Hilsenrath v. SCHOOL DISTRICT OF THE CHATHAMS et al

Filing 82

OPINION. Signed by Judge Kevin McNulty on 11/12/2020. (dam)

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)
OPINION

Defendants.
KEVIN MCNULTY, U.S.D.J.:
This case is an Establishment Clause challenge by Libby Hilsenrath, on
behalf of her son C.H., to instruction about Islam in C.H.’s seventh-grade world
cultures course. Before the Court are cross-motions for summary judgment.
The motions raise certain threshold or technical issues of standing, arising
from the passage of time and the school’s voluntary withdrawal of certain of the
curriculum materials, and also join issue on the merits. For the following
reasons, Defendants’ motion for summary judgment (DE 62) is GRANTED, and
Hilsenrath’s motion for summary judgment (DE 63) is DENIED.1

1

Certain citations to the record are abbreviated as follows:
DE = docket entry
Def. Brf. = Brief in Support of Defendants’ Motion for Summary Judgment (DE

62-3)
Def. SMF = Defendants’ Statement of Material Facts (DE 62-2)
Pl. Brf. = Brief in Support of Plaintiff’s Motion for Summary Judgment (DE 63)

This well-framed case presented sensitive issues requiring factual inquiry
and the balancing of multiple factors. No 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.

Def. Opp. = Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment
(DE 68-3)
Pl. Opp. = Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment
(DE 69)
Def. Reply = Reply Brief in Support of Defendants’ Motion for Summary
Judgment (DE 70)
Pl. Reply = Reply Brief in Support of Plaintiff’s Motion for Summary Judgment
(DE 71)
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)
2

I.

BACKGROUND

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
enrolled in a mandatory course called World Cultures and Geography, taught
by defendants Megan Keown and Christine Jakowski. (Def. SMF ¶¶ 96–98,
125.)2 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 regions. (Id.) In learning about those regions,
students learned about the religions commonly practiced in each and
compared the religions. (See, e.g., id.; DE 62-39.)
One unit was devoted to the Middle East and North Africa (“MENA”); and
students learned about Islam, the prevalent religion in that region. (DE 62-41.)
There were nine lessons as part of this unit (mostly on geography and current
events), but Islam was only the focus of two. (Id.)
i.

Introduction to Islam Video

The first lesson was aimed at teaching students about generalizations
through the lens of generalizations about Islam. (Id. at 2.) Ms. Jakowski
presented a PowerPoint, and a copy was posted on Google Classroom, an online
platform for teachers to provide students with access to course materials.
(Jakowski Dep. at 29:8–18.) The last slide asked students to write down words
they associated with Islam, watch a linked video introducing students to Islam
(“Video 1”), and then discuss what generalizations they could make after
watching the video and whether those generalizations were valid. (DE 62-42, at
10.) However, Ms. Jakowski did not play Video 1 in class and students were
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.)
2

3

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 at home. (C.H. Dep. at 35:23–
36:9.)3
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.4 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 1.)
3

On the YouTube page, the description from the video-creator states that the
song 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 song, which is religious in nature. (DE 63-17.) 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.
4

4

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 his or her family and Allah
(id. at 4:50).
C.H. later testified that he does not remember much about this video,
and does not recall feeling coerced. (C.H. Dep. at 26:24–25:1, 37:3–11.)
ii.

Worksheet

The second lesson further introduced students to the tenets of Islam. (DE
42, 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.” (DE 45, at 10.) As students listened to Ms.
Jakowski’s lesson, they were given a worksheet to complete that corresponded
with the presentation. The worksheet had blanks which students would fill in,
or incorrect statements which they would correct, based on information they
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
extent of alms giving, and why Muslims fast. (Worksheet at 3–5; DE 45, at 11–
20.)
One slide and corresponding page of the worksheet concerned the pillar
called shahadah, or “Testimony of Faith.” (DE 45, at 10.) 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 13.)5 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 that students viewed it.
(Pl. Brf. at 14.) There is indeed a link in both documents to an informational webpage
from the BBC describing the shahadah. (DE 68-9, at 30, 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 in front of witnesses is all that
anyone need do to become a Muslim.” Shahadah: the statement of faith, BBC,
5
5

contained an incomplete version of the shahadah, and students filled in the
blanks of the statement: “There is no god but Allah and Muhammad is his
messenger” (the underlined words reflect the parts of the statement which the
students completed). (Worksheet at 3.) C.H. completed part of the worksheet,
including the shahadah page. (C.H. Dep. at 36:1–9; DE 62-47.)6
iii.

Five Pillars Video

Like the first presentation, the five-pillars presentation contained a link
to a video (“Video 2”) (DE 45, at 10), but Video 2 was not played in class or
assigned as homework. (Jakowski Dep. at 36:4–6). C.H. watched it at home
with his mother. (C.H. Dep. at 35:23–36:9). Video 2 is five minutes long and
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. Yusuf is Muslim, and Alex asks him 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, an organization
called Discover Islam, and organize a mosque tour. (Id. at 5:20.) It is clear that
http://www.bbc.co.uk/religion/religions/islam/practices/shahadah.shtml (last
updated Aug. 23, 2009). Besides Hilsenrath’s own testimony (DE 63-2, at 129–30),
however, 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 the
worksheet 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 followed any link
(C.H. Dep. at 44:23–45:5; see also DE 62-47).
Ms. Jakowski described the worksheet as an in-class assignment, while C.H.
stated that he could not recall whether he completed it at home or in class. (Compare
Jakowski Dep. at 40:1–10, with C.H. Dep. at 45:8–9.) Fundamentally, however, it is
undisputed that C.H. reviewed the PowerPoint and completed the worksheet as part of
the course. (See id.)
6

6

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. So 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. (DE 62-48, 62-50.) It is important to
understand the roles and responsibilities of each:
•

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.)
7

•

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
involving the schools, including the curriculum, an area which the Board
avoids. (Weber Dep. at 21:4–8.)
After sending 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 her complaints. (Id. ¶ 191.) When
such complaints are raised, the Committee reviews and researches them and
then presents findings and any recommendations to the Board publicly. (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.) 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 and presented
their findings at the next Board meeting, emphasizing that the curriculum
aligned with the District policy of religious neutrality. (DE 62-54, at 2–5; DE
62-5, at 24:1–14.) Prior to the meeting, however, Hilsenrath appeared on a
national television show to voice her concerns, leading to threats from viewers
directed at Board members, administrators, and teachers. (DE 62-54, at 2–3;
DE 62-55.) Because of this disruption, Superintendent LaSusa and Supervisor
Maher had the links to the videos removed from the PowerPoints. (E.g., LaSusa
Dep. at 87:6–18.)

