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.