Religion & the Constitution
July 17, 2013
Professor Leora Harpaz
Final Examination
Question I
(Suggested time: 60 minutes) (50 out of 150 total exam points)
Springdale North High School, a public school within
the Springdale School District, used to have prayers recited by members
of the local clergy at home basketball games during a pre-game
ceremony. These prayers were eliminated in the wake of the Supreme
Court’s decision in Santa Fe Independent School District v. Doe
(casebook page 387). Since the Doe decision in 2000, no prayers have
been delivered during the pre-game ceremony.
In addition to the pre-game ceremony and the game
itself, home basketball games include a half-time show with
performances by the high school cheerleading squad and the school band.
The cheerleaders perform routines choreographed by their coach, Sue
Silver (SS), a member of the high school faculty. In addition to SS’s
routines, there is also one section of their performance where
individual cheerleaders or groups of cheerleaders are allowed to make
up their own freestyle routines. SS instituted this part of the
half-time show four years ago to allow each of the cheerleaders to
showcase their individual talents and creativity. This part of their
performance is very popular with the hometown crowd.
Two years ago, some cheerleaders began to bring
banners inscribed with Bible verses to use during their freestyle
performances. They typically hold up these banners and recite the
verses as part of their routine. Sample Bible banners are “I can do all
things through Christ who strengthens me” (Philippians 4:13) and “If
God is for us, who can be against us? (Romans 8:31).”
After the banners began to regularly appear at every
home game, their coach discussed the issue with Barry Barnes (BB), the
school principal. The principal inquired whether SS had requested that
the cheerleaders use the banners and whether she had done anything to
encourage or discourage the use of the banners. SS told him that she
had not requested the banners and had neither encouraged nor
discouraged their use. However, SS explained that the parts of routines
where the Bible verses on the banners are recited, often with the crowd
sitting in the bleachers joining in, take longer than the typical
freestyle routine. Therefore, she has allowed these Bible banner
routines to be somewhat longer than the time typically allocated to a
freestyle routine.
In addition, SS told BB that since all the
cheerleaders can seek reimbursement from the Cheerleaders Uniform Fund
(CUF) for their uniforms and props, like pom poms, hoops, and
megaphones, used in their freestyle routines, she has allowed
cheerleaders who use Bible banners to obtain reimbursement from the
fund for their Bible banners as well. The CUF was set up by the
Springdale School District. The district contributes a small amount of
money to the fund each year, but most of the money in the fund is
raised by the cheerleaders through activities like bake sales and
seeking private donations from their family and friends.
The principal sought guidance from the
Superintendent of the Springdale Schools on the banner issue, and the
Superintendent decided that there was no constitutional issue raised by
individual cheerleaders or groups of cheerleaders using the Bible
banners during their individual routines because the school had not
directed or encouraged their use.
Michael Morgan (MM), a Springdale resident,
homeowner, and taxpayer, regularly attends the basketball games. His
son graduated from Springdale North High School 3 years ago and was a
member of the basketball team. MM regularly attended the games while
his son was on the team and has continued to attend games since that
time. MM has complained to BB about the banners several times and has
stated that he will stop attending basketball games if the Bible
banners continue to be displayed. BB has told MM that he will not
prohibit the banners.
MM recently filed suit arguing that the banners are
a violation of the Establishment Clause. You are a law clerk to the
judge assigned to the case. The judge asks you to write an analysis of
the arguments that MM can make to argue that the banners violate the
Establishment Clause as well as the arguments the Springdale School
District can make to argue that they are not a violation of the
Establishment Clause.
Question II
(Suggested time: 60 minutes) (50 out of 150 total exam points)
This question consists of two parts. You must answer both parts. Each
part is a short essay question. Please try and keep your answers brief.
Part One (30 points)
The State of Stone provides government employees
with a state-funded health insurance plan. Under the plan, in addition
to funding traditional medical treatments, the State also funds
nontraditional or alternative forms of medical treatment. These include
homeopathy, naturopathy, osteopathy, chiropractic, and acupuncture.
Moreover, the State funds forms of healing that are based on religious
beliefs including faith healing, Christian Science treatment, prayer
rings, and other forms of faith-based healing. The broad coverage of
various types of treatments is both so that the State can avoid
disputes over which types of treatment are beneficial and which are not
as well as to avoid discriminating against employees who believe in
nontraditional and faith-based treatments. A suit has been filed by a
state taxpayer asserting that the State is violating the Establishment
Clause by paying for faith-based treatments. What result and why?
