On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-04-cv-06189) District Judge: Honorable William H. Walls.
The opinion of the court was delivered by: Sloviter, Circuit Judge
Argued September 14, 2009
Before: SLOVITER, FUENTES, and SMITH, Circuit Judges.
The issue before us is whether a School District, in order to maintain a policy of complete religious neutrality, may prohibit celebratory religious music at school-sponsored events. The District Court, in a careful analysis of the facts on record and the applicable law, upheld the School District's discretion to maintain and enforce its policy. Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist., 577 F. Supp. 2d 731 (D.N.J. 2008).
The unsuccessful plaintiff, Michael Stratechuk, the father of two students in the School District of South Orange-Maplewood, New Jersey ("School District"), appeals the District Court's grant of summary judgment in favor of the School District (and related defendants) on Stratechuk's claims filed pursuant to 42 U.S.C. § 1983, that the School District's policy on the performance of religious holiday music violates the Establishment Clause and his children's First Amendment "right to receive information and ideas, right to learn, and right to academic freedom." Id. at 749.
I. Factual and Procedural Background
Policy 2270, "Religion in the Schools" ("Policy 2270"), was adopted on April 2, 2001, by the South Orange-Maplewood Board of Education. It provided that:
It is the goal of the [School District] to foster mutual understanding and respect for the right of all individuals regarding their beliefs, values and customs. In pursuing this goal, we recognize that we serve a diverse community with varying cultural, ethnic and religious orientation.
We are cognizant of the role of culture, including religion, in the development of our society and believe that objectively teaching about religion and its role in the social and historical development of civilization does not violate the religious neutrality of the public schools.
Music, art, literature, dance and drama along with religious customs and traditions, which have come to us from various elements of our national population, may be used to broaden our pupils' awareness of the many elements that comprise our diverse American culture.
In any reference to religion in the schools, the district is guided by the following concepts when determining the appropriateness of activities: (1) the activity should have a secular purpose, (2) the activity should neither advance nor inhibit religion, and (3) the activity should have relevance to the curriculum.
On the issue of the "Treatment of Religion in the Curriculum," Policy 2270 permitted the "inclusion of religious literature, music, drama, dance and visual arts in the curriculum provided that it achieves specific goals of the written curriculum in the various fields of study; that it is presented objectively; and that it neither inhibits nor advances any religious point of view." App. at 365. It also permitted student-initiated expression of "religious belief or non-belief in compositions, works of art, music, speech and debate." App. at 365. Policy 2270 permitted the use of religious symbols only "to teach about historical or cultural context, not to promote or celebrate religious concepts, events or holidays." App. at 365.
As most relevant to this appeal, the section,"Treatment of Religious Holidays in Classrooms, School Buildings, Programs or Concerts," provided:
1. Religious holidays are not to be celebrated in the schools, except in the form of the secular nature of that holiday. However, opportunities to learn about cultural and religious traditions should be provided within the framework of the curriculum. Information about religious and cultural holidays and traditions, focusing on how and when they are celebrated, their origins and histories may be part of this instruction.
2. In planning school activities related to the teaching about religious holidays or themes, special effort must be made to ensure the activity is not devotional and that pupils of all faiths and beliefs can join without feeling they are betraying their own faith or beliefs.
3. Decorations with religious significance are not permitted.
4. Religious music, like any other music, can only be used if it achieves specific goals of the music curriculum.
a. Music programs prepared or presented by student groups as an outcome of the curriculum shall not have a religious orientation or focus on religious holidays.
Prior to the 2004-2005 academic year, holiday music (Christmas and Hanukkah songs) were performed at the School District's December concerts. In the Fall of 2003, the mother of a School District student told her child's music teacher, William Cook, that she objected to her daughter playing the "Christmas Sing Along" at the December concert. App. at 77. Cook recounted this concern to Nicholas Santoro, the Director of Fine Arts, who passed the concerns on to James Memoli, the Assistant Superintendent.
In any event, the music repertoire of the December 2003 concert included "Star Spangled Banner," "Sounds of Hanukkah (a medley of 3 Hanukkah tunes)," "Recuerdos de la Alhambra," and the "Christmas Sing Along" which was a medley of "Joy to the World," "Silent Night," "Oh, Come All Ye Faithful," and "Hark the Herald Angels Sing."
After that concert, the objecting mother sent a letter to Peter Horoschak, the Superintendent of the School District, "express[ing her] concern that the School Board policy was not followed" because "point 4(a) [of Policy 2270] clearly states 'Music programs prepared or presented . . . shall not have a religious orientation or focus on religious holidays.'" App. at 181. The letter continued, "[a]s you know, the selection of music, both instrumental and vocal, had a clear religious orientation and focused on religious holidays." App. at 181-82. Horoschak responded, "[i]t was our judgment that because of the variety of both secular and 'holiday' (i.e., Hanukkah and Christmas) selections . . . there was not one particular focus on a particular religion or religious group, and, as such, there was no attempt to advance any religious point of view." App. at 183. However, he also noted that "concerns raised by parents regarding the holiday concert at South Orange Middle School suggest that the policy needs further clarification,"*fn1 and that Memoli and ...