Religion & the Constitution
July 17, 2013
Professor Leora Harpaz
Final Examination

 Question I
(Suggested time: 60 minutes) (50 out of 150 total exam points)

    Springdale North High School, a public school within the Springdale School District, used to have prayers recited by members of the local clergy at home basketball games during a pre-game ceremony. These prayers were eliminated in the wake of the Supreme Court’s decision in Santa Fe Independent School District v. Doe (casebook page 387). Since the Doe decision in 2000, no prayers have been delivered during the pre-game ceremony.

    In addition to the pre-game ceremony and the game itself, home basketball games include a half-time show with performances by the high school cheerleading squad and the school band. The cheerleaders perform routines choreographed by their coach, Sue Silver (SS), a member of the high school faculty. In addition to SS’s routines, there is also one section of their performance where individual cheerleaders or groups of cheerleaders are allowed to make up their own freestyle routines. SS instituted this part of the half-time show four years ago to allow each of the cheerleaders to showcase their individual talents and creativity. This part of their performance is very popular with the hometown crowd.

    Two years ago, some cheerleaders began to bring banners inscribed with Bible verses to use during their freestyle performances. They typically hold up these banners and recite the verses as part of their routine. Sample Bible banners are “I can do all things through Christ who strengthens me” (Philippians 4:13) and “If God is for us, who can be against us? (Romans 8:31).”

    After the banners began to regularly appear at every home game, their coach discussed the issue with Barry Barnes (BB), the school principal. The principal inquired whether SS had requested that the cheerleaders use the banners and whether she had done anything to encourage or discourage the use of the banners. SS told him that she had not requested the banners and had neither encouraged nor discouraged their use. However, SS explained that the parts of routines where the Bible verses on the banners are recited, often with the crowd sitting in the bleachers joining in, take longer than the typical freestyle routine. Therefore, she has allowed these Bible banner routines to be somewhat longer than the time typically allocated to a freestyle routine.

    In addition, SS told BB that since all the cheerleaders can seek reimbursement from the Cheerleaders Uniform Fund (CUF) for their uniforms and props, like pom poms, hoops, and megaphones, used in their freestyle routines, she has allowed cheerleaders who use Bible banners to obtain reimbursement from the fund for their Bible banners as well. The CUF was set up by the Springdale School District. The district contributes a small amount of money to the fund each year, but most of the money in the fund is raised by the cheerleaders through activities like bake sales and seeking private donations from their family and friends.   

    The principal sought guidance from the Superintendent of the Springdale Schools on the banner issue, and the Superintendent decided that there was no constitutional issue raised by individual cheerleaders or groups of cheerleaders using the Bible banners during their individual routines because the school had not directed or encouraged their use.

    Michael Morgan (MM), a Springdale resident, homeowner, and taxpayer, regularly attends the basketball games. His son graduated from Springdale North High School 3 years ago and was a member of the basketball team. MM regularly attended the games while his son was on the team and has continued to attend games since that time. MM has complained to BB about the banners several times and has stated that he will stop attending basketball games if the Bible banners continue to be displayed. BB has told MM that he will not prohibit the banners.

    MM recently filed suit arguing that the banners are a violation of the Establishment Clause. You are a law clerk to the judge assigned to the case. The judge asks you to write an analysis of the arguments that MM can make to argue that the banners violate the Establishment Clause as well as the arguments the Springdale School District can make to argue that they are not a violation of the Establishment Clause.

Question II
(Suggested time: 60 minutes) (50 out of 150 total exam points)

This question consists of two parts. You must answer both parts. Each part is a short essay question. Please try and keep your answers brief.

Part One (30 points)

    The State of Stone provides government employees with a state-funded health insurance plan. Under the plan, in addition to funding traditional medical treatments, the State also funds nontraditional or alternative forms of medical treatment. These include homeopathy, naturopathy, osteopathy, chiropractic, and acupuncture. Moreover, the State funds forms of healing that are based on religious beliefs including faith healing, Christian Science treatment, prayer rings, and other forms of faith-based healing. The broad coverage of various types of treatments is both so that the State can avoid disputes over which types of treatment are beneficial and which are not as well as to avoid discriminating against employees who believe in nontraditional and faith-based treatments. A suit has been filed by a state taxpayer asserting that the State is violating the Establishment Clause by paying for faith-based treatments. What result and why?

