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