8

B. Procedural History
Months later, when C.H. was in eighth grade and no longer in the World
Cultures course, Hilsenrath sued the District, the Board, Superintendent
LaSusa, Assistant Superintendent Chase, Principal Jill Gihorski, Supervisor
Maher, and the two teachers, Ms. Keown and Ms. Jakowski. (Compl. ¶¶ 12–39.)
Her claims against the individual defendants name them in their official
capacities only. (Id. at 2.) She alleges one claim under 42 U.S.C. § 1983: that
the curriculum, especially 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
her and C.H.’s rights 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, but I denied the motion, holding that the
Complaint on its face 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). Now, following discovery, the parties have crossmoved for summary judgment. C.H. is now in high school.
II.

DISCUSSION AND ANALYSIS
To summarize, I hold as follows:
(1) Hilsenrath has standing to pursue a claim for nominal damages, but

not for prospective injunctive or declaratory relief;
(2) The Board is a proper defendant, and Superintendent LaSusa’s
involvement in the curricular decisions is a policy sufficient to confer potential
liability under Monell v. Department of Social Services, 436 U.S. 658 (1978);
(3) the claims against the individual defendants and the District will be
dismissed; and
9

(4) the seventh grade World Cultures curriculum and materials did not
violate the Establishment Clause.
A. Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “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.”
See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In
deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears
the burden of establishing that no genuine issue of material fact remains. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “[W]ith respect to an
issue on which the nonmoving party bears the burden of proof . . . the burden
on the moving party may be discharged by ‘showing’—that is, pointing out to
the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). The opposing party must present actual evidence that creates
a genuine issue as to a material fact for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); see also Fed. R. Civ. P. 56(c) (setting forth types of
evidence on which nonmoving party must rely to support its assertion that
genuine issues of material fact exist).
When the parties file cross-motions for summary judgment, the
governing standard “does not change.” Clevenger v. First Option Health Plan of
N.J., 208 F. Supp. 2d 463, 468–69 (D.N.J. 2002) (citation omitted). The court
must consider the motions independently. Goldwell of N.J., Inc. v. KPSS, Inc.,
622 F. Supp. 2d 168, 184 (D.N.J. 2009). That one of the cross-motions is
denied does not imply that the other must be granted. For each, “the court
10

construes facts and draws inferences in favor of the party against whom the
motion under consideration is made” but does not “weigh the evidence or make
credibility determinations.” Pichler v. UNITE, 542 F.3d 380, 386 (3d Cir. 2008)
(internal quotation and citations omitted).
B. Standing
I first must assess standing. See Free Speech Coal., Inc. v. Att’y Gen. U.S.,
974 F.3d 408, 421 (3d Cir. 2020). “To establish standing, a party must have
‘(1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable
judicial decision.’” N.J. Dep’t of Env’t Prot. v. Am. Thermoplastics Corp., 974
F.3d 486, 493 (3d Cir. 2020) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1547 (2016)). Hilsenrath “has the burden of demonstrating that these
requirements are met at the ‘commencement of the litigation,’ and must do so
‘separately for each form of relief sought.’” Freedom From Religion Found. Inc. v.
New Kensington Arnold Sch. Dist., 832 F.3d 469, 476 (3d Cir. 2016) (quoting
Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–
81 (2000)).
Of the standing trio, only the injury prong is at issue here. (See Def. Opp.
at 7–13.) “Injury in fact requires ‘the invasion of a concrete and particularized
legally protected interest resulting in harm that is actual or imminent, not
conjectural or hypothetical.’” Sherwin-Williams Co. v. County of Delaware, 968
F.3d 264, 268 (3d Cir. 2020) (quoting Finkelman v. Nat’l Football League, 810
F.3d 187, 193 (3d Cir. 2016)). Parents have a cognizable interest in “the
conditions in their children’s schools.” Donovan ex rel. Donovan v.
Punxsutawney Area Sch. Bd., 336 F.3d 211, 217 n.2 (3d Cir. 2003).
Accordingly, parents suffer an injury when a school’s actions disfavor or favor
religion. E.g., New Kensington, 832 F.3d at 479 n.11. There is no dispute that
Hilsenrath’s allegations, if sustained, would entail some such injury. (Def. Opp.
at 9.) Whether that injury confers standing, however, must be assessed in the
context of the relief sought. See New Kensington, 832 F.3d at 476.
11

