Hilsenrath v. SCHOOL DISTRICT OF THE CHATHAMS et al
Filing
101
SUPPLEMENTAL OPINION ON REMAND. Signed by Judge Kevin McNulty on 10/16/2023. (qa, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LIBBY HILSENRATH, on behalf of
her minor child, C.H.,
Plaintiff,
v.
SCHOOL DISTRICT OF THE
CHATHAMS, BOARD OF EDUCATION
OF THE SCHOOL DISTRICT OF THE
CHATHAMS, MICHAEL LASUSA,
KAREN CHASE, JILL GIHORSKI,
STEVEN MAHER, MEGAN KEOWN,
and CHRISTINE JAKOWSKI,
Civ. No. 18-00966 (KM) (MAH)
SUPPLEMENTAL OPINION
ON REMAND
Defendants.
KEVIN MCNULTY, U.S.D.J.:
This case is an Establishment Clause challenge brought by Libby
Hilsenrath on behalf of her son, C.H., 1 to instruction about Islam in C.H.’s
seventh-grade World Cultures and Geography course in the Chatham public
schools. On November 12, 2020, this Court granted Defendants’ motion for
summary judgment and denied Hilsenrath’s cross-motion for summary
judgment, holding as follows:
(1) Hilsenrath has standing to pursue a claim for nominal damages, but
not for prospective injunctive or declaratory relief;
(2) the School Board for the School District of the District of the
Chathams (the “Board”) is a proper defendant, and Superintendent LaSusa’s
involvement in the curricular decisions is sufficient to trigger potential liability
under Monell v. Department of Social Services, 436 U.S. 658 (1978);
The identity of C.H., the minor child on whose behalf Ms. Hilsenrath sues, is
properly anonymized.
1
(3) the claims against the individual defendants and the School District
of the Chathams (the “District”) must be dismissed; and
(4) the seventh-grade World Cultures and Geography curriculum and
materials did not violate the Establishment Clause.
On July 20, 2022, following an appeal by Hilsenrath, the Third Circuit
vacated this Court’s judgment and remanded the case “for further
consideration in light of the Supreme Court’s opinion in Kennedy v. Bremerton
Sch. Dist., 142 S. Ct. 2407 (June 27, 2022).” (DE 87.) That case, decided after I
rendered my decision, bears on the proper test that should be applied in
analyzing Hilsenrath’s Establishment Clause claims.
Again before the Court on remand are Defendants’ motion for summary
judgment (DE 62) and Hilsenrath’s cross-motion for summary judgment
(DE 63). At the Court’s invitation, each side filed a supplemental brief on
remand. (DE 99, 100 (as corrected).) What follows amounts to an amendment
of my prior decision, revised in accordance with Kennedy v. Bremerton and the
parties’ supplemental briefing. It should be read, mutatis mutandis, against the
backdrop of the fuller discussion in my earlier decision. For the following
reasons, Defendants’ motion for summary judgment is again GRANTED, and
Hilsenrath’s motion for summary judgment is DENIED. 2
My previous Opinion’s prefatory note regarding the delicate nature of the issues
raised by this case bears repeating here:
2
This well-framed case presented sensitive issues requiring
factual inquiry and . . . [n]o one’s educational, ideological, or
religious priors were sufficient to decide it. I understand well
the strong feelings that accompany such issues and claims.
I do not dismiss the plaintiff’s concerns, and I am by no
means unsympathetic with parents’ desire to control their
children’s exposure to religious indoctrination. I am also
acutely aware that this is public, not parochial, education.
Religion, however, is a fact about the world, and no study of
geography and cultures is complete without it. There is, to
be sure, a line to be drawn between teaching about religion
and teaching religion. On this record, I must conclude that
the school did not cross that line.
(500 F. Supp. 3d at 277–78, SJ Op. at 2.)
2
BACKGROUND 3
A. Facts
The World Cultures and Geography Course
During the 2016–2017 school year, C.H. was a seventh-grade student at
Chatham Middle School, in the School District of the Chathams. He was
3
Certain citations to the record are abbreviated as follows:
DE = Docket entry number in this case
Compl. = Complaint (DE 1)
Def. SMF = Defendants’ Statement of Material Facts (DE 62-2)
C.H. Dep. = C.H. Deposition Transcript, Exhibit F to Defendants’ Motion
for Summary Judgment (DE 62-10)
Jakowski Dep. = Christine Jakowski Deposition Transcript, Exhibit Y to
Defendants’ Motion for Summary Judgment (DE 62-29)
LaSusa Dep. = Michael LaSusa Deposition Transcript, Exhibit K to
Defendants’ Motion for Summary Judgment (62-15)
Weber Dep. = Jill Weber Deposition Transcript, Exhibit I to Defendants’
Motion for Summary Judgment (DE 62-13)
Video 1 = Introduction to Islam Video, Exhibit 17 to Plaintiff’s Motion for
Summary Judgment, https://www.youtube.com/watch?v=ZHujiWd49l4
(DE 63-18)
Video 2 = 5 Pillars of Islam Video, Exhibit 18 to Plaintiff’s Motion for
Summary Judgment, https://www.youtube.com/watch?v=ikVGwzVg48c
(DE 63-19)
Worksheet = Introduction to Islam Worksheet, Exhibit PP to Defendants’
Motion for Summary Judgment (DE 62-46)
SJ Op. = November 20, 2020 Opinion granting Defendants’ motion for
summary judgment and denying Plaintiff’s cross-motion for summary
judgment (DE 82). The published version of this Opinion can be found at
Hilsenrath on behalf of C.H. v. Sch. Dist. of Chathams, 500 F. Supp. 3d
272 (D.N.J. 2020).
