Law 790 - Religion and the Constitution
Final Examination
Professor Harpaz
May 1, 2008

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

    Kennedy High School, a public high school in the City of Springdale,  holds its annual Senior Awards Assembly (SAA) in April.  During the SAA, awards are given to graduating seniors to recognize various forms of academic and extracurricular achievement.  The SAA is held in the high school auditorium and is attended by teachers, graduating seniors and  their families, and local officials.  Attendance at the SAA is mandatory for graduating seniors.

    The SAA is presided over by Carolyn Cooper, the principal of Kennedy High School.  Also on stage are a number of elected officials including the Mayor of Springdale, the members of the City Council, and the members of the Springdale School Board.  At the SAA, each award is introduced by a teacher who explains what the award recognizes and how its recipient was selected.  The teacher then announces the name of the student who wins the award and the winning student comes to the stage to receive the award from Principal Cooper.  Principal Cooper then congratulates the student, hands the award to the student, and says a few words to recognize the student’s achievement.

    The one exception to this format occurs when, as sometimes happens, the child of one of the elected officials seated on stage wins an award.  When that occurs, as a courtesy to the official, after the award recipient is named, the official joins Principal Cooper and makes some  congratulatory remarks.  The award winners are not announced in advance so the officials do not know that their child will win an award, although in some cases they may be able to anticipate that this is likely to occur.

    The 2008 Senior Awards Assembly occurred two weeks ago.  One of the award recipients was Mary Arnold, the daughter of Alan Arnold, the Chairman of the Springdale School Board.  After Mary Arnold’s name was announced as the winner of the Outstanding Scholar Award, based on her academic average, Mr. Arnold joined Principal Cooper to bestow the award on his daughter.  At that time, he made the following remarks:

    Mary, as your father I am proud that you have won this award, and even prouder that you have done so while serving Jesus Christ.  We have often prayed together as you have progressed through school and I ask you and everyone in the audience to bow their head and pray with me now on this great occasion.

    Dear Savior, bless all those who begin a new stage in their lives. Teach them to know you as the true wisdom of God that has come down from heaven. Lead them to find fulfillment in their daily walks with you, rather than in worldly success. And increase in them the understanding that the things of this world are not an end in themselves, but are a means of preparing for the commencement of the life to come. Amen.

    At the conclusion of the SAA, several parents told Principal Cooper that they were made uncomfortable by Mr. Arnold’s remarks and prayer.  The principal told the parents that she was sorry, but that she had no control over Mr. Arnold and that he was speaking as a parent.  Despite her statements, Principal Cooper was concerned about the religious content of Mr. Arnold’s remarks.  She was particularly concerned that a similar incident might occur at the upcoming high school graduation because Mary Arnold will also receive an academic award on that occasion and her father will have a similar opportunity to congratulate her.

    Mark Miles (MM), the father of Jane Miles (JM), a senior who is about to graduate, attended the SAA with his daughter.  MM and JM also plan to attend the Kennedy High School graduation.  MM has now filed suit against the Springdale School District in federal court on behalf of himself and his daughter.  The suit argues that Mr. Arnold’s remarks and prayer at the SAA violated the Establishment Clause and that a similar incident at graduation will also violate the Establishment Clause.  The suit seeks both damages and injunctive relief.

    You are a law clerk for the judge assigned to the case.  The judge asks you to write an analysis of the Establishment Clause arguments available to MM to challenge Mr. Arnold’s remarks and prayer at the SAA as well as the arguments available to the School District to defend its position that Mr. Arnold’s remarks and prayer at the SAA were not a violation of the Establishment Clause.  The judge asks you to include in your analysis whether, even if Mr. Arnold’s remarks and prayer at the SAA were constitutional under the Establishment Clause,  a repetition of those remarks and prayer at the upcoming high school graduation might nevertheless violate the Establishment Clause.   

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

    The City of Springdale’s population has become increasingly diverse in terms of the race, religion, and ethnicity of its citizens.  To celebrate the City’s religious diversity, five years ago the City created a display entitled “Our Religious Heritage.”  It placed the display on the lawn in front of City Hall.  The display originally included four religious symbols: a Christian Cross (Christianity), a Star of David (Judaism), a Wheel of Dharma (Buddhism), and the Star and Crescent (Islam).  A bronze plaque in front of the display contained a quotation by Robert Kennedy: “Ultimately, America's answer to the intolerant man is diversity, the very diversity which our heritage of religious freedom has inspired.”  
    Shortly after the display was placed on the lawn, three religious denominations with members in Springdale asked the City to accept donations to add even greater religious diversity to the display.  In response to those requests, the City accepted gifts of a Flaming Chalice (Unitarian Universalism), Nine Pointed Star (Bahá'í Faith) and Aum (Hinduism).  As a result of those donations, for the last four years there have been seven religious symbols in the “Our Religious Heritage” display.

    No additional requests for inclusion in the display occurred till very recently.  Last month, the City received a request to add a symbol to the display from a local group called the Springdale Church of Atheism.  The Springdale Church of Atheism is a group whose members do not believe in God or any divine force.  The Springdale Church of Atheism was established in 1973 and currently has 40 members.  Members of the Church believe that human progress can best be achieved through the scientific method and rational, open inquiry.  The Church motto is “Reason, Thought, Compassion.”

