Summary by Ruby Kumar-Thompson

After appearing on Tucker Carlson and at a school board meeting in 2017 to object to instruction designed to teach students a comparative lesson about the religion of Islam during a unit on the Middle East in a 7th grade social studies class and in which Hinduism and Buddhism were also comparatively studied during a unit on Asia, Chatham mother Libby Hilsenrath had sued the School District of the Chathams on behalf of her then-minor son. Represented by the Thomas More Law Center, her lawsuit contended that that the District and its employees violated the Establishment clause of the First Amendment with the use of its 6th grade social studies curriculum to endorse the religion of Islam over all other religions and by using certain supplemental instructional aids containing proselytizing statements in order to indoctrinate the students in the religion of Islam.  The District Court originally dismissed the claim in June 2021 by utilizing the well known test first set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971) which asks three questions with respect to the challenged government practice: 1) if it has a secular purpose; 2) if its principal or primary effect neither advances nor inhibits religion and 3) if it does not create an excessive entanglement of the government with religion. Id. at 612-13.  Hilsenrath appealed the dismissal to the Third Circuit.

While the appeal was pending in the Third Circuit, the United States Supreme Court issued its ruling on June 27, 2022 in Kennedy v. Bremerton School District, in which the Court dispensed with the Lemon “one size fits all” test for resolving First Amendment disputes in a school setting.  Instead, the Court focused on analyzing whether there was actual coercion of the students participating in religious activity, such as kneeling and praying, that was involved in the Kennedy case.  The Third Circuit then gave Ms. Hilsenrath’s claim a second life by vacating the original grant of summary judgment and remanding the case back to the District Court to be considered in light of the ruling in Kennedy.

Upon being requested to brief the impact of Kennedy on Plaintiff’s Establishment Clause challenge to the curriculum, the School District of the Chathams had argued that the claim must be analyzed both in light of the actual coercive effect of the challenged practice on the students and under the historical litmus test articulated by the Supreme Court to apply in two recent decisions, namely in Town of Greece v. Galloway, 572 U.S. 565 (2014) and the May 22, 2022 ruling in Shurtleff v. City of Boston.  In Shurtleff, Justice Gorsuch had written in his concurrence that all Establishment Clause challenges should be resolved by reference to the Constitution’s original meaning at the time of its adoption and as the Court had held in Town of Greece v. Galloway, 572 U.S. 565, 577 (2014) to be dependent upon whether “government’s conduct “accords with history and faithfully reflects the understanding of the Founding Fathers.”  Thus, according to Justice Gorsuch, is “the right place to look for guidance” in ensuring that government does not violate the First Amendment’s prohibition against establishment of religion lies in early and long-standing “historical practices and understandings.”

The School District of the Chathams further argued that what this means is that the Establishment Clause is not historically violated unless, according to Justice Gorsuch, the government action at issue involves either actual coercion or forms of coercion possessing the following hallmarks: 1) exertion of governmental control over the doctrine and personnel of the established church, 2) government mandated attendance in the established church and punishment of people for failing to participate, 3) punishment of dissenting churches and individuals for their religious exercise, 4) restriction of political participation by dissenters, 5) providing financial support in a manner that preferred the established denomination over other churches, and 6) use of established church to carry out certain civil functions, often by a monopoly.  According to Justice Gorsuch’s concurrence in Shurtleff, these particular historical hallmarks of religious coercion are necessary because “[o]ur Constitution was not designed to erase religion from American life; it was designed to ensure ‘respect and tolerance.’”  In this respect, the School District argued that since historically, religious references permeate almost every aspect of education– from literature to history— Plaintiff was unable to establish that religious references in the classroom vis-a-vis a private third party’s expression in a video or a worksheet containing the Shahada establishes any particular religion by a public school curriculum designed to teach about how religion impacts the daily life and culture of people living in a particular region of the world.

On October 17, 2022, the District Court adopted these arguments in its totality and again granted summary judgment to the School District of the Chathams because there was no evidence of coercion to participate in any religion or religious activity and none of the historical hallmarks of religious coercion were present in the manner in which the curriculum and the topic of Islam was presented to the students.  This is a big win for the school district’s right to academic freedom under the First Amendment and its ability to be protected for curricular decisions that are made about how and what to teach students in a classroom so long as those lessons do not run afoul of the Establishment Clause.