Pl. Br. = Plaintiff’s Supplemental Brief in Support of Summary Judgment
after the Third Circuit’s Order to Vacate and Remand (DE 99)
Def. Br. = Supplemental Brief in Further Support of Defendants’ Motion
for Summary Judgment on Remand from the Third Circuit (DE 100)
3
enrolled in a mandatory course called World Cultures and Geography, taught
by defendants Megan Keown and Christine Jakowski. (Def. SMF ¶¶ 96–98,
125.) 4 The aim of the course was to “develop[] a broad understanding of the
world and its people” so that “students will become active and informed global
citizens.” (DE 62-36 at 1.) To that end, the course devoted a unit of study to
each of the world’s major geographic regions. (Id.) As part of the study of each
region, students learned about the religions commonly practiced in each. (See,
e.g., id.; DE 62-39.)
One unit was devoted to the Middle East and North Africa (“MENA”). As
part of that unit, students learned about Islam, the religion that is prevalent in
that region and is a central component of many of those countries’
governments, laws, and cultures. 5 (DE 62-41.) This particular unit comprised
nine lessons. Most covered geography and current events, but two of the nine
focused on Islam. (Id.)
(a)
Introduction to Islam Video
The first lesson was aimed at teaching students about the general
attributes of the Islamic faith. (Id. at 2.) Ms. Jakowski presented a PowerPoint,
a copy of which was posted on Google Classroom, an online platform for
teachers to post course materials for their students. (Jakowski Dep. at 29:8–
18.) The last of the PowerPoint slides asked students to write down words they
associated with Islam, to watch a linked video introducing students to Islam
(“Video 1”), and then to discuss what generalizations they could make after
watching the video and consider whether those generalizations were valid. (DE
62-42 at 11.) However, Ms. Jakowski did not play Video 1 in class and
Ms. Keown prepared the syllabus for the class and taught until November 2016,
when she went on maternity leave. Ms. Jakowski replaced her and taught the unit at
issue. (Def. SMF ¶¶ 96–98.)
4
To put it another way, these students are citizens of a country which prohibits
establishment of an official religion, but in this unit they were studying countries
which emphatically do not. It is impossible to study the government and culture of, for
example, the Islamic Republic of Iran while avoiding exposure to the tenets of Islam.
5
4
students were not required to watch it as homework. (Jakowski Dep. at 30:21–
31:1, 36:4–6, 45:11–19.) Nonetheless, C.H., with his mother, did access the
presentation and Video 1 from Google Classroom and watched it at home. (C.H.
Dep. at 35:23–36:9.) 6
Video 1 is a five-minute introduction to Islam. The video scrolls through
pictures of Middle Eastern and North African peoples, Islamic art, and Muslim
sites, with singing in the background. 7 Interspersed with these images for the
first half of the video are slides of text asking and answering questions about
Islam:
•
“What is Islam? . . . Faith of divine guidance for Humanity, based on
peace, spirituality and the oneness of God[.]” (Video 1 at 0:17.)
•
“Who is Allah? Allah is the one God who created the heavens and the
earth, who has no equal and is all powerful[.]” (Id. at 0:29.)
•
“Who is Muhammed (S)? Muhammed (Peace be upon him) is the last &
final Messenger of God. God gave him the Noble Quran[.]” (Id. at 1:01.)
•
“What is the Noble Quran? Divine revelation sent to Muhammed (S) last
Prophet of Allah. A Perfect guide for Humanity[.]” (Id. at 1:38.)
•
“What does history say about Islam? Muslims created a tradition of
unsurpassable splendor, scientific thought and timeless art[.]” (Id. at
2:10.)
Around the two-minute mark, the video begins to focus less on Islam as
a religion per se, and more on the achievements of Islamic civilization. (Id. at
A study guide for the MENA unit advised students that the test would be open
note, that their notes should include “general knowledge about [Islam] and 5 Pillars,”
and that they should “[u]se slides on Google Classroom to ensure that you have all
important information in your notes or on the handouts.” (DE 63-14 at 2.)
6
On the YouTube page, the description from the video-creator states that the
music playing in the background is “Qasida Burdah” and provides two links for
download, but neither link seems to be currently active. Hilsenrath has provided what
she attests is a translation of the text of the song, which is religious in nature. (DE 6317.) There is no testimony from C.H. that he clicked the links at the time of viewing
the video or understood what the song, which was in Arabic, signified.
7
5
2:39, 3:02–25.) Also interspersed throughout the video are quotations (with
attributions) from Muslim prayers, the Quran, and Muhammed. (Id. at 0:38,
1:14, 1:24, 1:48, 4:30, 4:19.) The video closes with a text slide stating, “May
God help us all find the true faith, Islam. Ameen” (id. at 4:42), and another
slide, seemingly from the video-creator, thanking family members and Allah (id.
at 4:50).
In his deposition, C.H. testified that he did not remember much about
this video, and did not recall feeling coerced. (C.H. Dep. at 24:24–25:1, 37:3–
11.) That, of course, is relevant but not dispositive.
(b)
Worksheet
The second lesson further explored the tenets of Islam. (DE 62-45 at 2.)
