination
Professor Harpaz
December 11, 2009
Question I
(Suggested time: 60 minutes) (1/3 of total exam points)
Last year the Springdale School District faced a
budgetary crisis as the result of declining real estate tax revenues
and a reduction in state funding. Among its cost-cutting efforts,
the District eliminated several programs. One program it
eliminated was its operation of an “alternative” high school for public
school students who have behavioral and/or emotional problems.
The 125 students who had previously attended the alternative school had
to be placed in other schools. Most of them were mainstreamed and
placed in other public schools operated by the School District.
However, 25 students, ranging in age from 14-17, with the most severe
behavioral and emotional problems had to be provided with services that
were unavailable at any of the District’s other public schools.
To provide an education for these students, the
District entered into a contract with the Briarcliff School (BS), a
private boarding school within the School District that has specialized
in the education of adolescents with behavioral and emotional problems
for over 60 years. According to its literature, BS “educates children
in a Christian environment of love and encouragement. A unique
feature of the Briarcliff program is the emphasis that it places upon
instilling in each child a personal faith in God, and the assurance of
the saving grace of Jesus Christ while remaining unaffiliated with any
specific denomination or Church.”
BS is the only private school located within the
District that provides an educational program that is suitable for the
25 students previously educated at the public alternative school.
Moreover, the school is certified by the state as qualified to provide
special education services, has an excellent reputation, and has won
awards for its educational program. For the 2009-10 academic
year, the District paid the Briarcliff School $10,000 in tuition for
each of the 25 students. In exchange for the $250,000 that the
District agreed to pay, BS agreed to create a day program for the 25
District students that would operate separately from its boarding
program and would not include Christian teachings.
Under the terms of the agreement entered into
between BS and the School District, the District students will only be
enrolled in secular subjects that satisfy the School District’s
required curriculum. To the extent possible, the District
students will not be enrolled in classes with the boarding students,
although the same teachers will teach both groups of students. In
addition, the students will be combined for eating lunch in the
cafeteria and for extracurricular and afterschool activities that are
not part of the required curriculum. The District students will
also receive behavioral and psychological therapy sessions from BS
personnel to help address their problems, but the therapy program will
not attempt to instill “in each child a personal faith in God.”
Instead, the therapy sessions for District students will include an
emphasis on personal responsibility and self esteem.
The day program that BS agreed to create for the 25
District students began its operation at the beginning of this academic
year. Most of the students and their parents are very satisfied
with the program, finding it superior to the alternative public school
program that it replaced. However, one of the students, Abby
Avery (AA), and her parents have complained that “the atmosphere at the
School and some of the teachers are very Christian even though there
are no religious services or any other overt religious
teachings.” The Averys have complained to the School District
that the arrangement with BS violates the Establishment Clause.
They have threatened to sue the District if it refuses to terminate the
program.
You are the attorney for the Springdale School
District. The District has come to you for legal advice. It
wants to know whether the Averys are likely to succeed if they go ahead
with their threatened lawsuit. Please make sure to include in
your answer the arguments you would make in defending the arrangement
with BS as well as the arguments you anticipate the Averys would make
in challenging the arrangement. In addition, the District is
considering offering to pay to send Abby to another private school
selected by her parents. The District wants to know whether such
an offer will cure any constitutional defect that currently exists in
the arrangement the District has made with the Briarcliff
School.
Question II
(Suggested time: 60 minutes) (1/3 of total exam points)
The Followers of Sarah Palin, or Palinites, are a
small, but growing organization made up of people who believe that
Sarah Palin was sent to earth by God to help put sinners on the path to
righteousness. The Palinites believe in the Gospel according to
Sarah and follow her teachings as found in her speeches and her
recently published book as well as her postings on Facebook and
Twitter. Based on these teachings, they believe in the sanctity
of traditional marriage, that life begins at conception, that human
life is sacred, that God created man in his own image as described in
the Book of Genesis, that the people of Alaska are God’s chosen people,
and that Barack Obama is the Antichrist. Palinites believe that
the United States will become a paradise on earth the day that Sarah
Palin is elected President.
A group of 500 Palinites purchased a large tract of
land in the Town of Springhaven located in the State of Stone.
They have built housing for their members on their property and have
become active in Springhaven town government. Springhaven had a
population of 2000 prior to the arrival of the Palinites, and that
number has now grown to 2500. The town has its own School
District and operates a small public school system that includes 2
elementary schools, 1 middle school, and 1 high school. The
teachers employed by the Springhaven School District have a collective
bargaining agreement with the District. Among its provisions are
a school calendar that entitles them to a fixed number of single-day
school holidays when all District schools are closed. These
holidays are in addition to longer school closings such as the
Thanksgiving holiday break, the holiday break that includes the end of
December and the beginning of January, a week in February and a week in
April. The collective bargaining agreement provides for 6
single-day holidays selected by the School District. In the past
these single-day holidays have been Yom Kippur (if it falls on a week
day), Columbus Day, Veteran’s Day, Martin Luther King, Jr. Day, Good
Friday, and Memorial Day. If Yom Kippur, the Jewish Day of
Atonement, falls on a weekend, the calendar replaces it with a holiday
for Holocaust Remembrance Day, a day with no religious
significance. The School District has selected the single-day
holidays for a combination of reasons including tradition, consistency
with the schedule of National Holidays and workplace closings, and
coordination of the school calendar with the religious observances of
many of its students.
