437 F.3d 1 (2nd Cir. 2006), 04-1229, Skoros v. City of New York

Docket Nº:04-1229-CV.
Citation:437 F.3d 1
Party Name:Andrea SKOROS, individually, and next friend of Nicholas Tine, a minor and Christos Tine, a minor, Plaintiffs-Appellants, v. CITY OF NEW YORK, Joel L. Klein, in his official capacity as Chancellor, New York City Department of Education, and Sonya Lupion, individually, and in her official capacity as Principal, Edith K. Bergtraum School, New York Ci
Case Date:February 02, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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437 F.3d 1 (2nd Cir. 2006)

Andrea SKOROS, individually, and next friend of Nicholas Tine, a minor and Christos Tine, a minor, Plaintiffs-Appellants,


CITY OF NEW YORK, Joel L. Klein, in his official capacity as Chancellor, New York City Department of Education, and Sonya Lupion, individually, and in her official capacity as Principal, Edith K. Bergtraum School, New York City Department of Education, Defendants-Appellees.

No. 04-1229-CV.

United States Court of Appeals, Second Circuit.

February 2, 2006.

Argued: Dec. 13, 2004.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge) in favor of defendants after a bench trial on the plaintiffs' constitutional challenges to New York City's holiday display policy for its public schools.

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[Copyrighted Material Omitted]

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ROBERT J. MUISE, Thomas More Law Center, Ann Arbor, Michigan, for Plaintiffs-Appellants.

CHERYL PAYER (Stephen J. McGrath, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, for Defendants-Appellees.

Troy King, Attorney General; Kevin C. Newsom, Solicitor General; Charles B. Campbell, Assistant Attorney General, State of Alabama, Montgomery, Alabama, Amicus Curiae in support of Plaintiffs-Appellants.

Daniel S. Alter, Steven M. Freeman, David L. Barkey, Anti-Defamation League, New York, New York; Robert G. Sugarman, Todd D. Ommen, Weil, Gotshal & Manges LLP, New York, New York, Amicus Curiae in support of Defendants-Appellees.

Before: FEINBERG, STRAUB, and RAGGI, Circuit Judges.

Judge Straub concurs in part and dissents in part in a separate opinion.

REENA RAGGI, Circuit Judge:

No holiday season is complete, at least for the courts, without one or more First Amendment challenges to public holiday displays. At issue in this case is the holiday display policy promulgated by the Department of Education ("DOE") of the defendant City of New York ("City" or "New York") for the City's public elementary and secondary schools. That policy allows the menorah to be displayed as a symbol of the Jewish holiday of Chanukah and the star and crescent to be displayed as a symbol of the Islamic holiday of Ramadan, but it does not allow a crèche or nativity scene to be displayed as a symbol of the Christian holiday of Christmas. Plaintiff Andrea Skoros sues pursuant to 42 U.S.C. § 1983 on behalf of herself and her two minor children asserting that the policy violates her children's rights under the Establishment and Free Exercise Clauses of the First Amendment, as well as her parental right to control her children's religious upbringing and education as secured by the First and Fourteenth Amendments. See U.S. Const. amends. I, XIV. While Skoros's complaint seeks to enjoin the operation of the DOE holiday display policy, the record suggests that her goal is

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not so much to preclude defendants' use of the menorah or the star and crescent as it is to compel inclusion of the crèche in public school holiday displays.1

After a bench trial, Judge Charles P. Sifton of the United States District Court for the Eastern District of New York rejected plaintiffs' constitutional claims on the merits and entered judgment in favor of the City, as well as co-defendants Joel L. Klein, sued in his official capacity as DOE Chancellor, and Sonya Lupion, sued individually and in her official capacity as the principal of the City's Edith K. Bergtraum elementary school ("P.S. 165"). See Skoros v. City of New York, No. CV-02-6439, 2004 U.S. Dist. LEXIS 2234 (E.D.N.Y. Feb. 18, 2004). Skoros now appeals that judgment, and the State of Alabama appears as amicus curiae to support her challenge. In urging affirmance, defendants have the support of the Anti-Defamation League as amicus curiae.

For the reasons stated in this opinion, we affirm the judgment of the district court. We emphasize at the outset that we do not decide on this appeal whether, consistent with the First Amendment, the DOE could ever include a crèche in a public school winter holiday display. We decide only that the defendants do not violate the Constitution when, in pursuing the secular goal of promoting respect for diverse cultural traditions, they do not include a crèche in such displays, representing Christmas through a variety of that holiday's well recognized secular symbols, even though Chanukah is represented by the menorah and Ramadan by the star and crescent.