Ms. Jakowski presented a second PowerPoint to the class that provided an
overview of Islam’s major characteristics and its five pillars, “the five
obligations that every Muslim must satisfy in order to live a good and
responsible life according to Islam.” (Id. at 11.) As students listened to that
lesson, they were given a worksheet that corresponded to the presentation. The
worksheet had blanks which students would fill in, or incorrect statements
which they would correct, based on information they had learned. (Jakowski
Dep. at 40:1–10.) The PowerPoint and worksheet covered a range of topics at a
general level: for example, how often Muslims pray, the practice of alms giving,
and why Muslims fast. (Worksheet at 3–5; DE 62-45 at 11–20.)
One slide and corresponding page of the worksheet concerned the pillar
called shahadah, or “Testimony of Faith.” (DE 62-45 at 14.) The shahadah is
described as “[t]he basic statement of the Islamic faith,” and the text of the
shahadah was included in the PowerPoint. (Id. at 14.) 8 The worksheet
Hilsenrath contends that the PowerPoint and worksheet also contained a link to
a webpage that teaches visitors how to convert to Islam, and claims that students
viewed it. (See 500 F. Supp. 3d at 280 n.5, SJ Op. at 5 n.5 (referring to Hilsenrath’s
original brief in support of her motion).) There is indeed a link in both documents to
an informational webpage from the BBC describing the shahadah. (DE 68-9 at 31, 42.)
The webpage states, among other things, that “anyone who cannot recite [the
shahadah] wholeheartedly is not a Muslim” and “[r]eciting this statement three times
8
6
contained an incomplete version of the shahadah, and students filled in the
underlined blanks of the statement: “There is no god but ____ and _____ is his
messenger.” (Worksheet at 4, the correct answers being “Allah” and
“Muhammed.”) C.H. completed part of the worksheet, including the shahadah
page. (C.H. Dep. at 36:1–9; DE 62-47.) 9
(c)
Five Pillars Video
Like the first presentation, the five-pillars presentation contained a link
to a video (“Video 2”) (DE 62-45 at 10), but Video 2 was not played in class or
assigned as homework. (Jakowski Dep. at 36:4–6). C.H., evidently a diligent
student, nevertheless watched it at home with his mother. (C.H. Dep. at 35:23–
36:9). Video 2, five minutes long, opens with text stating that “the following is
an Islamic educational presentation for primary and secondary schools.” (Video
2 at 0:02 (capitalization altered).) Video 2 features two cartoon-animation boys,
Alex and Yusuf, discussing Islam. Alex asks Yusuf, who is Muslim, questions
about his religion. For example, Alex asks Yusuf when he prays and what
Muslims believe. (Id. at 0:50–2:00.) Yusuf states that “Allah is the creator of
everything.” (Id. at 1:30–34.) Yusuf then describes the five pillars to Alex and
recites the shahadah. (Id. at 2:00–2:30.) Video 2 concludes with text
instructing that the viewer can order more information from the video creator,
in front of witnesses is all that anyone need do to become a Muslim.” Shahadah: the
statement of faith, BBC,
http://www.bbc.co.uk/religion/religions/islam/practices/shahadah.shtml (last
updated Aug. 23, 2009). Other than Hilsenrath’s own testimony (DE 63-2 at 129–30),
which does not seem to reflect firsthand observations, there is no indication that Ms.
Jakowski instructed students to follow links in the PowerPoints at home or that C.H.
himself followed any such link. (E.g., Jakowski Dep. at 45:11–19.) As to the worksheet,
Ms. Jakowski testified that it was provided in class, presumably in hard copy (id. at
40:1–3), and C.H. completed the worksheet by hand, so there is no indication that he
would or could have clicked on such a link (C.H. Dep. at 44:23–45:5; see also DE 6247).
Ms. Jakowski described the worksheet as an in-class assignment. C.H. could
not recall whether he completed it at home or in class. (Compare Jakowski Dep. at
40:1–10, with C.H. Dep. at 45:9–10.) At any rate, it is undisputed that C.H. reviewed
the PowerPoint and completed the worksheet as part of the course. (See id.)
9
7
an organization called Discover Islam, and can organize a mosque tour. (Id. at
5:20.) It is clear that Discover Islam is a United Kingdom organization because
its website ends in “co.uk,” the text of the video uses British spelling, and
Yusuf and Alex speak with British accents.
Hilsenrath’s Complaints and Defendants’ Response
After watching the videos with C.H. and reviewing the worksheet,
Hilsenrath felt that the curriculum favored Islam at the expense of Christianity
and Judaism. She sent emails expressing her concerns to (1) Steven Maher,
Social Studies Content Supervisor for the School District; (2) Superintendent of
Curriculum Karen Chase; (3) Superintendent Michael LaSusa; and (4) the
Board of Education of the School District. 10 (DE 62-48; DE 62-50.)
10
For context, I note the roles and responsibilities of each of these parties:
•
Supervisor Maher develops the social studies curriculum and supervises
the social studies teachers. (Def. SMF ¶¶ 85–88.)
•
Assistant Superintendent Chase is responsible for oversight of the
curriculum and Supervisor Maher. (Id. ¶ 78.)
•
Superintendent LaSusa, under New Jersey law, is the “chief executive” of
the District and has the power of “general supervision over all aspects,
including . . . instructional programs, of the schools of the district.” N.J.