After the Palinites moved to Springhaven, they
enrolled their children in the Springhaven public schools. They
have been active in school events, have attended School Board meetings,
and recently succeeding in electing one of their members, Carol
Chambers (CC), to the School Board. Since her election, CC has
been campaigning for a change in the school calendar to recognize
February 11 as a single-day school holiday. February 11 is Sarah
Palin’s birthday and the day is celebrated by Palinites as a day to
dedicate themselves to the cause of spreading the Gospel according to
Sarah Palin. On this day, the Palinites travel throughout the
state to try and recruit new members. The day concludes with a
community gathering at which speeches are made, songs are sung, and
readings from Sarah Palin’s speeches and her book are recited.
With the help of a strong campaign by other
Palinites, CC has convinced the Springhaven School Board to replace Yom
Kippur (or Holocaust Remembrance Day) with Sarah Palin Day (February
11) as one of the 6 single-day holidays on the school calendar.
In any year when February 11 falls on a weekend, the school calendar
would instead recognize Yom Kippur (or Holocaust Remembrance Day) as it
previously did.
Shortly after this change in the school calendar was
announced, Barry Borden (BB), the father of 2 children who attend the
Springhaven public schools, filed a lawsuit against the School
District. His suit argues that the change in the school calendar
to recognize Sarah Palin Day violates both the Establishment and Free
Exercises Clauses. Among the arguments made by the School
District in its defense is the argument that the Palinites are a
political and not a religious organization, and that even if they are a
religion, the School District is permitted to accommodate their
religious practices.
You are the law clerk for the judge assigned to BB’s
case. She asks you to analyze the Establishment and Free
Exercise issues presented by the lawsuit filed by BB. Your
analysis should include the arguments that can be made by BB in support
of his Establishment and Free Exercise claims, and the arguments that
can be made by the School District in support of its position that the
calendar change does not violate the Establishment and Free Exercise
Clauses.
Question III
(Suggested time: 60 minutes) (1/3 of total exam
points)
The City of Les Croix is a small city in the State
of Stone. Les Croix, which means “the crosses” in French, was
founded in 1720 by a group of French Huguenots who traveled from Canada
to the United States in search of better economic conditions. The
city’s name was chosen because the original settlers had strong
Protestant religious beliefs, and they carried crosses with them on
their pilgrimage from Canada. They believed that divine
intervention allowed them to reach their new home despite many
difficulties including weather, disease, terrain, and shortages of
food. After they chose the location of their new settlement, the
original settlers erected the crosses that had helped guide them on
their journey in a prominent place in their new settlement.
The use of a cross as a symbol for the City of Les
Croix continues to this day. The city’s official seal, dating
back to 1806, includes two crosses (reflecting the origins of the
city), the text “founded in 1720," a figure that represents Bertrand
LaFleur, an early mayor, several trees (to reflect the trees that have
dotted the city’s landscape since its founding), and a body of water
(to indicate that the city is built next to the Channing River).
The official seal appears on Les Croix public
property, including signs, flags, buildings (such as City Hall and the
City library), official uniforms (such as those of the City's police
and firefighters), and vehicles (such as police cars and sanitation
trucks). Moreover, the symbol appears on public documents including the
City's letterhead, notices, maps, and brochures. Some private entities
in Les Croix also use crosses on their logos. For example, Les
Croix Candy, a major candy maker and local employer, uses two stylized
crosses as part of its business logo.
George Garber (GG) moved to Les Croix 2 years
ago. He is Jewish and he is uncomfortable with the fact that he
notices the city seal as he goes about his business within the
town. He recently obtained signatures to put a proposition on the
ballot during a local election requiring the city to remove the crosses
from its official seal. The proposition was defeated by an
overwhelming margin.
GG has concluded that his only remaining recourse is
to file a lawsuit. He has come to you for legal advice. He
wants to know whether he would be likely to succeed if he filed suit
against the City of Les Croix asserting that the presence of the
crosses on the city seal violates the Establishment Clause. In
the alternative, he wants to know if he has the right to demand that
the city add a Star of David, a Jewish religious symbol, to the
seal. Please make sure to include in your answer the arguments
that you could make on behalf of GG as well as the arguments you
anticipate that the City of Les Croix would make in defense of its
official seal.
END OF
EXAMINATION