Injunctive and Declaratory Relief Claims
To seek injunctive or declaratory relief, Hilsenrath (personally and on
behalf of C.H.) must show that she is either currently suffering the injury or
will likely suffer the injury in the future. Pa. Prison Soc’y v. Cortes, 508 F.3d
156, 166 (3d Cir. 2007) (injunctive relief); see Sherwin-Williams, 968 F.3d at
269, 272 (declaratory relief); St. Thomas-St. John Hotel & Tourism Ass’n, Inc. v.
Gov’t of U.S.V.I., 218 F.3d 232, 240 (3d Cir. 2000) (same). “[P]ast exposure to
illegal conduct” is not enough. McNair v. Synapse Grp. Inc., 672 F.3d 213, 233
(3d Cir. 2012) (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)). For
example, in City of Los Angeles v. Lyons, the victim of a police chokehold
sought to enjoin the department’s chokehold policy. The Supreme Court held
that he lacked standing to seek prospective relief because he could not show
any likelihood that he would be choked again. 461 U.S. 95, 111 (1983).
Hilsenrath cannot show a current or future injury. C.H. is no longer in
the course or even at the Middle School. He thus will not be “subjected” to the
seventh-grade World Cultures curriculum again. Indeed, in the related context
of mootness, courts have held that challenges to school policies or curriculum
no longer present a live controversy when the student de-matriculates from the
school. Doremus v. Bd. of Educ. of Borough of Hawthorne, 342 U.S. 429, 432–33
(1952) (Bible reading in class); Donovan, 336 F.3d at 216 (policy prohibiting
Bible club); Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 73–74 (2d Cir.
2001) (various classroom activities and lesson plans); Wood v. Bd. of Educ. of
Charles Cnty., No. GJH-16-00239, 2016 WL 8669913, at *4 (D. Md. Sept. 30,
2016) (materials similar to those challenged here). Thus, Hilsenrath lacks
standing to seek an injunction prohibiting Defendants from continuing the
curriculum or a declaration that Defendants are violating the Establishment
Clause. (See Compl., Prayer for Relief (b), (c).)7
Hilsenrath’s requested relief includes enjoining Defendants from “funding” the
curriculum at issue. (Compl., Prayer for Relief at (c).) In limited circumstances, the
Supreme Court has recognized taxpayer standing to challenge Establishment Clause
violations. ACLU of N.J. v. Schundler, 104 F.3d 1435, 1445 & n.9 (3d Cir. 1997).
12
7

To be sure, Hilsenrath also seeks a declaration that Defendants
“violated” the Establishment Clause in the past. (See id. at (a).) Such a
retrospective declaration, however, is not the endgame, but a “means” by which
the plaintiff can obtain “some action (or cessation of action) by the defendant.”
Hewitt v. Helms, 482 U.S. 755, 761 (1987). Accordingly, plaintiffs lack standing
to seek a declaration that past conduct was illegal when there is no prospect
that such a declaration can be used to redress a current or future injury. E.g.,
Policastro v. Kontogiannis, 262 F. App’x 429, 434 (3d Cir. 2008); A.S. v.
Harrison Twp. Bd. of Educ., 66 F. Supp. 3d 539, 548 (D.N.J. 2014); A&M
Gerber Chiropractic LLC v. GEICO Gen. Ins. Co., 925 F.3d 1205, 1210–11 (11th
Cir. 2019). Hilsenrath can show only a past injury: the instruction C.H., an
eighth grader when the action was filed, received in seventh grade. She
therefore lacks standing to seek declaratory relief.
Hilsenrath’s arguments to the contrary are unpersuasive. First, she
argues that C.H. “will again encounter the religion of Islam as a topic” in other
courses he takes in high school. (Pl. Reply at 5.) There are several problems
with this theory of standing. For starters, generally “encounter[ing]” Islam in a
curriculum is not an injury. Cf. Sch. Dist. of Abington Twp. v. Schempp, 374
U.S. 203, 255 (1963) (explaining that schools can constitutionally teach
children about religions); New Kensington, 832 F.3d at 480 (plaintiff was not
injured by religious display when she did not understand, at first observance,
that it endorsed a religion). Assuming Hilsenrath means that C.H. will be
exposed to favoritism of Islam in later courses, that injury is too speculative.
Future injuries must be “certainly impending” or there must be “a substantial
Hilsenrath’s briefs do not press such a theory. Regardless, such a theory fails here
because “a municipal taxpayer plaintiff must show (1) that he pays taxes to the
municipal entity, and (2) that more than a de minimis amount of tax revenue has been
expended on the challenged practice itself.” Nichols v. City of Rehoboth Beach, 836
F.3d 275, 281 (3d Cir. 2016) (citing ACLU-NJ v. Township of Wall, 246 F.3d 258, 262
(3d Cir. 2001) (Alito, J.)). Hilsenrath has made neither showing. Moreover, any
expenditure on the instructional materials here would be de minimis. See Township of
Wall, 246 F.3d at 262–63 (surveying cases challenging Bible reading in schools).
13

risk that the harm will occur.” New York v. Dep’t of Commerce, 139 S. Ct. 2551,
2565 (2019) (citation omitted). Evidence of past harms is insufficient—a
plaintiff on summary judgment must produce affidavits or the like to show that
she will face the harm. Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992).
The course in which C.H. may again encounter Islam is eleventh-grade
Advanced Placement World History. (DE 62-26, at 12.) There is no indication
that C.H. will opt to enroll to that particular course, so any exposure is
speculative. See Roberts v. Madigan, 921 F.3d 1047, 1052 (10th Cir. 1990)
(“[S]tudents cannot claim First Amendment violations . . . for actions against a
teacher in whose class they were not enrolled.” (internal quotation marks and
citations omitted)). Even if C.H. planned to enroll, teachers enjoy discretion in
crafting their lessons (e.g., DE 62-26, at 1), so there is no basis to predict
whether Islam will be presented at all, and if so, whether such presentation will
take a form that offends the Establishment Clause. See COPE v. Kansas State
Bd. of Educ., 921 F.3d 1215, 1222–23 (10th Cir. 2016) (no standing to
challenge state educational standards when it was unclear how those
standards would be implemented in the classroom). Thus, Hilsenrath’s theory
that C.H. will again be exposed to Islam in a constitutionally offensive context
is too speculative.
All that aside, Hilsenrath cannot show that “the injury will be redressed
by a favorable decision.” Laidlaw, 528 U.S. at 181. The arguments and
evidence in this case are focused on the seventh-grade course. Any injunction
would need to be based on the facts and arguments she presented. See Trump
v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam)
(“Crafting a preliminary injunction is an exercise of discretion and judgment,
often dependent as much on the equities of a given case as the substance of
the legal issues it presents.”); see also, e.g., Groupe SEB USA, Inc. v. Euro-Pro
Operating LLC, 774 F.3d 192, 206 (3d Cir. 2014). I would have no solid ground
to enjoin the instruction of Islam in an eleventh-grade course when the case