Stat. Ann. § 18A:17-20(b); see also Def. SMF ¶ 72. He oversees District
policy regarding curriculum and course materials, and Assistant
Superintendent Chase reports to him. (Weber Dep. at 20:1–21:1, 35:10–
15, 54:13–16; La Susa Dep. at 9:22–25.) He also has the responsibility to
“ensure that teachers follow” District policy that religion is treated
neutrally. (DE 63-15.) Although the Board has the power to hire and fire
the superintendent, the Board does not have the power to overrule him
on decisions regarding instructional materials and curriculum. (Weber
Dep. at 20:1–21:8.) Ultimately, it is his decision to remove materials from
courses, a decision that does not require approval from the Board, and
his determination is deemed to represent that of the Board and District.
(Id. at 51:7–14, 57:7–11; LaSusa Dep. at 101:2–102:2.)
•
The Board, under New Jersey law, is the “body corporate” that supervises
the District. N.J. Stat. Ann. §§ 18A:10-1, 18A:11-1(c)–(d). It consists of
nine members and requires five votes to take any action. (Weber Dep. at
34:9–10; see also N.J. Stat. Ann. § 18A:10-6.) Nonetheless, the
superintendent retains final authority on most day-to-day matters
8
After sending those emails, Hilsenrath attended a Board meeting in
February 2017 and voiced her concerns. (Def. SMF ¶ 186.) In response, the
Board’s Curriculum Committee convened to discuss those concerns. (Id.
¶ 191.) When such complaints are raised, the Committee reviews and
researches them and then publicly presents findings and any
recommendations to the Board. (Weber Dep. at 19:7–25.) The Board usually
does not take formal action regarding Committee recommendations but leaves
that to the superintendent. (Id. at 20:1–21:8.) Here, the Committee meeting
included Superintendent LaSusa, Assistant Superintendent Chase, Supervisor
Maher, social studies teacher Stephanie Lukasiewicz, Board Member Michelle
Clark, and Board President Jill Weber. (Def. SMF ¶ 195; LaSusa Dep. at 93:25–
94:1.)
After reviewing the curriculum and materials, Superintendent LaSusa
and the Committee determined that no changes were necessary. They
presented their findings at the next Board meeting, emphasizing that the
curriculum as a whole aligned with the District policy of religious neutrality.
(DE 62-53, at 2–4; DE 62-54, link to video, passim; DE 63-5 at 24:1–14.) Prior
to the meeting, however, Hilsenrath (and others) appeared on a national
television show to voice her concerns. Seemingly in reaction to what they
regarded as misstatements on the show and the ensuing disruption,
Superintendent LaSusa and Supervisor Maher had the links to the videos
removed from the PowerPoints. (E.g., LaSusa Dep. at 87:6–18; DE 63-23 at 3–4
(referring to reports of violent and vulgar communications).)
B. Procedural History
Months later, when C.H. was in eighth grade and no longer in the World
Cultures and Geography course, Ms. Hilsenrath sued the District, the Board,
Superintendent LaSusa, Assistant Superintendent Chase, Principal Jill
Gihorski, Supervisor Maher, and the two teachers, Ms. Keown and Ms.
involving the schools, including the curriculum, an area which the Board
avoids. (Weber Dep. at 21:4–8.)
9
Jakowski. (Compl. ¶¶ 12–39.) Her claims against the individual defendants
name them in their official capacities only. (Id. at 2.) She alleges a single claim
under 42 U.S.C. § 1983: that the curriculum, with particular focus on the
videos and worksheet, violates the Establishment Clause of the First
Amendment to the United States Constitution. (Id. ¶¶ 99–116.) She seeks (1) an
injunction prohibiting Defendants “from funding and implementing religious
instruction that endorses Islam or that favors Islam,” (2) a declaration that
Defendants violated the rights of herself and C.H. under the Establishment
Clause, (3) a declaration that Defendants’ “training, supervision, policies,
practices, customs, and procedures that promote Islam violate the
Establishment Clause,” (4) nominal damages, and (5) attorney’s fees. (Id.,
Prayer for Relief.)
Defendants moved to dismiss the complaint. I denied that motion,
holding that the Complaint on its face sufficiently alleged an Establishment
Clause claim. Hilsenrath on behalf of C.H. v. Sch. Dist. of Chathams, Civ. No.
18-966, 2018 WL 2980392, at *3–4 (D.N.J. June 13, 2018). Following
discovery, the parties cross-moved for summary judgment. (DE 62, 63.) On
November 12, 2020, I granted Defendants’ motion for summary judgment,
denied Hilsenrath’s motion for summary judgment, and dismissed Hilsenrath’s
Complaint. See SJ Op., 500 F. Supp. 3d 272 (D.N.J. 2020). Hilsenrath
appealed. On July 20, 2022, the Third Circuit vacated the judgment without
reaching the merits as such; rather it remanded the case to this Court “for
further consideration in light of the Supreme Court’s opinion in Kennedy v.
Bremerton Sch. Dist., 142 S. Ct. 2407 (June 27, 2022),” which had been
decided in the interim, while the appeal was pending. See Hilsenrath on behalf
of C.H. v. Sch. Dist. of Chathams, No. 20-3474, 2022 WL 2913754, at *1 (3d
Cir. July 20, 2022). I then ordered supplemental briefing on the issues raised
by the Third Circuit’s remand (DE 90), and the parties submitted briefs
accordingly (DE 99, 100).
