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February 18, 2004.

Andrea Skoros, individually, and as next friend of Nicholas and Christos Tine, Plaintiffs, -against- City of New York et alia, Defendants

The opinion of the court was delivered by: CHARLES SIFTON, Senior District Judge


This is a civil rights action brought under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983 challenging the holiday displays policy of the New York City public schools. The action is brought by Andrea Skoros individually and as next friend of Nicholas and Christos Tine, her minor sons. Defendants include the City of New York (the "City"), Joel I. Klein, in his official capacity as Chancellor of the New York City Department of Education ("DOE"), Page 2 and Sonya Lupion, individually and in her official capacity as principal of the Edith K. Bergtraum School. Plaintiffs seek declaratory and injunctive relief and damages.

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, which authorizes jurisdiction over civil actions arising under federal law, and 28 U.S.C. § 1343(3), which authorizes jurisdiction over civil actions arising under 42 U.S.C. § 1983. Both sides initially cross-moved for summary judgment, and the plaintiffs moved in the alternative for a preliminary injunction. On December 4, 2003, the parties appeared before the undersigned and agreed to withdraw their motions for summary judgment and to present the matter to the Court for decision as a bench trial on the basis of the papers previously submitted in connection with the cross-motions, supplemented by any additional documentary or testimonial evidence either side might choose to present.*fn1 I thereupon ordered a consolidation of the preliminary injunction hearing with the bench trial, pursuant to Rule 65 of the Federal Rules of Civil Procedure,*fn2 and on December 16, 2003, the matter was taken on submission. For the following reasons, I conclude that the Page 3 New York City DOE holiday displays policy does not violate the United States Constitution, and the complaint is, accordingly, dismissed. What follows sets forth the findings of fact and conclusions of law on which this determination is based, as required by Rule 52(a) of the Federal Rules of Civil Procedure.


  Plaintiff Andrea Skoros is, as mentioned, the mother of Christos and Nicholas Tine. Skoros is Roman Catholic and is raising her sons in the Roman Catholic faith. During the 2001/2002 school year, Nicholas was a third-grade student in New York City Public School 165, the Edith K. Bergtraum School ("P.S. 165"), where defendant Sonya Lupion was and continues to be principal. The following year, Nicholas attended fourth grade at P.S. 169. During the 2002/2003 school year, Christos attended second grade at P.S. 184. Currently, Christos is in the third-grade class at P.S. 184, and Nicholas is in the fifth-grade class at P.S. 169.

  In November 2001, the General Counsel to the Chancellor of the DOE issued a memorandum to all DOE superintendents and principals regarding holiday displays (the "Holiday Displays memorandum"). The Holiday Displays memorandum sets forth guidelines for school officials to follow with respect to the display of holiday, cultural, and seasonal symbols in the New York City public schools. The November 2001 memorandum, which was redistributed unchanged in November 2002, states: Page 4

New York City is a diverse multi-cultural community. It is our responsibility as educators to foster mutual understanding and respect for the many beliefs and customs stemming from our community's religious, racial, ethnic and cultural heritage. In furtherance of this goal, we must be cognizant of and sensitive to the special significance of seasonal observances and religious holidays. At the same time, we must be mindful that the Constitution prohibits a school system from endorsing or promoting a particular religion or belief system.
The memorandum provides the following guidelines concerning the display of cultural and holiday symbols:
1. The display of secular holiday symbol decorations is permitted. Such symbols include, but are not limited to, Christmas trees, Menorahs, and the Star and Crescent.
2. Holiday displays shall not appear to promote or celebrate any single religion or holiday. Therefore, any symbol or decoration which may be used must be displayed simultaneously with other symbols or decorations reflecting different beliefs or customs.
3. All holiday displays should be temporary in nature.
4. The primary purpose of all displays shall be to promote the goal of fostering understanding and respect for the rights of all individuals regarding their beliefs, values and customs.
(Joint Stip. of Facts, Exs. 1, 2) (emphasis in original).*fn3

  During both the 2001/2002 and 2002/2003 school years, representatives from the Catholic League for Religious and Civil Rights requested that school officials in the DOE allow the Page 5 inclusion of a creche*fn4 in the school seasonal displays. School officials denied the request, pursuant to the Holiday Displays memorandum. (See Joint Stip. of Facts, Exs. 7-15; Skoros Decl. ¶ 8.) In addition, in December 2002 Ms. Skoros inquired by letter to Christos' teacher what religious symbols the children would be coloring for Christmas. (See Skoros Supp. Decl. ¶ 3; Dahan Decl. ¶¶ 10-11, Ex. B.) Christos' teacher, Mrs. Dahan, replied by describing the different Christmas symbols the children had been working on, indicated they would be having a party to celebrate the holiday, and included a copy of the DOE Holiday Displays memorandum. (See id.)

  Both sides agree that, as interpreted and implemented by the DOE, the Holiday Displays memorandum does not permit the public display of the creche by school officials alone or as part of a school-authorized holiday or seasonal display in the public schools within the DOE. (See Joint Stip. of Facts ¶ 13.) The holidays to which the DOE memorandum applies include Ramadan, Chanukah, Kwanzaa, and Christmas, which coincide more or less Page 6 with the winter solstice and with a winter vacation during which the public schools are closed.

