Religion & the Constitution
December 14, 2011
Professor Leora Harpaz
Final Examination

Question I
(Suggested time: 90 minutes) (72 points out of 144 total exam points)

St. Joseph Hospital, a Catholic hospital in South Bend, Indiana, decided to sell its 21-acre site in downtown South Bend and relocate outside of the City. The site was purchased by St. Michael’s High School, a Catholic high school, for $500,000. The low price was due to the fact that St. Michael’s was the only entity that expressed any interest in purchasing the property. St. Michael’s wants to build a new high school campus on the site with extensive athletic facilities. St. Michael’s estimates that the cost of the new campus will be approximately $35 million. St. Michael’s plans to raise this money through donations from alumni and private foundations.

In order to build the athletic facilities it has planned for its new campus, St. Michael’s needs additional land. It attempted to purchase a Family Dollar store that occupies a 3-acre site immediately adjacent to the hospital property. However, St. Michael’s was unsuccessful because the owner of the Family Dollar store wanted to sell the property for over a million dollars, more money than St. Michael’s could afford for land acquisition costs.

The City of South Bend was following these developments with great interest. The St. Joseph Hospital property is located in a central part of the downtown area and it is important to the City that the property be occupied. A large, vacant property in such a prominent location would interfere with the City’s efforts at economic revitalization of its downtown area.

Shortly after St. Michael’s negotiations with the owner of the Family Dollar store fell through, representatives of St. Michael’s made public statements suggesting the school might not be able to go forward with its plans to build a new campus on the St. Joseph Hospital site. To prevent the plans to build a new campus from failing, the South Bend City Council passed a resolution authorizing the City to purchase the Family Dollar store property with funds from the City’s Economic Development Fund. The Fund receives its money from a special economic development tax paid by City residents. Shortly after the City Council resolution was passed, the City of South Bend purchased the Family Dollar store property for $1.2 million.

Almost immediately following the purchase of the Family Dollar store property, the City began to arrange to transfer the property to St. Michael’s High School in exchange for opportunities to use the athletic facilities that will be built on the Family Dollar site for a period of 10 years. The agreement negotiated between the City and St. Michael’s for the transfer of ownership of the Family Dollar store property gives St. Michael’s the exclusive right to decide when the athletic facilities will be available for use by the City and does not guarantee the City any specific number of hours of use. This limited right to use the athletic facilities has a monetary value far less than the $1.2 million the City spent to purchase the property it intends to transfer to St. Michael’s High School. The formal transfer of the property is to occur in January, 2012.  

Barbara Borden (BB), a South Bend resident and taxpayer, has filed suit in the Federal District Court to enjoin the transfer of the Family Dollar store property to St. Michael’s. In her lawsuit she argues that, under the factual circumstances, the transfer of the property to St. Michael’s High School will violate the Establishment Clause of the U.S. 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 BB in support of her position that the property transfer violates the Establishment Clause as well as an analysis of the Establishment Clause arguments than can be made by the City of South Bend in defense of the property transfer. The judge tells you that, in addition to any other issues you can identify, he wants you to address the application of several different tests to the facts of the case including: (1) the Lemon test; (2) the Agostini test; and (3) the endorsement test. In addition to applying these three tests, the judge is uncertain how to characterize what the City has done. The judge wants you to consider several possibilities which may apply: (1) whether Larkin v. Grendel’s Den, Inc. (Casebook, Volume II, page 426) is relevant to the case; (2) whether the transfer is an example of accommodation of religion and, if so, whether it satisfies the requirements of Justice Kennedy’s accommodation test as announced in his concurring opinion in Board of Education of Kiryas Joel Village School District v. Grumet (Volume II, pages 566-68); and (3) whether the City’s action in purchasing and transferring the property is an example of a denominational preference that fails the strict scrutiny test sometimes applied to such favoritism?

Question II
(Suggested time: 45 minutes) (36 points out of 144 total exam points)

On December 1, 2011, the City of Springdale erected its annual holiday display in a small City-owned park located near the downtown shopping district. While the items in the display are paid for with funds donated to the City, City employees erect and remove the display each year and it is stored in a warehouse owned by the City. This year’s display consists of colored lights, a creche, a menorah, and a cross. A small plaque is attached to the base of the cross. It reads “In memory of Joshua Lang who died in the service of his country.” Joshua lived in Springdale his entire life until he enlisted in the military. He died in Iraq in 2009. His parent’s donated money to the City early this year and asked the City to use the money to include a memorial cross to honor Joshua in its annual holiday display and the City agreed. In addition to the plaque at the base of the cross, there is a sign in front of the holiday display that reads “During this holiday season, let us remember those who serve.”