10
Having considered the parties’ supplemental submissions, I am now
prepared to rule again on the parties’ motions as directed by the Third Circuit.
LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) provides that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” I
incorporate from my prior opinion the remaining discussion of the legal
standards governing motions and cross-motions for summary judgment. SJ
Op. 10–11, 500 F. Supp. 3d at 282–83.
DISCUSSION
The sole issue before the Court concerns Ms. Hilsenrath’s Establishment
Clause claim for nominal damages. 11 In accordance with the Third Circuit’s
directive remanding this case “for further consideration in light of the Supreme
Court’s opinion in Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (June 27,
2022)” (DE 87), I now revisit the parties’ cross-motions for summary judgment.
I begin my discussion with a brief summary of the Kennedy case and its
bearing on the Establishment Clause challenge here. (Section III.A.) I then
proceed to reanalyze the parties’ motions consistent with that decision. (Section
III.B.)
A. The Kennedy Opinion
In Kennedy, the Supreme Court considered an appeal by a part time
football coach, Joseph Kennedy, who claimed that he lost his job with the
Bremerton School District for “kneel[ing] at midfield after games to offer a quiet
prayer of thanks,” or for leading “pregame or postgame prayers in the locker
The first three of my four original holdings are not implicated by Kennedy and
therefore remain intact. See pp. 1–2, supra.
11
This case having been narrowed to a pure Establishment Clause claim, I also do
not analyze any other constitutional claim, e.g., violation of Fourteenth Amendment
guarantees of substantive due process. See generally Troxel v. Granville, 530 U.S. 57
(2000); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 185 (3d Cir. 2005); Gruenke v.
Seip, 225 F.3d 290, 303–04 (3d Cir. 2000).
11
room.” Kennedy, 142 S. Ct. at 2415–16. Kennedy sued in federal court, alleging
that the school district had violated the First Amendment’s Free Speech and
Free Exercise Clauses. Id. at 2416. The Supreme Court found that Kennedy
had discharged his initial burden to go forward with his free speech and free
exercise claims. Id. at 2422–23. The burden thus shifted to the school district
to demonstrate that its actions were justified. Id. at 2426. 12 Relevant here are
the majority’s holdings with respect to the justification proffered by the school
district that “its suspension of Mr. Kennedy was essential to avoid a violation of
the Establishment Clause.” Id. The majority in Kennedy rejected this
justification and, in so doing, rejected the so-called “Lemon test.” 13 In fact, the
majority suggested that the Supreme Court had already impliedly abandoned
Lemon and “instructed that the Establishment Clause must [instead] be
interpreted by ‘reference to historical practices and understandings.’” Id. at
2428 (citing Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 576 (2014); Am.
Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019) (plurality opinion)).
The majority continued:
“‘[T]he line’” that courts and governments “must draw
between the permissible and the impermissible” has to
“‘accor[d] with history and faithfully reflec[t] the
understanding of the Founding Fathers.’” Town of
Greece, 572 U.S. at 577, 134 S.Ct. 1811 (quoting School
I do not dwell on distinctions between the particular burdens associated with
proving Free Exercise and Free Speech claims. The Court ruled that “[w]hether one
views [Kennedy’s] case through the lens of the Free Exercise or Free Speech Clause,”
Kennedy successfully discharged that initial burden, and that therefore “the burden
shift[ed] to the District.” Kennedy, 142 S. Ct. at 2426.
12
The reference is to Lemon v. Kurtzman, 403 U.S. 602 (1971). Lemon imposed a
three-part inquiry for analyzing Establishment Clause claims, asking (1) whether the
government practice had a secular purpose; (2) whether its “principal or primary
effect” advanced or inhibited religion; and (3) whether it created “an excessive
government entanglement with religion.” Id. at 612–13.
13
In my prior decision, I applied the now-abandoned Lemon test to analyze
Hilsenrath’s Establishment Clause claim. In doing so, I cited then-current Third
Circuit law noting that Lemon had been eroded in many respects, but maintained its
vitality in the area of public education. SJ Op. at 21, 500 F. Supp. 3d at 289–90.
12
Dist. of Abington Township v. Schempp, 374 U.S. 203,
294, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Brennan,
J., concurring)). An analysis focused on original
meaning and history, this Court has stressed, has long
represented the rule rather than some “‘exception’”
within
the
“Court's
Establishment
Clause
jurisprudence.” 572 U.S. at 575.
Id. at 2428 (additional citations omitted).
While clearly rejecting the Lemon test, the majority in Kennedy was less
clear about what would replace it—i.e., what would constitute a proper
“historical analysis” of a party’s Establishment Clause claim in all cases.
Nevertheless, the majority did lay down certain markers which I take as a guide
for this Court’s analysis of these motions.
The most prominent of those markers is the majority’s emphasis on the
presence, or not, of coercion: “[T]his Court has long held that government may
not, consistent with a historically sensitive understanding of the Establishment
Clause, ‘make a religious observance compulsory.’” Id. at 2429 (quoting Zorach
v. Clauson, 343 U.S. 306, 314 (1952)). The majority emphasized that “coercion
along these lines was among the foremost hallmarks of religious
establishments the framers sought to prohibit when they adopted the First
Amendment.” Id.