Part Two (20 points)

    The City of Springdale owns and operates City Hall Park, located in front of Springdale City Hall. Last December, Occupy Springdale, which is affiliated with similar groups around the country, requested and obtained a park permit to hold an overnight demonstration in the park for 6 consecutive nights ending on December 10th to protest the reduction of government aid to programs to assist the poor such as homeless shelters and food banks. Shortly after the City granted a permit to Occupy Springdale, a group called Occupy God sought a park permit to use City Hall Park for an overnight demonstration that would have taken place on 6 consecutive nights in December ending on December 26. Occupy God was interested in building a temporary homeless shelter for a modern retelling of the story of Mary and Joseph in the manger. The “creche” would have housed a homeless couple who was expecting their first child and who were recently evicted from their home. The City refused to grant Occupy God a permit on the ground that an exclusively religious display in front of City Hall would associate the City with a celebration of the religious aspects of Christmas and would violate the Establishment Clause. Occupy God is suing the City for violating its First Amendment rights. What result and why?

Question III
(Suggested time: 60 minutes) (50 out of 150 total exam points)

    Springdale Central High School, a public school within the Springdale School District, has an Academic Enrichment Program (AEP). The AEP allows students to take up to two classes held during non-school hours in off-site locations and to receive academic credit to count toward their high school diploma for those classes when appropriate. The school allows academic credit to be granted if “(1) the content of the course provides educational enrichment to the student; (2) the content of the course is not offered as part of the regular high school curriculum; (3) the number of hours of instruction and workload are at least the equivalent of a course offered at Springdale Central High School; (4) the course is offered at an accredited institution that has degree granting authority; (5) the instructor has suitable academic credentials; and (6) the student completes all required work in the course and receives a grade of C or higher.”

    The process for gaining approval for an AEP course involves the student submitting information about the course and a statement about how the course will enrich the student’s education. Thereafter, using AEP criteria (1) through (5), the course is evaluated by a Springdale Central guidance counselor who contacts the instructor, obtains course materials, and sits in on several classes. Once the course and instructor are approved, the student may enroll in the course. Thereafter, other students may gain approval for the course without the guidance counselor repeating the approval process. Once a student has completed an approved course, the instructor submits a grade and written evaluation of the student’s performance in the course. Upon completion of the course with a grade of C or higher, the student will receive academic credit.  

    Under this program, many students at Springdale Central High School receive academic credit toward their high school diploma for courses taken at a nearby community college on evenings and weekends. This allows students to study subjects not offered as part of the high school curriculum or to benefit from more advanced study in subjects of great interest to them.

    This year for the first time a student is seeking academic credit under the AEP for religious instruction. Christy Chambers (CC) is seeking academic credit for an afterschool course called Christian Worldview. The course is a program of religious instruction that is designed to “help students learn the basic tenets of the Christian worldview,” and teach students “how they ought to live as a result of what they have learned.” The course emphasizes the conversion experience or being born again, the Bible as the ultimate source of authority, and the need to engage in missionary work to spread Christ’s teachings. The course is taught at Springdale Bible School, a private, Evangelical Christian high school that is accredited and has degree granting authority. The course instructor is Timothy Trent, an ordained minister of the United Evangelical Church, and an experienced teacher licensed to teach in both public and private schools. 

    You are the attorney for the Springdale School District. Jane Johnson (JJ), the principal of Springdale Central High School, comes to you for legal advice. She is uncertain how to respond to CC’s request for academic credit for the Christian Worldview course. JJ asks you three related questions: (1) whether approving AEP credit for the course will violate the Establishment Clause; (2) whether refusing AEP credit for the course will violate the Establishment Clause; and (3) whether refusing AEP credit for the course will violate the Free Exercise Clause. She tells you that she has evaluated the course based on the 5 criteria used to evaluate AEP courses and the course satisfies standards (2) through (5). JJ is uncertain, however, how to evaluate the course based on standard (1) which requires that the course provide educational enrichment to the student. She does not know how to define educational enrichment in the context of a course that involves devotional and proselytizing content. However, JJ is troubled by the idea that academic credit at Springdale Central High School can be awarded for religion courses that involve proselytizing for a set of beliefs rather than an objective inquiry into a subject.  

    Please describe for the school principal the legal arguments you would make on behalf of Springdale Central High School if (1) the school decides to award academic credit for Christian Worldview and is sued as a result on the ground that the award of academic credit violates the Establishment Clause, and (2) the school refuses to award academic credit for Christian Worldview and is sued as a result on the grounds that the refusal to award academic credit violates both the Establishment and Free Exercise Clauses. In addition to describing the legal arguments, please provide JJ with advice as to what she should do and why you recommend that particular course of conduct.

End of Examination