    The Springdale Church of Atheism meets each week on Sunday at a member’s house for a Sunday Seminar.  The literature of the Church includes works by prominent Atheists including Richard Dawkins, author of The God Delusion, Sam Harris, and Daniel Dennett.  This literature is discussed at the Sunday Seminars.  In addition, a part of this weekly seminar is a Moment of Science in which a member of the group speaks about an important scientific invention.  In addition, the group concludes its Sunday Seminar with the following reading: “Nothing exists besides natural phenomena. Thought is merely a function of that natural phenomena. Death is complete, and irreversible. We have faith solely in humankind, nature, and the facts of science.”

    The Symbol of the Church of Atheism is an atomic symbol with an incomplete vertical electron orbit and the letter “A” in the center.  The incomplete orbit stands for the incompleteness that is inherent in science and the “A” stands for Atheism.  The Springdale Church of Atheism has offered to donate a suitable replica of its symbol for inclusion in the “Our Religious Heritage” display.  The City rejected the request on the ground that Atheism is not a religion, but a rejection of religion.

    Recently two lawsuits were filed in federal court against the City of Springdale.  The first was by the Springdale Church of Atheism (SCA).  The SCA claims that the City violated its right to free speech by refusing to include its symbol in the “Our Religious Heritage” display in front of City Hall.  The second lawsuit is by Barbara Babcock (BB).  BB lives in the nearby town of Northfield.  She works in Springdale and occasionally walks by City Hall during her lunch hour.  BB is a strong believer in the separation of church and state and she is offended by the display of religious symbols on the City Hall lawn.  She has brought suit arguing that the display violates the Establishment Clause.

    You are a law clerk to the judge who has been assigned to both lawsuits.  The judge asks you to write an analysis of the First Amendment free speech arguments that can be made by SCA in challenging the City’s decision to exclude its symbol as well as the arguments that can be made by the City to defend its decision to reject the symbol.  The judge also asks you to write an analysis of the Establishment Clause arguments that can be made by BB to challenge the “Our Religious Heritage” display as well as the arguments that can be made by the City to defend the display.

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

    The State of Northeast has been concerned about the quality of teachers in its elementary schools.  Two years ago, to increase the training received by elementary school teachers, the State passed the Elementary School Teacher Continuing Education Act (ESTCEA).  The Act, among other things, created the Elementary School Teacher Continuing Education Fund (ESTCEF or the Fund).  Money from the Fund is available to all public and private elementary schools within the State based on the number of elementary school teachers they employ.

    There are a total of 20,000 elementary school teachers employed within the state.  Of the total, 16,000 (80 %) are employed by public schools and 4,000 (20 %) are employed by private schools.  Of the 4000 elementary school teachers employed by private schools, 3000 or 75 % teach at schools affiliated with various religious denominations and 1000 or 25% teach at secular schools with no religious affiliation.  The 3000 teachers employed at private religious schools represent 15 % of the total number of elementary school teachers.  

    Under the terms of the Elementary School Teacher Continuing Education Act, an account is created for each elementary school, and money from the Fund is placed in that account annually based on the number of elementary school teachers the school employs.  A school can draw upon the money in its account to reimburse it for sums expended in teacher training.  Money unspent at the end of each fiscal year goes back into the Fund.  This “use it or lose it” aspect of the funding is designed to encourage schools to make use of the money placed in the school’s account each year.  The reimbursement process requires that schools keep records to verify its expenditure of funds for teacher training.

    During the two years of its existence, $8,000,000, or $400 per teacher, has been placed in the Fund each year for distribution to each elementary school’s account.  During this time, the fund has reimbursed schools for money spent to hire specialists to conduct onsite seminars for its  teachers, and to enable schools to pay the costs so its teachers can enrol in graduate courses in education at nearby colleges and universities, take online courses in teacher training, and attend educational seminars.  All of these are reimbursable expenditures under the ESTCEA.  Among the educational seminars that teachers have attended is the annual Catholic Elementary School Teachers Workshop.  The Workshop helps teachers to introduce additional spiritual elements of Catholicism into their teaching of secular subjects.  In addition, a Jewish Day School hired a well known Jewish educator to help its teachers more effectively communicate the values that are part of the Jewish religion to elementary school children.  The expenses for these programs were reimbursed from the Elementary School Teacher Continuing Education Fund.

    A lawsuit has been filed in federal court by Joan Jackson (JJ), a resident and taxpayer of the State of Northeast.  JJ argues that the ESTCEF violates the Establishment Clause.  The State of Northeast is defending the lawsuit on the ground that the ESTCEF does not violate the Establishment Clause and that the exclusion of parochial school teacher training from reimbursement from the Fund would violate the Constitution.

    You are a law clerk to the judge assigned to the case.  The judge asks you to write an analysis of the Establishment Clause arguments that can be made by Joan Jackson in challenging the ESTCEF as well as the arguments that can be made by the State of Northeast in response to those arguments.