14

before me has been focused on a different, seventh-grade course. Accordingly, a
favorable decision could not redress any future injury that is posited.
Second, Hilsenrath argues that although Defendants removed the videos
from the World Cultures course, it is uncertain whether Defendants will later
reincorporate the videos into the course. (Pl. Reply at 7–10.) In so arguing, she
relies on the voluntary cessation doctrine, which says that a claim is not moot
when a defendant stops his illegal conduct during litigation unless it is clear
that the behavior is not likely to recur. (Id. at 7 (citing New Kensington, 832
F.3d at 476).) The cessation in this case occurred before, not during, litigation.
But in any event, the doctrine has no force here because it cannot serve “as a
substitute for the allegation of present or threatened injury upon which initial
standing must be based.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
109 (1998). Put differently, that Defendants may use the videos in the future
has no relevance because Hilsenrath cannot show that C.H. will ever again be
in a course where the videos could be watched.8
Thus, Hilsenrath lacks standing to seek injunctive and declaratory relief,
and to the extent her claims seek such relief, they will be dismissed.
Nominal Damages Claim
Hilsenrath also seeks nominal damages. (Compl., Prayer at (d).) Here, the
standing analysis is different.
A plaintiff has standing to seek nominal damages for past Establishment
Clause injuries. New Kensington, 832 F.3d at 480. That Hilsenrath cannot

Both parties confuse mootness and standing, with Defendants arguing that the
removal of the videos mooted Hilsenrath’s claims before the Complaint was filed, and
Hilsenrath responding with the voluntary cessation doctrine. (Def. Opp. at 15; Pl.
Reply at 7.) Standing requires showing that a live controversy exists at the outset of
litigation, while mootness requires showing that a live controversy persists throughout
litigation. Hartnett v. Pa. State Educ. Ass’n, 963 F.3d 301, 305–06 (3d Cir. 2020).
Because the removal of the videos occurred before litigation started, it could be
analyzed in relation to the issue of standing. But it is not relevant because, regardless
of whether the videos will be used in a seventh-grade world cultures course again, it is
certain that C.H. will never again be in such a seventh-grade course.
8

15

show future injury is immaterial because damages offer retrospective relief. Id.
at 478 n.7 (citing Lyons, 461 U.S. at 105). It stands to reason, then, that
Hilsenrath would have standing to pursue a nominal-damages claim in relation
to C.H.’s past exposure to the curriculum.
Neither the Third Circuit nor the Supreme Court has addressed whether
a nominal-damages claim alone confers standing. In a concurring opinion in
New Kensington, Chief Judge Smith expressed his view that the answer to that
question should be no, because nominal damages do not truly provide redress
for an injury. Id. at 483–84 (Smith, C.J., concurring).9 A closely related issue is
currently before the Supreme Court of the United States. In Uzuegbunam v.
Preczewski, the Court will consider whether a government’s post-filing
cessation of an allegedly unconstitutional policy moots the case when only a
nominal-damages claims is left. No. 19-968 (Brief for the Petitioners at 1).10
The United States as amicus urges the Court to hold that a nominal-damages
claim is sufficient to confer standing. Id. (Brief for the United States as Amicus
Curiae Supporting Petitioners at 1, 9).
Although the issue is presently unsettled, I conclude that Hilsenrath’s
nominal-damages claim is sufficient to present a live controversy. No precedent
bars such a holding. Nominal damages are available with respect to past
Establishment Clause violations, New Kensington, 832 F.3d at 480 (majority
op.), and damages claims ordinarily suffice to preserve a controversy even if
prospective relief claims fail, see Mission Prods. Holdings, Inc. v. Tempnology,
LLC, 139 S. Ct. 1652, 1660 (2019). I therefore hold that the nominal-damages
claim is sufficient to confer jurisdiction here.

The New Kensington panel did not need to address the question because at
least one plaintiff had standing to seek injunctive relief. 832 F.3d at 481.
9

Three Justices have already indicated their view that a nominal-damages claim
preserves a live controversy. N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York,
140 S. Ct. 1525, 1535 (2020) (Alito, J., joined by Gorsuch & Thomas, JJ.).
10

16

The New Kensington concurrence takes the view that nominal damages
do not redress any injury because they provide no tangible benefit. New
Kensington, 832 F.3d at 485 (Smith, C.J., concurring); see also Morrison v. Bd.
of Educ. of Boyd Cnty., 521 F.3d 602, 610–11 (6th Cir. 2008) (dicta); Utah
Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1267–68 (10th Cir.
2004) (McConnell, J., concurring). The weight of authority, however, is against
that view. Nominal damages reflect that the harm is non-quantifiable, not nonexistent. 25 C.J.S. Damages § 24 (2020). Nominal damages still vindicate a
plaintiff’s rights, and their “value can be of great significance to the litigant and
to society.” Amato v. City of Saratoga Springs, 170 F.3d 311, 317 (2d Cir. 1999);
see also, e.g., Carey v. Piphus, 435 U.S. 247, 253, 266 (1978) (explaining that
nominal damages “vindicat[e]” certain rights that cannot otherwise be
quantified). Although a nominal-damages award is “not exactly a bonanza, [] it
constitutes relief on the merits.” Farrar v. Hobby, 506 U.S. 103, 116 (1992)
(O’Connor, J., concurring). Given the well-supported view that nominal
damages provide redress for a past injury, like Hilsenrath’s here, I conclude
that she has standing to pursue her nominal-damages claim, and that, to that
extent, I have jurisdiction over the case.
C. Theories of Liability
The next set of threshold issues requires the Court to identify the
defendants against whom Hilsenrath can pursue an Establishment Clause
violation and the theories of liability that are cognizable.
The Board and the District
In New Jersey, the terms “school board” and “school district” are often
used interchangeably, but those entities do not have the same legal status. I
rule that the Board, and not the District, is the proper defendant here.
School boards are the governmental entities which exercise the kind of
powers at issue here. See N.J. Stat. Ann. § 18A:10-1 (“The schools of each
school district shall be conducted, by and under the supervision of a board of
education, which shall be a body corporate . . . .”). As such, school boards are
17

