Law 790 - Religion and the Constitution

Final Examination

Professor Harpaz

May 2, 2006 

Question I

(Suggested time: 60 minutes) (60 points out of 180 total exam points)

            Northdale is a small town in New England with a population of 5000 residents. Like other New England towns, each May it has an annual Town Meeting at which residents of the town gather and act as a legislative body, voting on operating budgets, laws and other matters for the community's operation during the following 12 months. Northdale also has an elected Town Council consisting of 5 members elected for two year terms. The election is held in November and the newly elected members take office on January 2. The Town Council governs the town on an ongoing basis, interpreting the actions taken at the annual Town Meeting and administering various town functions. Every two years after the new Town Council is sworn in on January 2, the Council elects one of its members to serve as Council President for a two year term. One of the duties of the Council President is to serve as the Moderator at the annual Town Meeting.

            In January, 2005 Grace Gardner (GG) was elected Council President by the members of the Town Council. As Council President, Grace served as Moderator of the 2005 annual Town Meeting. At that time, Grace called the Town Meeting to order and announced that she would begin the meeting with a prayer to solemnize the occasion. She then recited the following prayer:

            Our Heavenly Father we are here today to discuss town business. We ask that you would clear up our minds and our hearts from animosity that we might face these issues and address them with an open mind. We pray that all decisions made today will be most beneficial for the town and its citizens. In Christ’s name we pray. Amen.

            The recitation of the prayer provoked great debate and controversy in Northdale. Many residents supported the prayer, while others opposed it. According to town records and the recollections of long time residents, prior to the 2005 Town Meeting, no prayer had ever been recited at the Town Meeting. GG has indicated that she intends to begin the 2006 Town Meeting with a similar prayer.


            Mark Myers (MM) is a resident of Northdale. He did not attend the 2005 Town Meeting, although he has attended the annual Town Meeting on other occasions. Mark learned about the opening prayer from friends and neighbors. As a non-Christian, he was very upset to hear about the prayer and GG’s plans to open the 2006 Town Meeting in the same way. He has not decided whether to attend the 2006 Annual Meeting which will be held in several weeks. However, he has recently filed a lawsuit against Grace Gardner in her official capacity as Town Council President and Moderator of the annual Town Meeting challenging the constitutionality of the recitation of prayers by the Moderator at the annual Town Meeting. He is seeking a declaration that the recitation is a violation of the Establishment Clause as well as a court order to prevent GG from reciting an opening prayer at the 2006 annual Town Meeting.

            You are a law clerk to the judge assigned to the case. The judge has asked you to analyze the Establishment Clause arguments that MM can make in challenging the opening prayer as well as the arguments that can be made by GG in support of her right to recite a prayer. Be sure and consider the relevance of Marsh v. Chambers (page 332 in casebook) as a part of your analysis.

Question II

(Suggested time: 60 minutes) (60 out of 180 total exam points)

            Springdale High School is a public high school in the City of Springdale. Last year, the Board of Education adopted a program requiring seniors at the high school to provide 10 hours of community service in order to graduate. The requirement was added as a result of the Board of Education’s view that community service is a necessary part of good citizenship and that an important role of the public school system was to instill citizenship values. The community service requirement was to be satisfied by students participating in a required course called Citizenship Training. The course curriculum includes a review of the structure of American government, an examination of local government and the issues facing the community, a class project designed to make a positive contribution to the community and 10 hours of supervised community service performed during non-school hours.

            Steve Sanders (SS) is a teacher at Springdale High School. He has been assigned to teach Citizenship Training. In consultation with the school principal, he has decided to allow the students in his class to select 5 community service activities. The selection process will include presentations by local organizations that provide community service. After the completion of the presentations, the students will discuss the proposed community service activities and cast votes to identify the 5 most popular activities. Once the 5 community service activities have been selected, each student will be required to choose one of the 5 community service activities and devote 10 hours of time to the activity.

            The 10 hours of community service time will be supervised by both Mr. Sanders and a representative of the community service organization. The organization representative will schedule at least 10 hours of community service time for each student, will supervise the work of each student and will report to Mr. Sanders on both the student’s attendance and the quality of the student’s volunteer work. Mr. Sanders will also make occasional unscheduled visits to each site at which students are performing community service to provide oversight of student participation.