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I. Background

A. Plaintiff Skoros and Her Children

Plaintiff Andrea Skoros is a Roman Catholic raising her two minor sons, Nicholas and Christos Tine, in that faith. During the 2001-2002 school year, Nicholas was a third-grade student at New York City's P.S. 165. In the 2002-2003 school year, Nicholas attended fourth grade at P.S. 169, while his brother Christos attended second grade at P.S. 184. The boys remained in these public schools through the trial of this case.

B. The New York City Public School System

New York City has the largest public school system in the country, with over one million students enrolled in its 1200 public schools and programs. This student population, like the population of the City itself, represents virtually every race, nationality, ethnicity, and religious and cultural tradition in the world. City public school students speak 140 different primary languages, including Spanish, Chinese, Russian, Urdu, Bengali, Haitian-Creole, Arabic, Korean, Albanian, French, Punjabi, and Polish. More than 125,000 students are enrolled in programs to learn English.

C. The Challenged Holiday Display Policy

For some time, City educators have recognized the obvious: young schoolchildren are often excited toward the end of the year about approaching holidays. School officials decided that this excitement could be channeled constructively by using the variety of year-end holidays - including Christmas, Chanukah, Ramadan, and Kwanzaa2 -- to teach children about and to encourage respect for the different cultures in their community. Because some of the identified holidays have religious origins, questions arose as to what holiday symbols could appropriately be displayed in the public schools without appearing to endorse religion in violation of the First Amendment. To provide guidance, in 1997, the DOE Office of Legal Services, working in conjunction with the City Office of Corporation Counsel, developed a holiday display policy for the public schools.

The iteration of this policy here at issue is that memorialized in virtually identical memoranda dated November 28, 2001, and November 18, 2002, from the Chancellor's general counsel to all City public school superintendents and principals (hereafter referred to collectively as the "Holiday Display Memo").3 The first paragraph of the Holiday Display Memo states the purpose of the DOE policy:

New York City is a diverse multi-cultural community. It is our responsibility as educators to foster mutual understanding and respect for the many beliefs and customs stemming from our community's religious, racial, ethnic and cultural

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heritage. In furtherance of this goal, we must be cognizant of and sensitive to the special significance of seasonal observances and religious holidays. At the same time, we must be mindful that the Constitution prohibits a school system from endorsing or promoting a particular religion or belief system.

Holiday Display Memo at 1. The memorandum proceeds to outline the "guidelines [that] should be followed with respect to the display of cultural/holiday symbols":

1. The display of secular holiday symbol decorations is permitted. Such symbols include, but are not limited to, Christmas trees, Menorahs, and the Star and Crescent.

2. Holiday displays shall not appear to promote or celebrate any single religion or holiday. Therefore, any symbol or decoration which may be used must be displayed simultaneously with other symbols or decorations reflecting different beliefs or customs.

3. All holiday displays should be temporary in nature.

4. The primary purpose of all displays shall be to promote the goal of fostering understanding and respect for the rights of all individuals regarding their beliefs, values and customs.

Id. (emphasis in original).

D. The Catholic League's Challenge to the Holiday Display Policy

Soon after the November 2001 dissemination of the Holiday Display Memo, the Catholic League for Religious and Civil Rights unsuccessfully petitioned the DOE to include the crèche in its list of approved symbols for holiday display in the public schools. Skoros submits that she was aware of and in agreement with the Catholic League's efforts and, therefore, did not independently pursue the matter with DOE officials.

According to a December 4, 2001 letter from Catholic League President William A. Donohue to then-Chancellor Harold O. Levy, the Chancellor initially denied the League's request to permit the display of a crèche in public schools because he understood the Supreme Court to have " 'previously refused to permit erection of a nativity scene on public property.' " Donohue Letter to Levy, Dec. 4, 2001, at 2 (purporting to quote Levy). Donohue submitted that this misconstrued Supreme Court precedent, which only barred a public display of a nativity scene in isolation, not in conjunction with secular holiday symbols. See id. (comparing Lynch v. Donnelly, 465 U.S. 668 (1984) with County of Allegheny v. ACLU, 492 U.S. 573 (1989)). Donohue did not assert that the crèche was a secular rather than religious symbol. Instead, he insisted that the right to display religious symbols on public property had been recognized in Capitol Square Review &...

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