created as legal entities with the capacity to sue and be sued. Id. § 18A:11-2(a);
see also Febres v. Camden Bd. of Educ., 445 F.3d 227, 230 (3d Cir. 2006).
A school board may be subject to Monell-style municipal liability if its
policy or custom caused the constitutional violation. Mann v. Palmerton Area
Sch. Dist., 872 F.3d 165, 174–75 (3d Cir. 2017). Policy can be shown if an
official with final policymaking authority for the Board approved or ratified the
curriculum and materials. See McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir.
2005). Such a showing requires me to “determine (1) whether, as a matter of
state law, the official is responsible for making policy in the particular area of
municipal business in question, and (2) whether the official’s authority to make
policy in that area is final and unreviewable.” Hill v. Borough of Kutztown, 455
F.3d 225, 245 (3d Cir. 2006) (internal citations and emphases omitted). That
inquiry involves “[r]eviewing the relevant legal materials, including state and
local positive law, as well as ‘custom or usage having the force of law.’” Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (quoting City of St. Louis v.
Praprotnik, 485 U.S. 112, 124 n.1 (1988) (plurality)).
Superintendent LaSusa qualifies as an official with final policymaking
authority. As to whether he is “responsible for making policy in the particular
area of municipal business in question,” Hill, 455 F.3d at 245, New Jersey law
provides a positive answer. New Jersey grants superintendents “chief
executive” status and power of “general supervision over all aspects,
including . . . instructional programs, of the schools of the district.” N.J. Stat.
Ann. § 18A:17-20(b). The record, too, confirms that Superintendent LaSusa
acts as the chief executive and is responsible for curriculum and academic
programming decisions. (Weber Dep. at 20:1–21:1, 35:10–15, 54:13–16;
LaSusa Dep. at 20:16–18.) What is more, the Board has specifically instructed
him to ensure that teachers maintain religious neutrality (DE 63-15; LaSusa
Dep. at 71:18–72:5, 73:1–4), “the particular area of municipal business in
question” in this case, Hill, 455 F.3d at 245. His authority in these areas is
“final and unreviewable,” id., because the Board cannot overrule him and, at
18

most, can require him to report to the Board regarding such issues. (Weber
Dep. at 29:12–13, 35:10–15, 40:1–10, 54:13–16.)
Superintendent LaSusa also ratified the conduct at issue. “[W]hen a
subordinate’s decision is subject to review by the municipality’s authorized
policymakers, they have retained the authority to measure the official’s
conduct for conformance with their policies. If the authorized policymakers
approve a subordinate’s decision and the basis for it, their ratification would be
chargeable to the municipality . . . .” Prapotnik, 485 U.S. at 127; see also Kelly
v. Borough of Carlisle, 622 F.3d 248, 264 (3d Cir. 2010). Ms. Jakowski is a
subordinate of Superintendent LaSusa, as he is at the top of her chain of
command. (LaSusa Dep. at 9:17–25, 15:22–16:4.) As the final supervisor, he is
“responsible for ensuring that [her] instruction meets appropriate standards”
(id. at 23:1–5), including religious neutrality (id. at 73:1–4). Following
Hilsenrath’s complaints, he, along with others, reviewed the materials and
determined that they comported with the religious neutrality policy and did not
require removal; that determination represents the policy of the Board. (Id. at
94:20–95:4, 101:2–102:2; Weber Dep. at 51:7–14, 57:7–11.) Thus, Ms.
Jakowski’s lessons were subject to review by Superintendent LaSusa for
compliance with policies (including the religious neutrality policy), and he
approved those lessons going forward, so his “ratification” is “chargeable” to the
Board under Monell. Prapotnik, 485 U.S. at 127; see also McGreevy, 413 F.3d
at 368 (“[E]ven one decision by a school superintendent, if s/he were a final
policymaker, would render his or her decision district policy.”).11

Hilsenrath also argues that the Board is liable under Monell based on a failureto-train theory. (Pl. Opp. at 10–13 (citing Forrest v. Parry, 930 F.3d 93, 118 (3d Cir.
2019).) Such a theory, however, will fail if she cannot establish a constitutional
violation. Vargas v. City of Philadelphia, 783 F.3d 962, 974–75 (3d Cir. 2015). Because
I conclude that she has one clearly viable Monell theory, I do not reach this alternative
failure-to-train theory.
11

19

Both as a matter of state law and the Monell doctrine, the Board is the
legal entity responsible for the decisions that are challenged here. It is a proper
defendant.
School districts stand on a different footing. Unlike a school board, a
school district is not created as a legal entity subject to suit. Mesar v. Bound
Brook Bd. of Educ., No. A-2953-16T2, 2018 WL 2027262 (N.J. Super. Ct. App.
Div. May 2, 2018). In addition, the plaintiff here does not identify any basis for
holding the District separately liable. I will therefore dismiss the remaining
nominal-damages claims as against the District.
The individual defendants
I will also dismiss the remaining, nominal-damages claims against the
individual defendants in their official capacities.
The Complaint seeks damages against “all the Defendants.” (Compl.,
Prayer at (d).) Hilsenrath clarifies in her brief, however, that she is seeking
nominal damages only against the Board and the District, not the individual
defendants. (Pl. Reply Br. at 15.)12 Accepting that concession, I find that the
In the motion-to-dismiss decision, I recognized that the individuals were
probably included only as “relief defendants,” i.e., persons who might be required for
the fashioning of effective injunctive relief. Even at the pleading stage, however, these
defendants appeared to be superfluous. See Hilsenrath, 2018 WL 2980392, at *1
(citing Kentucky v. Graham, 473 U.S. 159, 166–67 & n.14 (1985) (“There is no longer a
need to bring official-capacity actions against local government officials, for . . . local
government units can be sued directly for damages and injunctive or declaratory
relief.”)).
12

