Stratechuk v. South Orange-Maplewood School Dist.

• Citation: 587 F.3d 597
• Decision Date: 24 November 2009
• Docket Number: No. 08-3826.,08-3826.
• Parties: Michael STRATECHUK, Individually and on behalf of his minor children, Appellant v. BOARD OF EDUCATION, SOUTH ORANGE-MAPLEWOOD SCHOOL DISTRICT; Brian F. O'Leary, In his official capacity as board president, Board of Education, South Orange-Maplewood School District; Peter P. Horoshak, In his official capacity as superintendent, South Orange-Maplewood School District.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

587 F.3d 597

Michael STRATECHUK, Individually and on behalf of his minor children, Appellant v. BOARD OF EDUCATION, SOUTH ORANGE-MAPLEWOOD SCHOOL DISTRICT; Brian F. O'Leary, In his official capacity as board president, Board of Education, South Orange-Maplewood School District; Peter P. Horoshak, In his official capacity as superintendent, South Orange-Maplewood School District.

No. 08-3826.

United States Court of Appeals, Third Circuit.

Argued September 14, 2009.

Filed: November 24, 2009.

Christopher A. Ferrara, American Catholic Lawyers Association, Inc., Fairfield, NJ, Robert J. Muise, (Argued), Ann Arbor, MI, for Appellant.

Michael F. O'Neill (Argued), Purcell, Ries, Shannon, Mulcahy & O'Neill, Bedminster, NJ, for Appellee.

Robert B. Hoffman, (Argued) Eckert, Seamans, Cherin & Mellott, Harrisburgh, PA, for Amici Anti-Defamation League, Jewish Congress, Jewish Council for Public Affairs, American Jewish Committee, National Council of Jewish Women.

Before: SLOVITER, FUENTES, and SMITH, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

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. App. at 365.

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.

App. at 366.

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,"¹ and that Memoli and Santoro "are engaged in on-going discussions about such musical programs, and they will recommend to me suggested language for regulations which should clarify what types of programs and activities are permissible and not permissible under this policy." App. at 183.

On March 24, 2004, the School Board addressed the December concert issue at Horoschak's annual performance review, and, according to Horoschak's deposition testimony, the "board members had heard from some community members about instrumental music that ... people felt represented a celebration of Christmas holidays and also there ha[d] been discussion about the fact that you really can't balance all religious groups in these representations in these types of performances." App. at 166. The Board decided "that [Policy 2270] would be consistently implemented ... [so] that there wouldn't be so much discretion ... by every faculty member," and discussed drafting regulations to clarify the policy. Stratechuk, 577 F.Supp.2d at 735.

After meeting with relevant faculty and staff, Santoro issued a memo to the Department of Fine Arts, dated October 29, 2004 ("October 2004 Memo"). It stated that the "board policy, as it is written, will be implemented," and included the following bullet points:

[1.] All programs will be reviewed and approved by me. ...

[2.] We will avoid any selection which is considered to represent any religious holiday, be it Christmas, Hanukkah, etc. This holds true for any vocal or instrumental setting.

[3.] I would strongly suggest you gear towards the seasonal selections — Winter Wonderland, Frosty The Snowman, etc. Music centered on Peace is also a nice touch.

[4.] For the High School, the Brass Ensemble repertoire must also adhere to this policy, so the traditional carols must be eliminated from the repertoire.

[5.] The MKL [sic] Gospel Choir cannot perform at the CHS Holiday Assembly for the student body.

[6.] Your printed programs for any Holiday concert must avoid graphics which refer to the holidays, such as Christmas Trees and dreidels.

App. at 249.

In response to the October 2004 Memo, there were complaints from, inter alia, music teachers, parents, the South Orange Village President, and representatives of the MLK Gospel Choir. For example, seventeen members of the Maplewood community signed a "Petition Asking the Board of Education to Honor Religious Tolerance." App. at 250. Other complaints were more vigorous.

However, as Cook explained in his deposition testimony, Policy 2270 "didn't prohibit all religious music" in performances, only "music based on ... or themes consistent with pieces commonly associated with the holiday at the time of the holiday." App. at 92....