Mark Morris (MM) is a homeowner who resides in the City of Springdale and pays property taxes to the City. He works in a building near the downtown shopping district. He has found the holiday display to be offensive in the past, but the addition of the cross to this year’s display moved him to take action. He has filed suit in Federal District Court against the City claiming that the holiday display violates the Establishment Clause of the U.S. Constitution.  

You are a law clerk working for the judge assigned to the case. The judge asks you to write an analysis of the Establishment Clause arguments that MM can make in support of his lawsuit challenging the constitutionality of the holiday display as well as the Establishment Clause arguments that can be made by the City of Springdale in defense of its holiday display.

Question III
(Suggested time: 45 minutes) (36 out of 144 total exam points)

The Granger Middle School is a public school located in the Springdale School District. Granger Middle School holds a holiday assembly shortly before school closes in December for the winter break. Parents and family members are invited to attend the assembly. Each class at the school prepares entertainment for the holiday assembly as part of the school’s performing arts curriculum. The typical entertainment involves singing a song, acting a scene from a play, performing a dance number, or playing musical instruments. With some guidance from their teacher, each class chooses for itself how to participate in the holiday assembly. The school issues some guidelines for class performances that guide the class selections. Under the guidelines, the entertainment must be:

(1) suitable for the holiday season;
(2) no more than 10 minutes long;
(3) in good taste;
(4) suitable for the age and maturity level of the students;
(5) not knowingly offensive to audience members; and
(6) containing content that recognizes the holiday season, including the religious holidays that occur this time of year, but is suitable for a public school and its diverse student body.

At this year’s holiday assembly, the students in one of the seventh grade classes, with the approval of their teacher, sang “Away in a Manger.” The lyrics of the song are as follows:

Away in a manger, no crib for a bed, the little Lord Jesus laid down his sweet head.
The stars in the sky looked down where he lay, the little Lord Jesus, asleep on the hay.

The cattle are lowing, the baby awakes, but little Lord Jesus, no crying he makes;
I love thee, Lord Jesus, look down from the sky and stay by my cradle till morning is nigh.

Be near me, Lord Jesus, I ask thee to stay close by me forever, and love me, I pray;
bless all the dear children in thy tender care, and fit us for heaven to live with thee there.

Another seventh grade class sang “Hark! the Herald Angels Sing,” with no objection from their teacher or the school principal, who was consulted about the choice. The lyrics are as follow:

Hark! the herald angels sing, "Glory to the new born King,
peace on earth, and mercy mild, God and sinners reconciled!"
Joyful, all ye nations rise, join the triumph of the skies;
with th' angelic host proclaim, "Christ is born in Bethlehem!"
Hark! the herald angels sing, "Glory to the new born King!"

Christ, by highest heaven adored; Christ, the everlasting Lord;
late in time behold him come, offspring of a virgin's womb.
Veiled in flesh the Godhead see; hail th' incarnate Deity,
pleased with us in flesh to dwell, Jesus, our Emmanuel.
Hark! the herald angels sing, "Glory to the new born King!"

Hail the heaven-born Prince of Peace! Hail the Sun of Righteousness!
Light and life to all he brings, risen with healing in his wings.
Mild he lays his glory by, born that we no more may die,
born to raise us from the earth, born to give us second birth.
Hark! the herald angels sing, "Glory to the new born King!"

After the holiday assembly, the principal of Granger Middle School received a number of complaints about the religious content at the assembly. One parent has threatened to sue the school if it does not specifically prevent students from singing songs with such distinct religious content. The parent told the principal that since students are required to participate in the holiday assembly, it is unfair to impose such Christian content on members of the student body.

You are the attorney for the Springdale School District. The principal comes to you for legal advice. She wants to know whether the current holiday assembly guidelines violate the Establishment and/or Free Exercise Clauses and whether the decision to permit individual classes to choose songs such as “Away in a Manger” and “Hark! the Herald Angels Sing” puts the school in legal jeopardy. Please describe for the school principal the arguments you would make on behalf of Granger Middle School if the school decided to continue its current policies and practices and was sued as a result.

End of Examination