Technically, the plaintiff’s concession might be seen as an amendment of the
complaint, which cannot generally be accomplished by means of statements in a brief.
See Jones v. Treece, 774 F. App’x 65, 67 (3d Cir. 2019); see also Commw. of Pa. ex. rel
Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988). There is some authority
for the proposition that I may treat Hilsenrath’s brief as a motion to amend, if
Defendants consent or there would be no prejudice. Ragland v. Comm’r N.J. Dep’t of
Corrs., 717 F. App’x 175, 178 n.6 (3d Cir. 2017) (per curiam); Onal v. BP Amoco Corp.,
275 F. Supp. 2d 650, 658 n.2 (E.D. Pa. 2003), aff’d, 134 F. App’x 515 (3d Cir. 2005).
Here, the amendment is simply a concession that plaintiffs are relinquishing part of a
claim, which they are generally entitled to do, and which does not prejudice any
defendant. I therefore accept the concession.
20

dismissal of the claims for injunctive and declaratory relief on standing
grounds, see supra, leaves no claims outstanding against the individual
defendants.
In sum, I rule that the remaining claims for nominal damages are
properly asserted against the Board, but not the District or the individual
defendants.
D. Merits of the Establishment Clause Claim
Finally, I turn to the underlying merits: whether the challenged materials
and curriculum violate the Establishment Clause. I rule that they do not.
In some respects, the Establishment Clause test is in flux. The default
test has long been that of Lemon v. Kurtzman, 403 U.S. 602 (1971), although
the Supreme Court and Third Circuit have withheld its application in certain
contexts, Freedom From Religion Found., Inc. v. County of Lehigh, 933 F.3d 275,
280–81 (3d Cir. 2019). Not so here, however: “In the public school context, the
Supreme Court has been inclined to apply the Lemon test.” Doe v. Indian River
Sch. Dist., 653 F.3d 256, 282 (3d Cir. 2011). Lemon imposes a three-part
inquiry, 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 entanglement of the government with religion.”
Id. (quoting Lemon, 403 U.S. at 612–13). In undertaking this inquiry, I analyze
the challenged materials together and in the context of the curriculum. Context
is critical; I therefore do not analyze whether any one page, slide, or statement
is an Establishment Clause violation in and of itself. See, e.g., County of
Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 597 (1989),
abrogated on other grounds by Town of Greece v. Galloway, 572 U.S. 565
(2014). Indeed, to “[f]ocus exclusively on the religious component of any activity
would inevitably lead to [the activity’s] invalidation.” Lynch v. Donnelly, 465
U.S. 668, 679–80, (1984). See also Wood v. Arnold, 915 F.3d 308, 314 (4th Cir.)
(“[C]ourts . . . consistently have examined the entire context surrounding the
challenged practice, rather than only reviewing the contested portion.”
21

(collecting cases from the Fourth, Fifth, Sixth, Seventh, Ninth, and Eleventh
Circuits)), cert. denied, 140 S. Ct. 399 (2019).
Secular Purpose
Under the first Lemon prong, I ask whether there is “some secular
purpose,” even if it is not the exclusive purpose, for the government action, or
whether, to the contrary, its “actual purpose is to endorse or disapprove of
religion.” Doe, 653 F.3d at 283 (citation omitted). In discerning the purpose of a
government action, I view it from the perspective of an “objective observer” with
knowledge of the context. McCreary County v. ACLU of Ky., 545 U.S. 844, 862
(2005) (citation omitted).
The Board proffers that the purpose behind the materials and
curriculum is to “assur[e] that our children are intellectually and socially
prepared to become self-reliant members of 21st century society.” (Def. Brf. at
45.) More specifically, the curriculum aims to educate students about the
world’s major religions, a mission which requires some exposure to their tenets
and texts. (Id. at 45–46.) Educating students about religions, which requires
exposure to religious texts, is a valid, secular purpose. Stone v. Graham, 449
U.S. 39, 42 (1980) (“[T]he Bible may constitutionally be used in an appropriate
study of history, civilization, ethics, comparative religion, or the like.”);
Schempp, 374 U.S. at 255 (explaining that “one’s education is not complete
without a study of comparative religion or the history of religion” and the Bible
and religion can be studied “consistently with the First Amendment”). The
Board’s evidence consistently shows that the purpose in the lessons and
instructional materials was merely educational, not to favor or disfavor a
religion. (E.g., DE 62-41, at 2–3 (lesson plan).) The Board’s proffered purpose
bears the hallmarks of being “genuine” and is therefore entitled to “deference.”
McCreary, 545 U.S. at 864.13

The genuineness of the government’s purpose, of course, might present a triable
issue of fact in a particular case. Here, however, discovery has failed to uncover
22
13

In response, Hilsenrath argues that there can be no secular purpose for
exposing students to proselytizing content such as the shahadah or statements
like “Allah is one the God.” (Pl. Opp. at 16–17.) She gets off on the wrong foot,
however, by asking the Court to analyze the purpose behind each statement
she objects to. See Lynch, 465 U.S. at 679–80 (holding that, in a challenge to a
Christmas display that included a crèche, the district court erred in “infer[ring]
from the religious nature of the crèche that the City has no secular purpose for
the display”); see also Wood, 915 F.3d at 314 (citing authorities). Of course, the
statements of a religion’s adherents have a religious purpose, in the mouths of
those adherents. But for secular educators to teach and study about such
statements is not to espouse them, or to proselytize.
The content to which Hilsenrath objects is closely tied to secular
educational purposes. Video 1 was used to introduce students to the tenets of
Islam. It employed quotations from the Quran and Muslim prayers, but there is
no constitutional problem in using religious materials to study “history,
civilization, . . . comparative religion, or the like.” Stone, 449 U.S. at 42. Video 2
likewise explored Islam through a neutral question-and-answer format that
could not be regarded as proselytizing. True, the worksheet contained fill-inthe-blanks questions, as is typical at the middle-school level. The format fell
well short of compelled recitation of a prayer, however, and was clearly
“designed to assess the students’ understanding of the lesson on Islam,” as the
Fourth Circuit explained when upholding a similar worksheet against a First
Amendment challenge. Wood, 915 F.3d at 315.
Thus, the Board had a valid, secular purpose in using its curriculum and
instructional materials to educate students. Nothing in the discovery materials
brought to the Court’s attention bespeaks a proselytizing mission on behalf of
the Islamic faith, and there is nothing in the record to indicate that the Board’s
purpose exceeded its educational mandate.
evidence of an underlying religious purpose. And the case law long ago established the
principle that comparative religion is a legitimate subject of study.
23