Further guidance as to what other facts might constitute “hallmarks” of
an Establishment Clause violation may be found at the Kennedy majority
decision footnote 5. That footnote has been described, plausibly in my view, as
a “cipher for interpreting how the Court interprets the Establishment Clause by
reference to history and tradition.” Daniel L. Chen, Kennedy v. Bremerton
School District: The Final Demise of Lemon and the Future of the Establishment
Clause, 21 Harvard J. L. & Pub. Policy Per Curiam, 9 (Summer 2022). Most
helpful is that footnote’s reference to a portion of Justice Gorsuch’s
concurrence in Shurtleff v. City of Boston, Massachusetts, in which he reviews
“our constitutional history [for] some helpful hallmarks that localities and lower
courts can rely on.” 596 U.S. 243, 285 (2022) (Gorsuch, J., concurring). There,
Justice Gorsuch wrote that “[b]eyond a formal declaration that a religious
13
denomination was in fact the established church, . . . founding-era religious
establishments often bore certain other telling traits,” including (1) “the
government exerted control over the doctrine and personnel of the established
church;” (2) “the government mandated attendance in the established church
and punished people for failing to participate;” (3) “the government punished
dissenting churches and individuals for their religious exercise;” (4) “the
government restricted political participation by dissenters;” (5) “the government
provided financial support for the established church, often in a way that
preferred the established denomination over other churches;” and (6) “the
government used the established church to carry out certain civil functions,
often by giving the established church a monopoly over a specific function.”
Id. 14 At least four of these contain a strong element of compulsion,
corroborating the primacy of coercion in the Court’s analysis.
To evaluate an Establishment Clause claim in a manner that is
“consistent with a historically sensitive understanding of the Establishment
Clause,” then, I must determine whether Hilsenrath’s case bears the
In his concurring opinion in Shurtleff, Justice Gorsuch cited to and adopted the
position of Professor Michael McConnell when he enumerated these six hallmarks of
founding-era religious establishments. See Shurtleff v. City of Bos., Massachusetts, 596
U.S. 243, 285–86(2022) (citing Michael W. McConnell, Establishment and
Disestablishment at the Founding, Part I: Establishment of Religion, 44 William &
Mary L. Rev. 2105 (2003)). Underscoring the Court’s adoption of these hallmarks as
the guiding principles for Establishment Clause jurisprudence, footnote 5 of the
majority opinion in Kennedy also cites directly to Professor McConnell’s scholarship.
See Kennedy, 142 S. Ct. at 2429 n.5 (citing same).
14
Footnote 5 of the majority opinion in Kennedy includes two additional citations,
both of which refer to sources that elaborate further on the element of coercion. One
citation is to a section of Justice Scalia’s dissent in Lee v. Weisman in which he
explains that one of the “hallmark[s] of historical establishments of religion was
coercion of religious orthodoxy and of financial support by force of law and threat of
penalty,” 505 U.S. 577, 640–642 (1992) (Scalia, J., dissenting) (emphasis in original),
and the other citation refers to a record of statement by James Madison in the Annals
of Congress explaining that the First Amendment is aimed to prevent one or multiple
sects from “establish[ing] a religion to which they would compel others to conform,” 1
Annals of Cong. 730–731 (1789).
14
“hallmarks of religious establishments the framers sought to prohibit when
they adopted the First Amendment.” Kennedy, 142 S. Ct. at 2429. I now
proceed to apply those principles to the summary judgment motions currently
before the Court.
B. The Summary Judgment Motions on Remand
As directed by the Third Circuit, I reanalyze Hilsenrath’s Establishment
Clause claim for nominal damages, not under the Lemon test, but under the
approach announced recently in Kennedy.
I begin with some general observations. Lurking behind the Supreme
Court’s analysis is the well-recognized tradeoff between the First Amendment
Establishment Clause and Free Exercise Clause in particular cases. See
generally Cutter v. Wilkinson, 544 U.S. 709, 719 (2005) (these two Clauses,
while “express[ing] complementary values,” will “often exert conflicting
pressures”); Locke v. Davey, 540 U.S. 712, 718 (2004) (describing the Clauses
as “frequently in tension”). Any attempt to expand the scope of religious free
exercise in the context of public institutions tends to be met by a
corresponding objection that the state is threatening to establish a particular
religion. Thus, in Kennedy, the coach argued that a school district’s restrictions
on his prayers would interfere with his religious observances under the Free
Exercise Clause; the school district replied that its hands were tied by the
Establishment Clause, under which it could not permissibly endorse the
coach’s religious observances or force others to participate in them. The
Kennedy Court, however, found this to be a “false choice,” because at least on
the facts of that case, these two constitutional commands were not “at odds.”
142 S. Ct. at 2432. Because students and other observers were (to varying
degrees) exposed to the coach’s prayers, but not coerced to participate in them,
there arose “no conflict between the constitutional commands” of the
Establishment Clause and the Free Exercise Clause. Id. In short, the facts “did
not come close to crossing any line one might imagine separating protected
private expression from impermissible government coercion.” Id. at 2429.
15
In a very general sense, Kennedy may be seen as restricting the scope of
the Establishment Clause and, in the name of Free Exercise, granting a bit
more leeway for the presence of religion in the setting of public education.
Under the prior Lemon test, a practice might have been found impermissible if
it lacked a “secular purpose,” “advance[d]” religion, or resulted in excessive
“entanglement” of government and religion. Kennedy emphasizes official
coercion and tradition, a test which will often set a higher threshold for an
Establishment Clause challenge. 15
Kennedy is not, however, legally or factually on point with our case. To
begin with, there is no countervailing Free Exercise issue in our case that
resembles the one in Kennedy; no coaches, faculty members, or even students
are claiming that the authorities punished them for practicing their religion on
school property. So in remanding, the Third Circuit surely was not saying that
Kennedy is directly on point, but rather was responding to this Court’s
application of the Lemon test, which Kennedy has now declared to have been
superseded.
