Law 790 - Religion and the Constitution

Final Examination

Professor Harpaz

May 2, 2002

Question I

(Suggested time: 45 minutes) (30 points out of 120 total exam points)

            Each year, Springdale High School, a public high school within the City of Springdale School District, conducts a formal graduation ceremony. The program for the event, as determined by School District guidelines, consists of welcoming remarks by the school principal, the singing of the National Anthem and a flag salute, vocal selections by the school chorus, a graduation speech by the valedictorian, the handing out of diplomas, the presentation of academic awards, a farewell speech by the senior class president, and a recessional. Under District policy, a written text of all student speeches for graduation are reviewed by the principal no later than one week prior to graduation with the principal having final say as to their content.

            Prior to the Supreme Court’s decision in Santa Fe Independent School District v. Doe, the graduation ceremony also included a spiritual invocation delivered by a student chosen by a vote of his or her classmates. However, this part of the graduation ceremony was eliminated after Doe was decided on the advice of the attorney representing the School District. Beginning with the 2001 graduation, no spiritual invocation was included in the graduation ceremony.


            In June, 2001, Chris Cole had the highest academic average of any student in the Springdale High School graduating class and was the class valedictorian. In his valedictory speech at graduation he made numerous proselytizing and sectarian religious references. His speech included the following language: “We are all God’s children, through Jesus Christ, when we accept his love and saving grace in our lives. We will not fully succeed unless we pattern our lives after Jesus’ example.” His speech ended as follows: “I ask you to accept God’s love and grace and yield to God. I ask all these things in the precious holy name of Jesus Christ, Amen.”

            The speech Chris delivered had, as required by district policy, been submitted to the principal prior to graduation. After the principal, Sharon Rogers, read the proposed speech, she met with Chris and suggested that Chris might want to remove some of the proselytizing and sectarian Christian content in the speech because it might be offensive to some in attendance at graduation. However, the principal left that decision up to Chris and did not strike any religious content from the proposed speech. At graduation, Chris delivered his speech as originally written. No one attending the graduation complained about the content of Chris’ speech.

            Plans for the 2002 graduation are currently underway. This year’s valedictorian is Debra Cole, Chris Cole’s younger sister. Debra Cole has made it clear that she intends to deliver a speech that contains similar religious content to the one delivered last year by her brother. The principal has indicated that she plans to handle Debra’s proposed speech in exactly the same way as she dealt with Chris Cole’s speech last year and not prohibit the giving of a speech with proselytizing and sectarian Christian content.

            Jack and Janet Johnson are taxpayers and residents of the City of Springdale. They are also the parents of Julie Johnson, a student in this year’s Springdale High School graduating class. Jack, Janet and Julie Johnson have filed a lawsuit against the City of Springdale School District and Sharon Rogers, in her official capacity as Principal of Springdale High School, seeking to enjoin them from giving Debra Cole permission to deliver her proposed speech if it contains proselytizing and sectarian religious content. The Johnson family state in their complaint that they all wish to attend graduation, but will refrain from doing so if the school permits the inclusion of proselytizing and sectarian Christian content in the graduation ceremony because such content is offensive to them as practicing Buddhists. They are challenging the speech on Establishment Clause grounds.

            You are a law clerk to the judge assigned to the case. The judge asks you to write a memorandum of law detailing the Establishment Clause arguments that are available to the Johnson family in challenging Ms. Roger’s decision to allow the high school valedictorian to include proselytizing and sectarian religious content in her valedictory speech as well as the School District’s arguments in defense of Ms. Roger’s decision to permit the speech.


Question II

(Suggested time: 60 minutes) (40 points out of 120 total exam points)

            Raymond Hardman, a resident of Washington State, has been a practitioner of a Native American religion for many years. Although Mr. Hardman is not of Native American descent, his ex-wife and two children are enrolled members of the S’Kallum Tribe, a federally recognized Indian tribe located in Washington State.