Primary Effect
Under the second Lemon prong, I ask whether the primary effect of the
government’s practice is to advance or inhibit religion, regardless of any
secular purpose. Doe, 653 F.3d at 284 (citation omitted). In doing so, I also
consider the related endorsement test, which asks “whether, under the totality
of the circumstances, the challenged practice conveys a message favoring or
disfavoring religion,” from “the viewpoint of the reasonable observer,”
considering “the history and ubiquity of the practice.” Id. (citation omitted). The
curriculum and materials do not have the primary effect of advancing Islam,
and an observer would not perceive any endorsement. For that conclusion, I
offer four reasons.
First, 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, so there is no impermissible favoritism. Generally, in curriculum
cases, a school’s presentation of multiple religious materials or presentation of
religious material in conjunction with nonreligious material tends to
demonstrate that the primary effect of the curriculum is not to advance any
one religion. See Cal. Parents for Equalization of Educ. Materials v. Torlakson,
370 F. Supp. 3d 1057, 1081–82 (N.D. Cal. 2019) (surveying cases), aff’d, 973
F.3d 1010 (9th Cir. 2020). Here, 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. (DE 62-39,
at 4, 8–11; DE 68-8.) A reasonable observer would not perceive an
endorsement of Islam when the course also presented other religions in a
similar manner. Further, Islam is introduced as part of a unit on the Middle
East and North Africa in a course covering geography and world cultures, so it
is presented in conjunction with nonreligious material about a region of the
world.
Second, a reasonable observer would see that the curriculum and
materials are presented as part of an academic exercise. When schools require
24

students to “read, discuss, and think” about a religion, such lessons do not
have the primary effect of advancing that religion. Wood, 915 F.3d at 317; see
also Torlakson, 973 F.3d at 1021; Brown v. Woodland Joint Unified Sch. Dist.,
27 F.3d 1373, 1380 (9th Cir. 1994). Reasonable observers understand that
students are simply learning to “identify the views of a particular religion,” not
to follow the religion. Wood, 915 F.3d at 317; see also Torlakson, 973 F.3d at
1021 (curriculum did not have primary effect when it did not “call for the
teaching of biblical events or figures as historical fact”).
Here, the videos, lessons, and worksheet presented students with the
tenets of Islam. This case falls into the category of those in which schools
permissibly asked students to “read, discuss, and think” about a religion.
Wood, 915 F.3d at 317. True, Video 1 is from the perspective of a believer, but
a reasonable observer would understand that the video is not presented as
representing the views of the teacher or the school; nor is there any indication
that it was presented in a manner to suggest that students should accept the
video-creator’s views as revealed religious truth.14 Rather, Video 1 was assigned
to introduce students to the tenets of Islam. 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’ exploration
of the Protestant Reformation, nor is Protestantism itself ‘advanced’ thereby.”
Relatedly, Hilsenrath argues 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. (Pl.
Reply at 3.) As discussed above, there is no problem with Video 1’s presentation.
Moreover, “Plaintiffs’ efforts to wring an Establishment Clause violation from subtle
differences that they perceive in the curricular treatment of various religions does not
withstand scrutiny, and, if accepted, would paralyze educators in their lawful objective
of treating religion as a topic relevant to world history.” Torlakson, 973 F.3d at 1022
(Bress, J., concurring).
14

25

Brown, 27 F.3d at 1380 (citation omitted). When, as here, religious beliefs are
presented to educate, not convert, students, there is no endorsement of
religion.15
Third, the curriculum and materials did not require or even propose that
the students engage in religious activity. Courts weigh whether the school
requires or invites students to partake in a religious activity. E.g., Wood, 915
F.3d at 317; Brown, 27 F.3d at 1380; Doe, 653 F.3d at 284. For example, in
Malnak v. Yogi, the Third Circuit held that a class about a religion crossed the
line when students were required to participate in a religious ceremony. 592
F.2d 197, 199 (3d Cir. 1979) (per curiam). In contrast, here, C.H. passively
watched two informational videos. As to the worksheet, “students were not
required to memorize the shahada, to recite it, or even to write the complete
statement of faith. Instead, the worksheet included a variety of factual
information related to Islam and merely asked the students to demonstrate
their understanding of the material by completing the partial sentences. This is

Hilsenrath makes much of the facts that (1) Video 2 ended with information
about scheduling a tour of a mosque and (2) one of the PowerPoints and a worksheet
contained a link to a BBC webpage that allegedly teaches visitors how to convert to
Islam. (Pl. Brf. at 19; Pl. Opp. at 4; Pl. Reply at 14–15.)
15

First, as a general matter, information about how students—independently and
on their own time—can visit a house of worship to learn more about a religion is not
per se objectionable. I add that Video 2, made by a United Kingdom company,
suggested a mosque tour under the heading “Discover Islam UK,”, so there is little
realistic possibility that a New Jersey seventh-grader would take up the offer, if that is
what it was.
Second, there is no indication that C.H. or any student actually followed the
link to the BBC webpage, supra note 5, so that link is not central to my inquiry.
Regardless, the webpage is informational, and a reasonable observer would not view
the BBC, a public service broadcaster, as evangelizing for a particular faith. The
objection appears to be to a statement on this third-party website that “[r]eciting [the
shahadah] three times in front of witnesses is all that anyone need do to become a
Muslim.” That statement, however, is factual, and would not reasonably be taken as
the school’s invitation to convert. No more would a factual statement, in a unit on
Christianity, that Christian sects regard infant or adult baptism as the faith’s rite of
admission or adoption.
26