Ms. Hilsenrath’s is a pure Establishment Clause claim. Therefore, I
eschew the now-superseded Lemon test and, gleaning what guidance I can find
from Kennedy, I will analyze whether the challenged materials from C.H.’s
World Cultures and Geography course bear any of the historical “hallmarks of
religious establishments.” Id. at 2407 n.5. As before, I analyze the challenged
materials as a whole and in the context of the curriculum. See, e.g., Cnty. of
Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 597 (1989),
abrogated on other grounds by Town of Greece, 572 U.S. 565. Nothing about
Kennedy undermines the principle that context remains critical, or vitiates the
warning that to “[f]ocus exclusively on the religious component of any activity
would inevitably lead to [the activity’s] invalidation.” Lynch v. Donnelly, 465
That is not to say that the considerations underlying the Lemon test have
become irrelevant; far from it. Kennedy makes it clear, however, that the legal test has
changed.
15
16
U.S. 668, 679–80 (1984) (emphasis added); see also Wood v. Arnold, 915 F.3d
308, 314 (4th Cir. 2019) (“[C]ourts . . . consistently have examined the entire
context surrounding the challenged practice, rather than only reviewing the
contested portion.” (collecting cases from the Fourth, Fifth, Sixth, Seventh,
Ninth, and Eleventh Circuits)), cert. denied, 140 S. Ct. 399 (2019).
I first consider whether the challenged World Cultures and Geography
curriculum and materials were coercive. The Kennedy Court recognized
coercion to be “among the foremost hallmarks of religious establishments the
framers sought to prohibit when they adopted the First Amendment.” 142 S.
Ct. at 2429. After reviewing the parties’ submissions, I find that the record
contains no evidence of significant coercion. 16
To begin with, C.H. expressly testified that he never felt coerced. In fact,
C.H. (correctly, in the District’s view) perceived the purpose and effect of the
lessons as being to educate students about world religions and the importance
of avoiding group generalizations. (C.H. Dep. at 24:18–25:1, 40:8–24, 41:22–
25.) Nor did any other student testify that he or she experienced the course
materials as coercive. In short, direct, subjective evidence of coercion is
lacking.
The analysis here is hampered somewhat by the Kennedy Court’s having found
it unnecessary to define “what exactly qualifies as impermissible coercion in light of
the original meaning of the Establishment Clause.” Kennedy, 142 S. Ct. at 2429.
Precision may not be required, however; here, as in Kennedy, the challenged
curriculum and materials, however repugnant to any individual’s sectarian religious
beliefs, “did not come close to crossing any line one might imagine separating [secular
public education] from impermissible government coercion.” Id. Unless and until the
Third Circuit holds to the contrary, I continue to be guided by its mandate, which I
take to be consistent with Kennedy, that the reviewing court “look[] at whether the
government is coerc[ing] anyone to support or participate in religion or its exercise.”
Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 175 n.18. (3d Cir. 2008)
(citation omitted); see also C.N. v. Ridgewood Bd. of Educ., 430 F.3d at 187. While the
students here were exposed to religious materials, there is no testimony from any
individual that he or she experienced pressure to support or participate in the practice
of any religion.
16
17
Even through an objective lens, however, the materials cannot be viewed
as tending to compel a student “by force of law and threat of penalty,” to
adhere to a particular religious belief or participate in a particular religious
practice. Lee v. Weisman, 505 U.S. at 640–42 (Scalia, J., dissenting). For the
reasons expressed in my prior Opinion, I adhere to my conclusion that “Video 1
was used to introduce students to the tenets of Islam . . . [and] Video 2 likewise
explored Islam through a neutral question-and-answer format that could not
be regarded as proselytizing.” SJ. Op. at 23, 500 F. Supp. 3d at 291. And while
“the worksheet contained fill-in-the-blanks questions, as is typical at the
middle-school level[,] . . . [t]he format fell well short of compelled recitation of a
prayer,” as the worksheet was “clearly designed to assess the students’
understanding of the lesson on Islam,” not to inveigle them into praying. Id.
(citation and quotation omitted). Now of course there is a baseline level of
coercion in all public education, irrespective of the subject matter. 17 The
coercion relevant here, however, would be coerced participation in or adherence
to a religious belief or practice. The educational units at issue, while exposing
students to the tenets of religious faiths in various regions of the world, did not
require or coerce students “to support or participate in” the religious faith
covered by that unit. Borden, 523 F.3d at 175 n.18. (3d Cir. 2008) (emphasis
added). Reasonable students, teachers, and parents would understand that the
school’s mission here was pedagogical, even if these course units exposed
students to world religions whose adherents engage in proselytization. My prior
observation on that point, although phrased in terms of the Lemon test,
remains valid. See SJ Op. at 23, 500 F. Supp. 3d at 291 (“Of course, the
statements of a religion's adherents have a religious purpose, in the mouths of
For example, students are required to attend school from the ages of 6 to 16,
https://nj.gov/education/safety/sandp/attendance (citing N.J. Stat. Ann. §§ 18A:3828 through 31) (last visited Sept. 25, 2023), and their completion of assignments is
enforced by the grading system. I note in passing that the Board apparently had a
policy permitting students to be excused from any part of instruction which the
student or parent finds morally, conscientiously, or religiously offensive. (Def. SMF ¶
38.)
