3rd Circuit backs school district’s policy limiting religious music

Wednesday, November 25, 2009

Editor's note: On Oct. 4, 2010, the U.S. Supreme Court refused to hear the case.

Children won't be singing religious songs during the holiday season in one
New Jersey school district.

The Philadelphia-based 3rd U.S. Circuit Court of Appeals yesterday upheld the
South Orange-Maplewood school district's ban on celebratory religious music,
reasoning that school officials can determine which songs are appropriate
according to constitutional guidelines to create a secular “inclusive

Michael Stratechuk, the father of two children in the New Jersey school
district, sued in 2004 in federal court, contending that the district’s policy
limiting religious music violated the First Amendment’s establishment clause and
infringed on the children’s free-speech right to receive information and

Stratechuk argued that school officials violated the establishment clause by
adopting a policy that constituted an official disapproval of religion. The
school district amended its policy after the lawsuit was filed to provide that
“performance of music with religious text is appropriate when doing so is an
outgrowth of the curriculum” but “musical performances shall not be celebrations
of particular religious, ethnic or cultural holidays.”

After a federal judge rejected Stratechuk’s challenge, he appealed to the 3rd
Circuit. Yesterday, a three-judge panel of the 3rd Circuit affirmed the lower
court’s decision.

The appeals panel applied the Lemon and endorsement tests to
Stratechuk’s establishment-clause challenge. The Lemon test — named after
the U.S. Supreme Court’s 1971 opinion Lemon
v. Kurtzman
— asks whether a government policy serves a religious or
secular purpose, whether it has the primary effect of advancing or inhibiting
religion and whether it leads to an “excessive entanglement” between church and
state. The endorsement test, formulated by Justice Sandra Day O’Connor in 1984
in her concurring opinion in Lynch
v. Donnelly,
asks whether a reasonable observer familiar with the
history of a government policy or program would view it as an endorsement of

With respect to Lemon’s “purpose” prong, the school district contended
that its policy had the purpose of avoiding government endorsement of religion
and preventing potential establishment-clause claims for promoting of religious
practices. Stratechuk countered that the school district’s avowed purpose was a
“sham” and cited decisions from other federal circuit courts that the playing of
religious music doesn’t violate the establishment clause.

The 3rd Circuit panel sided with the school district, reasoning that its
purpose of maintaining a position of neutrality toward religion and avoiding
claims of promoting religion was legitimate. The panel said in Stratechuk v. Board of
Education, South Orange-Maplewood School District
that “even if
performance of religious songs did not violate the Establishment Clause, it does
not follow that the goals underlying the School District’s desire to avoid a
potential Establishment Clause violation were disingenuous or

Addressing the “effects” prong of Lemon, the panel also sided with the
school district. Stratechuk had argued that the primary effect of the school
district’s policy was that it conveyed hostility toward religion. He cited as
evidence other parents’ many complaints about the policy. The appeals panel
wasn’t convinced, writing that “the constitutionality of a school board’s policy
toward religion cannot be decided by reference to popular opinion.” The primary
effect of the policy was advancing a position of neutrality, the panel

The panel then addressed the “entanglement” prong of Lemon, which many
courts fold into the “effects” prong. Here, the 3rd Circuit examined it
separately and agreed with the lower court that school officials must screen
various policies to ensure that they maintain church-state separation and that
such routine screening doesn’t cross the line into excessive entanglement.

In examining the endorsement test, the 3rd Circuit concluded that “the result
is same under the endorsement test as under the effects prong of the Lemon test
and our earlier conclusion that the School District’s policy does not exhibit
endorsement or hostility towards religion is equally applicable here.”

The panel then addressed Stratechuk’s other claim — that the school district
policy infringed on his children’s right to receive information and ideas.
Stratechuk noted the Supreme Court’s 1982 opinion in Board
of Education v. Pico,
in which the justices determined that removing
books from the shelves of school libraries because of a dislike for the ideas in
those books violated the First Amendment.

However, the New Jersey school district argued that the more appropriate
precedent was the Supreme Court’s 1988 opinion Hazelwood
School District v. Kuhlmeier,
in which the Court granted school
officials broad authority to impose restrictions on school-sponsored student
speech. Under Hazelwood, school officials can place limits on
school-sponsored student speech if their reasons are reasonably related to
legitimate educational concerns.

The federal judge considering the New Jersey case determined that the school
district’s policy was reasonably related to such educational concerns; the 3rd
Circuit panel agreed.

Robert Muise, Stratechuk’s attorney, told two New Jersey newspapers that he
would ask the full 3rd Circuit to rehear the case and might appeal to the U.S.
Supreme Court.

The Associated Press contributed to this report.

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