precisely the sort of academic exercise that the Supreme Court has indicated
would not run afoul of the Establishment Clause.” Wood, 915 F.3d at 316
(citing Schempp, 374 U.S. at 225, and analyzing the same worksheet
challenged here). The curriculum never progressed from the academic to the
liturgical, and it did not have the primary effect of advancing religion.
Fourth, a few miscellaneous facts about the larger context also cut
against any holding that the primary effect here was to advance Islam: (1) The
course was given to seventh-grade students, who are considered less
impressionable than elementary school students, as to whom First Amendment
concerns are perhaps more acute. Adolescents are equipped to, and
proverbially do, exercise some independent judgment with respect to what they
are told by adults. See Parker v. Hurley, 514 F.3d 87, 106 (1st Cir. 2008);
Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 686 (7th Cir. 1994); cf.
Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 95–96 (3d Cir. 2008).
(2) Islam occupied only two lessons within a yearlong course, so objective
observers would be less likely to perceive an endorsement of Islam. Wood, 915
F.3d at 317–18; Brown, 27 F.3d at 1380. (3) The curriculum was designed not
just to educate to students about Islam but also to teach them valuable lessons
about uncritical acceptance of cultural generalizations. See Fleischfresser, 15
F.3d at 689 (reading program that used witchcraft as the subject of stories did
not have the primary effect of advancing witchcraft because the primary effect
of the lesson was to “improv[e] [] reading skills and to develop imagination and
creativity”). And (4) many American students learn about world religions,
including but hardly limited to Islam, as shown in cases like Wood. A
reasonable observer considering the “history and ubiquity of the practice”
would understand that such lessons here are part of a common academic
program. See Doe, 653 F.3d at 284. These facts further weigh in favor of my

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conclusion that these lessons did not run afoul of the second, “effects” prong of
Lemon.16
Excessive Entanglement
Under the third Lemon prong, I ask whether the challenged practices
“foster an excessive government entanglement with religion.” Doe, 653 F.3d at
288 (quoting Lemon, 403 U.S. at 613). I analyze how the challenged practices
create a “relationship between the government and religious authority,” but
“excessive entanglement requires more than mere interaction between church
and state, for some level of interaction has always been tolerated.” Id. (internal
quotation marks, citations, and alterations omitted). In cases involving
curriculum or programs at schools, courts have looked to whether the school
works with religious entities to create the curriculum and whether the school
must constantly monitor the activities to ensure no endorsement of religion.
See Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist., 587 F.3d 597,
608 (3d Cir. 2009); Wood, 915 F.3d at 318; Brown, 27 F.3d at 1384;
Fleischfresser, 15 F.3d at 688.
Here, there is not even evidence of “mere interaction between church and
state.” Doe, 653 F.3d at 288 (citation omitted). Teachers and Supervisor Maher
created the lesson plans, and there is no indication that they worked with any
religious organization in doing so. (Def. SMF ¶¶ 154–55.)17 Absent the rare

It is worth pointing out that C.H. never felt coerced, and, in fact perceived the
purpose and effect of the lessons as 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.) Still, it is not necessarily significant that one student or another is mature
and independent-minded; Lemon’s second prong is an objective inquiry, not an
evaluation of each student’s response.
16

This is not to say that working with a religious organization to develop an
accurate and respectful curriculum should qualify as excessive entanglement. See
Doe, 653 F.3d at 288 (government interaction with religious organizations is not per se
excessive entanglement). And even if it did, “entanglement, standing alone, will not
render an action unconstitutional if the action does not have the overall effect of
advancing, endorsing, or disapproving of religion.” ACLU of N.J. ex rel Lander v.
Schundler, 168 F.3d 92, 97 (3d Cir. 1999). Be that as it may, this case does present
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17

parent complaint, the teachers are left alone to implement the lessons
themselves, so there is no need to entangle the Board in continual surveillance
of the classroom. See Brown, 27 F.3d at 1384.
Hilsenrath cites Doe, in which school board members composed and
recited prayers at meetings. 653 F.3d at 288. Both Doe and this case, she
urges, involve excessive entanglement because the incorporate religion as part
of a “formal activity” (there, board meetings; here, the required classroom
curriculum). (Pl. Opp. at 22–23.) The “effects” analysis, see Section II.D.2,
supra, largely disposes of that argument. See Child Evangelism Fellowship of
N.J. Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 534 (3d Cir. 2004) (Alito, J.)
(“[T]he factors employed to assess whether an entanglement is excessive are
similar to the factors used to examine effect.” (internal quotation marks,
citation, and alterations omitted)); ACLU of N.J. ex rel Lander v. Schundler, 168
F.3d 92, 97 (3d Cir. 1999) (explaining that the Supreme Court has sometimes
collapsed the effects and entanglement prongs). Moreover, there is little
similarity between Doe and this case. In Doe, the Third Circuit found
entanglement because the board formally participated in a religious activity by
composing and reciting prayers at meetings, “hallmarks of state involvement.”
653 F.3d at 288. But, as explained above, there is no religious activity here,
only factual presentation of the tenets of a religion for academic study. Absent
evidence of more direct involvement with a religious entity, a school does not
entangle itself religion simply by teaching it as part of a broader, balanced
curriculum, even if curriculum development or teaching could be considered a
“formal” state activity.
***
In sum, the curriculum and materials here survive scrutiny under each
of the three Lemon prongs. Accordingly, the Board did not violate the

any “level of interaction” between a school and a religious organization. Doe, 653 F.3d
at 288 (citation omitted).
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Establishment Clause. I will enter summary judgment in the Board’s favor on
Hilsenrath’s remaining nominal-damages claim.
III.

CONCLUSION
For the reasons set forth above, Defendants’ motion for summary

judgment is granted and Hilsenrath’s motion for summary judgment is denied.
To recap, Hilsenrath’s claims for injunctive and declaratory relief against all
Defendants fail for lack of standing, but her nominal-damages claims may
proceed. The nominal damages claims are properly asserted against the Board,
which is an entity with the capacity to be sued, and which is potentially liable
under a Monell theory. The claims are dismissed, however, as against the
District and the individual defendants. As to the remaining, nominal-damages
claim against the Board, summary judgment is granted, and the claim is
dismissed, because the curriculum and materials satisfy the Lemon test and do
not violate the Establishment Clause.
A separate order will issue.
Dated: November 12, 2020
/s/ Kevin McNulty
___________________________________
Hon. Kevin McNulty
United States District Judge

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