Part Two (20 points)
The City of Springdale owns and operates City Hall
Park, located in front of Springdale City Hall. Last December, Occupy
Springdale, which is affiliated with similar groups around the country,
requested and obtained a park permit to hold an overnight demonstration
in the park for 6 consecutive nights ending on December 10th to protest
the reduction of government aid to programs to assist the poor such as
homeless shelters and food banks. Shortly after the City granted a
permit to Occupy Springdale, a group called Occupy God sought a park
permit to use City Hall Park for an overnight demonstration that would
have taken place on 6 consecutive nights in December ending on December
26. Occupy God was interested in building a temporary homeless shelter
for a modern retelling of the story of Mary and Joseph in the manger.
The “creche” would have housed a homeless couple who was expecting
their first child and who were recently evicted from their home. The
City refused to grant Occupy God a permit on the ground that an
exclusively religious display in front of City Hall would associate the
City with a celebration of the religious aspects of Christmas and would
violate the Establishment Clause. Occupy God is suing the City for
violating its First Amendment rights. What result and why?
Question III
(Suggested time: 60 minutes) (50 out of 150 total exam points)
Springdale Central High School, a public school
within the Springdale School District, has an Academic Enrichment
Program (AEP). The AEP allows students to take up to two classes held
during non-school hours in off-site locations and to receive academic
credit to count toward their high school diploma for those classes when
appropriate. The school allows academic credit to be granted if “(1)
the content of the course provides educational enrichment to the
student; (2) the content of the course is not offered as part of the
regular high school curriculum; (3) the number of hours of instruction
and workload are at least the equivalent of a course offered at
Springdale Central High School; (4) the course is offered at an
accredited institution that has degree granting authority; (5) the
instructor has suitable academic credentials; and (6) the student
completes all required work in the course and receives a grade of C or
higher.”
The process for gaining approval for an AEP course
involves the student submitting information about the course and a
statement about how the course will enrich the student’s education.
Thereafter, using AEP criteria (1) through (5), the course is evaluated
by a Springdale Central guidance counselor who contacts the instructor,
obtains course materials, and sits in on several classes. Once the
course and instructor are approved, the student may enroll in the
course. Thereafter, other students may gain approval for the course
without the guidance counselor repeating the approval process. Once a
student has completed an approved course, the instructor submits a
grade and written evaluation of the student’s performance in the
course. Upon completion of the course with a grade of C or higher, the
student will receive academic credit.
Under this program, many students at Springdale
Central High School receive academic credit toward their high school
diploma for courses taken at a nearby community college on evenings and
weekends. This allows students to study subjects not offered as part of
the high school curriculum or to benefit from more advanced study in
subjects of great interest to them.
This year for the first time a student is seeking
academic credit under the AEP for religious instruction. Christy
Chambers (CC) is seeking academic credit for an afterschool course
called Christian Worldview. The course is a program of religious
instruction that is designed to “help students learn the basic tenets
of the Christian worldview,” and teach students “how they ought to live
as a result of what they have learned.” The course emphasizes the
conversion experience or being born again, the Bible as the ultimate
source of authority, and the need to engage in missionary work to
spread Christ’s teachings. The course is taught at Springdale Bible
School, a private, Evangelical Christian high school that is accredited
and has degree granting authority. The course instructor is Timothy
Trent, an ordained minister of the United Evangelical Church, and an
experienced teacher licensed to teach in both public and private
schools.
You are the attorney for the Springdale School
District. Jane Johnson (JJ), the principal of Springdale Central High
School, comes to you for legal advice. She is uncertain how to respond
to CC’s request for academic credit for the Christian Worldview course.
JJ asks you three related questions: (1) whether approving AEP credit
for the course will violate the Establishment Clause; (2) whether
refusing AEP credit for the course will violate the Establishment
Clause; and (3) whether refusing AEP credit for the course will violate
the Free Exercise Clause. She tells you that she has evaluated the
course based on the 5 criteria used to evaluate AEP courses and the
course satisfies standards (2) through (5). JJ is uncertain, however,
how to evaluate the course based on standard (1) which requires that
the course provide educational enrichment to the student. She does not
know how to define educational enrichment in the context of a course
that involves devotional and proselytizing content. However, JJ is
troubled by the idea that academic credit at Springdale Central High
School can be awarded for religion courses that involve proselytizing
for a set of beliefs rather than an objective inquiry into a
subject.
Please describe for the school principal the legal
arguments you would make on behalf of Springdale Central High School if
(1) the school decides to award academic credit for Christian Worldview
and is sued as a result on the ground that the award of academic credit
violates the Establishment Clause, and (2) the school refuses to award
academic credit for Christian Worldview and is sued as a result on the
grounds that the refusal to award academic credit violates both the
Establishment and Free Exercise Clauses. In addition to describing the
legal arguments, please provide JJ with advice as to what she should do
and why you recommend that particular course of conduct.
End of Examination