            In 1999, when Mr. Hardman was still married to and living with his ex-wife on the S’Kallum Reservation, his son’s godfather, a Chief of the S’Kallum Tribe, died. Mr. Hardman participated in the Native American religious services that occurred when the Chief died. As part of the religious ritual, a tribal religious leader gave Mr. Hardman a bundle of golden eagle prayer feathers as a remembrance.

            After Mr. Hardman and his wife divorced in June, 2001, he moved off the reservation. Among the possessions he took with him were the golden eagle prayer feathers he had been given. He hung the feathers in the cab of the truck he drives and they remained there until they were observed by a United States Fish and Game Officer. The Officer confiscated the feathers and Mr. Hardman was charged with violating the Federal Migratory Bird Treaty Act.

            Under the terms of the Federal Migratory Bird Treaty Act, it is illegal for any person to “possess any migratory bird, any part, feather, nest or egg of any such bird except as permitted by regulation.” The Act was passed as part of the obligations of the United States as a signatory of a treaty with Great Britain and other nations to protect migratory birds. The golden eagle is defined as a migratory bird under the provisions of the Act.

            The only regulatory exception to the Act that has been adopted is 50 C.F.R. §22 which provides that “the possession of lawfully acquired bald eagles or golden eagles, or their parts, feathers, nests, or eggs for Native American religious use shall be permitted so long as the eagles, eagle parts, feathers, nests or eggs were or are used for a tribally authorized and bona fide Native American religious ceremony and the individual possessing them is a practitioner of a Native American religion and an enrolled member of a federally recognized Indian tribe.” The exception was adopted as a result of the special relationship that the federal government has to members of Indian tribes which has been described as that of “guardian and ward.” That relationship imposes special obligations on the federal government to care for the interests of tribal members and to protect their cultural heritage.

            Mr. Hardman concedes that he does not fall within the terms of the exception to the Migratory Bird Treaty Act because he is not an enrolled member of a federally recognized Indian tribe, a status that is limited to Native Americans. The federal government concedes that Mr. Hardman satisfies all the other requirements of the exception because the golden eagle feathers were used as part of a tribally authorized and bona fide Native American religious ceremony and Mr. Hardman is a practitioner of a Native American religion.


            In defending himself against the charge that he violated the Migratory Bird Treaty Act, Mr. Hardman is arguing that the Act together with its exception, 50 C.F.R. §22, violate the Establishment and Free Exercise Clauses of the United States Constitution. You are a law clerk to the judge assigned to the case. The judge asks you to write a memorandum of law detailing the Establishment and Free Exercise arguments available to Mr. Hardman to establish that the government may not apply the Migratory Bird Treaty Act to his possession of golden eagle feathers as well as the Establishment and Free Exercise arguments available to the federal government in arguing that it is free to prosecute Mr. Hardman under the provisions of the Act.

Question III

(Suggested time: 75 minutes) (50 points out of 120 total exam points)

            In 1996, the State of Wisconsin enacted the Transitional Opportunity and Work, Employment and Responsibility Act (TOWER) as part of its efforts at welfare reform. Under the Act, the State makes contracts with private organizations to provide job training and job placement services to indigent parents in order to end the dependence of needy families with children on government benefits. Under the Charitable Choice provisions of TOWER, religious organizations are eligible, on the same basis as any other private organization, to contract with the State to provide assistance to indigent parents.

            The State of Wisconsin allocates $5,000,000 per year in TOWER funds to the State Department of Workforce Development. For each of the last 3 years, the Department has used the funds to enter into contracts with 10 different private organizations to provide TOWER-authorized services to 500 indigent parents. Of the ten organizations who have received funding for each of the past 3 years, 2 are faith-based and the remaining 8 are not.

            The State of Wisconsin monitors each of the 10 organizations receiving TOWER funds. Each organization is required to file detailed reports about the services provided each indigent parent assigned to the organization. In addition, the state inspects each program site once a year to assure itself that Tower funds are being properly utilized. Moreover, the state audits the books of each organization annually to make sure that TOWER funds have been property expended.