17
18
those adherents. But for secular educators to teach and study about such
statements is not to espouse them, or to proselytize.”). 18
The all-important context here is that this unit was part of a
comprehensive curriculum on world cultures, which necessarily included units
about the predominant religions in the particular area of the world being
studied. Religion was not taught as revealed truth, but rather as an important
fact about the world. Kennedy itself only reinforces the view, expressed at more
length in my prior opinion, that exposure to a variety of viewpoints, including
religious ones, is a proper goal. That goal is not undermined, and indeed may
be enhanced, by non-coercive exposure to opposing beliefs. See Kennedy, 142
S. Ct. at 2431 (any rule suppressing coach’s religious expression “would
undermine a long constitutional tradition under which learning how to tolerate
diverse expressive activities has always been ‘part of learning how to live in a
pluralistic society.’”). 19
In her brief, Hilsenrath does not meaningfully address the Third Circuit’s
mandate on remand, but for the most part hews to her prior general argument
The following observations from my prior Opinion, although presented in the
context of the Lemon “endorsement” test, remain valid to my point here that the
curriculum was educational, not coercive:
18
Although the video-creator can be perceived as believing those tenets,
neither the lesson, Ms. Jakowski, nor even the video-creator invites or
encourages the students to adopt those views. This is par for the course;
to take the Ninth Circuit’s cogent example, “Luther’s ‘Ninety-Nine Theses’
are hardly balanced or objective, yet their pronounced and even
vehement bias does not prevent their study in a history class’s
exploration of the Protestant Reformation, nor is Protestantism itself
‘advanced’ thereby.” [Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d
1373, 1380 (9th Cir. 1994)]. When, as here, religious beliefs are
presented to educate, not convert, students, there is no endorsement of
religion.
SJ. Op. at 25–26, 500 F. Supp. 3d at 292.
The prior Opinion’s discussion of the curriculum’s secular purpose, primary
effect, and entanglement, although keyed to the Lemon test, is highly pertinent and
more comprehensive than the discussion here. SJ Op. at 21–29, 500 F. Supp. 3d at
290–95. It should be read in conjunction with this Opinion.
19
19
that it is a violation of the Establishment Clause for a public school “to
proselytize or to favor any one religion over others.” (Pl. Br. at 7.) Whatever its
legal merits, that argument fails on the facts, and has only grown weaker in
light of Kennedy’s newfound emphasis on coercion. Kennedy, in my view, does
not undermine the case law cited in my prior Opinion, at least insofar as it
applies to this fact pattern. See SJ Op. at 21–29, 500 F. Supp. 3d at 289–95.
The findings of undisputed fact in my prior Opinion dispel any notion
that the World Cultures and Geography course promoted Islam at the expense
of other religions. The evidence, I found, demonstrates that “the curriculum
treats Islam equally with other religions. It is not a standalone course of study,
but is part of a larger survey of world regions and religions.” SJ Op. at 24, 500
F. Supp. 3d at 291. Thus “the World Cultures course includes similar units on,
for example, Hinduism and Buddhism, in which students watch videos on
those religions to understand their tenets and practices.” Id. (citing DE 62-39
at 4, 8–11; DE 68-8). I also rejected Hilsenrath’s argument that “because the
videos on Hinduism and Buddhism are from the perspective of a more neutral
narrator, the World Cultures course does not treat all religions equally and
proselytizes when it comes to Islam.” Id. at 25 n.14. The reader is referred to
the Court’s discussion of these arguments in the prior summary judgment
Opinion.
By focusing on these prior arguments, Hilsenrath fails to grapple with
the task placed before the Court by the mandate of the Third Circuit, i.e., to set
aside the old Lemon test and revisit the case in light of the largely coercionbased standard adopted by the majority in Kennedy.
The World Cultures and Geography curriculum and materials do not
present any of the “hallmarks” associated with establishment of religion to
which Kennedy alluded. There is no evidence that by assigning middle school
students activities and homework regarding various religions and cultures, the
Board “exerted control over the doctrine and personnel of [an] established
church,” “mandated attendance in [an] established church and punished
20
people for failing to participate,” “punished dissenting churches and
individuals for their religious exercise,” “restricted political participation by
dissenters,” “provided financial support for [an] established church,” or “used
the established church to carry out . . . civil functions.” Shurtleff, 596 U.S. at
286 (Gorsuch, J., concurring). These, the sole guides that Kennedy has
furnished the lower courts for the assessment of “coercion” for purposes of an
Establishment Clause challenge in the context of public education, do not fit
the facts of our case.
*
*
*
In sum, the curriculum and materials here were not coercive and do not
otherwise bear or resemble the “hallmarks of religious establishments the
framers sought to prohibit when they adopted the First Amendment.”
Accordingly, the Board did not violate the Establishment Clause. I will enter
summary judgment in the Board’s favor on Hilsenrath’s remaining nominaldamages claim.
CONCLUSION
For the reasons set forth above, Defendants’ motion for summary
judgment, reconsidered on remand with the benefit of additional briefing, is
GRANTED, and Hilsenrath’s motion for summary judgment is DENIED.
An appropriate order follows.
Dated: October 16, 2023
/s/ Kevin McNulty
___________________________________
Hon. Kevin McNulty
United States District Judge
21
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