            After planning the Citizenship Training course, Mr. Sanders placed notices in Springdale publications describing the selection process and asking community service organizations to sign up to make presentations to his Citizenship Training class. Ten organizations volunteered to make presentations. They included: (1) the Springdale Food Pantry, a non-profit charitable organization that provides meals for indigent persons; (2) the Springdale Homeless Shelter, a local homeless shelter affiliated with a national organization that advocates for the homeless; (3) the city-funded Springdale Community Center which provides free afterschool activities for indigent children; (4) three projects that renovate housing for poor families, two operated by local Baptist churches and one by a local Jewish synagogue; (5) a project to build a community vegetable garden that is run by a local Catholic service organization; (6) a project organized by a local Islamic mosque to help recent immigrants arriving in the community learn English; (7) a hospice run by the Sisters of Mercy, an order of Catholic nuns and (8) a child care center for indigent families run by a local Lutheran church.

            Each public service program sent a representative to Mr. Sander’s Citizenship Training class to make a presentation. Thereafter, the students voted for their 5 favorite activities. The 5 top vote getters were the child care center, the community vegetable garden, the English language tutoring for recent immigrants, the hospice and the Springdale Food Pantry. Of the 5 projects selected, 4 are operated by religious organizations including a Lutheran church, a Catholic service organization, an Islamic mosque and an order of Catholic nuns. Only the Springdale Food Pantry is operated by a secular organization. The projects operated by religious organizations are principally staffed by members of the clergy.

            Jill Johnson is a student in Mr. Sander’s class. Jill and her father, John Johnson (JJ), are atheists. They became upset when they learned about the participation of religious organizations in the Citizenship Training course and the community service activities. JJ has filed a lawsuit on Jill’s behalf challenging the constitutionality of the community service requirement adopted by the Springdale Board of Education as implemented at Springdale High School. The suit asserts that the inclusion of religious organizations in the Citizenship Training course and the community service activities violates the Establishment Clause.

            You are a law clerk to the judge assigned to the case. The judge has asked you to write an analysis of the Establishment Clause arguments that can be made by JJ as well as the arguments that can be made by Springdale High School in defense of the Citizenship Training course as implemented. In answering this question, please consider the Lemon test and the endorsement test. In addition, make sure to consider whether there is impermissible coercion present.

Question III

(Suggested time: 60 minutes) (60 out of 180 total exam points)

This question consists of three subparts. You must answer all three parts. Each part is worth 20 points. Please try and keep your answers brief.

Part One

            The University of Springdale is a state university located in the City of Springdale. The University erected a sculpture garden in an area of its quadrangle, a grassy rectangular area that is surrounded by campus academic and administrative buildings. The sculpture garden was created as a forum to display student art work and it is used to display a rotating group of sculptures by art majors. The sculptures are selected by the Art Department based on their artistic merit. Recently, a sculpture was installed in the quadrangle that is titled “Holier Than Thou.” The sculpture depicts a Roman Catholic priest embracing a young boy in a sexually suggestive manner. A university student has filed suit claiming that the display of the sculpture violates the Establishment Clause because it demonstrates hostility to religion. What result and why?


Part Two

            A large group of orthodox Jews who are members of the Satmar sect recently moved to the Town of Northdale. For over 20 years, the Town has held the monthly meetings of its Town Council, the town’s governing body, on Friday evenings. The Satmars observe the Sabbath from mid afternoon on Friday until sundown on Saturday. During that time they may be at home with their family or attending religious services, but they may not participate in worldly affairs. The Satmars would like to attend Town Council meetings, but they are not able to because the Council meetings take place on Friday evening. A group of Satmar residents recently asked the Town Council to change the monthly meeting to Thursday evening instead of Friday and the Town Council agreed to make the change. A resident of the town who works on Thursday evening and cannot attend meetings on that night has filed suit against the Town. The lawsuit claims that the schedule change violates the Establishment Clause. What result and why?

Part Three

            Linda Lucas is in the eighth grade at Springdale Middle School, a public school in the City of Springdale. Eighth graders are required to take a music appreciation course as part of the required middle school arts curriculum. Linda and her family are practitioners of the Morgantic religion. Morgantics believe that music contains sacred messages from God. Their religious services are filled with music. However, they are not permitted to listen to music except as part of a Morgantic religious service. Linda’s parents have asked school officials to excuse Linda from the music appreciation course because participation would be a violation of her religious beliefs. The school has refused to grant her an exemption. They have told Linda’s parents that all middle school students must take the music appreciation course. Linda’s parents have filed a lawsuit on Linda’s behalf. Their lawsuit asserts that the school’s refusal to excuse Linda from the music appreciation course is a violation of the Free Exercise Clause. What result and why?

                                                END OF EXAMINATION