            Monitoring of religious and non-religious organizations is identical except that state law does not allow TOWER funds to be used for religious indoctrination. If the monitoring routinely done by the state suggests that TOWER money is being used for religious indoctrination, the state conducts a more extensive audit. If the audit finds that an organization has violated the ban on the funding of religious indoctrination, the organization is not eligible for any additional TOWER funding. Over the years of its operation, no religious organization receiving TOWER funds has been found to be using those funds for religious indoctrination.

            Faith Works, located in Milwaukee, Wisconsin, is a faith-based private job training and job placement organization. Faith Works provides individuals, or “clients” as they are called, with job training and job placement services. As soon as a client signs up with Faith Works, the client is assigned a counselor. The counselor does a skills assessment, identifies career interests and goals, enrolls the client in an appropriate training program and instructs the client in the religious philosophy that lies at the heart of the Faith Works program. The client spends a minimum of 4 hours a day at the Faith Works headquarters engaged in job training, developing job search skills, and daily counseling sessions.

            The counselors estimate that 20 percent of the time they spend with a client is devoted to spiritual counseling. The counseling takes the form of urging their clients to define their spirituality and find comfort and guidance in their relationship with God. Each counselor has extensive knowledge of the Bible and often quotes from scripture. Faith Works also makes Bible studies and prayer time available to its clients on a voluntary basis. According to the Executive Director of Faith Works, the majority of its clients are not practicing a faith when they enter the program, but more than half of its graduates have some sort of relationship with God when they leave. Clients are not required to profess any particular religious faith and while Faith Works is nominally centered on Christian beliefs, it considers itself to be nondenominational and more interested in spiritual growth than affiliation with any particular religious tradition.

            For 3 years, Faith Works has received $500,000 a year as a TOWER program contractor. Under its State contract, Faith Works has been assigned 50 indigent clients a year in order to help them develop job skills and find a job. Faith Works uses the TOWER funds it receives to offset the costs of its job training programs and to pay up to 50 percent of the salaries of its staff of counselors. While Faith Works believes that none of its activities should be considered “religious indoctrination,” it has utilized TOWER funds so as to avoid raising any issue of State funding of religious indoctrination since its job training programs do not involve spiritual training and no more than 20 percent of the time of any counselor is spent in spiritual counseling.


            The clients assigned to Faith Works are indigent parents with children who have come to the end of their eligibility for welfare benefits and have been told by the State that those benefits will continue only if they enroll in a TOWER-funded program to help them develop job skills and find employment. If the indigent parent agrees to enroll in a TOWER program, the State assigns the indigent parent to a TOWER-funded program with available openings.

            Michael Monroe is an indigent parent residing in Milwaukee, Wisconsin. When he came to the end of his eligibility for welfare benefits, he agreed to be assigned to a TOWER program in order to continue to receive welfare benefits. The State assigned him to Faith Works where he was assigned a counselor, evaluated and enrolled in an appropriate job training program.

            When Mr. Monroe, who is a committed atheist with no belief in God or any other spiritual belief system, objected to the faith-based philosophy of Faith Works, the State told him that there were no spaces available in any of the non-faith-based TOWER programs and that he would have to remain in the Faith Works program or lose his right to receive welfare benefits. Mr. Monroe has filed suit against the State of Wisconsin challenging the state funding of Faith Works as a TOWER contractor under the Establishment Clause and his assignment to Faith Works as a violation of his rights under the Free Exercise Clause.

            You are a law clerk to the judge assigned to the case. The judge has asked you to write a memorandum of law detailing the Establishment and Free Exercise arguments available to Michael Monroe in challenging the state’s funding of Faith Works and his assignment to the Faith Works program as well as the arguments available to the State of Wisconsin to defend against those arguments.