  The parties jointly stipulate that the holiday display in the lobby of P.S. 165 in 2001 included a menorah, Christmas tree, star and crescent, and other holiday symbols. (See Joint Stip. of Facts ¶ 22.) The pictures of the display in P.S. 184 in 2002, provided in the joint stipulation of facts, show the front entrance holiday display including a festively decorated Christmas tree and a table adjacent to the tree with several dreidels*fn5 and three paper menorahs, one with a sign stating "Happy Hanukah." (See Joint Stip. of Facts, Exs. 16, 19.) In addition, five dreidels and two kinaras*fn6 apparently drawn by students are displayed on the walls next to the Christmas tree. (See id.) Pictures of the back entrance to P.S. 184 depict student artwork affixed to the walls, including two snowflakes, six Christmas wreaths with student written work, four dreidels, and one menorah. (See id., Exs. 17, 18, 20.) Pictures of Christos' classroom in P.S. 184 in December 2002 show a calendar representing the month of December with snowmen, Christmas trees, dreidels, and Santa in his sleigh pulled by reindeers. (See id., Ex. 21.) Hanging by clothespins from a line strung across the Page 7 classroom are student-created, three-dimensional paper Christmas wreaths and dreidels and at least one drawing of a kinara. (See id., Exs. 21, 22, 25, 26.) Affixed to tables and chairs in the classroom are student-created stockings, with a name on each, presumably the students' names. (See id., Exs. 23, 24.) There is also a paper wreath made of alternating snowmen and Christmas trees topped with the Star of Bethlehem affixed to a wall, as well as a display of snowmen under "A Winter Wonderland" sign. (See id., Exs. 23, 24, 27.)

  The joint stipulation of facts also includes pictures of the holiday images present in the hallways, classrooms, and the administrative office of P.S. 169 in December 2002. Thirteen photographs of the holiday symbols displayed around P.S. 169 are included, displaying the festive nature of the holiday display, not to mention the creative flare of the students, teachers, and administrators. Included among the imagery are reindeers made from small brown bags beneath a "Songs, Symbol, Signs of the Season" sign; three-dimensional paper dreidels; Christmas trees topped with the Star of Bethlehem, candles, snowmen, stars, paper and stuffed teddy bears surrounding a card describing a book entitled "The Chanukah Guest"; paper menorahs, paper Christmas trees, decorated paper Christmas wreaths and bells, drawings of Kwanzaa kinaras, gingerbread men cutouts surrounding a book entitled "The Gingerbread Baby," and a Christmas tree made of cutout hand tracings colored green and covered with Christmas decorations; a table-top artificial Christmas tree next to an Page 8 electric menorah; images of Santa Claus; candy canes, more paper-bag reindeer with cards inscribed with the verses to "Rudolph the Red-Nosed Reindeer"; a snowman atop a mound of packages wrapped as Christmas presents; cotton-ball snowmen; a sign reading "Happy Holidays" and another reading "Let it Snow." (See id., Exs. 28-40.) In addition, a bulletin board in Nicholas' classroom displayed cards describing Kwanzaa, Christmas, Ramadan, and Chanukah. (See Homer Decl. ¶ 4.) Ramadan is described in one card as follows:
Ramadan, the ninth month of the Muslim calendar, is a holy month for Muslims, believers in the religion Islam. During Ramadan, Muslims fast (take no food or drink) from dawn to sunset. It is a very spiritual time for Muslims. They arise early for a pre-dawn meal. At the end of the day, the fast is broken by taking the lftar meal, often with friends or family invited into one another's homes. When the new moon appears and the month of Ramadan is over, Muslims celebrate a joyous holiday called Eid-ul-Fitr (Festival of Fast-Breaking). They dress in their best clothing for prayers at the mosque and celebrate with family and friends.
(Homer Decl., Ex. A.) The Chanukah card states:
Hanukkah is celebrated by Jews in remembrance of a great victory, which won them the right to practice their religion. Also called the Festival of Lights, Hanukkah lasts for eight days because the oil in the Hanukkah story lasted that long. Candles are lit each evening during the eight days of Hanukkah. The candle holder is called a menorah. It holds eight candles and one servant candle, which is used to light the others-one more candle each night of Hanukkah. Some children receive gifts on each of the eight nights of Hanukkah. They play dreidel games and enjoy special Hanukkah foods.
(Homer Decl., Ex. A.) The card describing Kwanzaa states:

  Kwanzaa is the holiday when African Americans celebrate their cultural heritage. It was created in 1966 by Dr. Page 9 Maulana Karenga, an African who wanted his people to have a special time to celebrate and learn about their cultural origins. Kwanzaa is celebrated from December 26 through January 1. Families and friends gather to remember their ancestors and to enjoy African music, dancing, poetry, and foods. The holiday has seven days, seven symbols, and seven principles. The principles correspond to the seven days of the celebration and serve as guides for daily living.

 (Homer Decl., Ex. A.) The Christmas card states:
Christmas, December 25, is the Christian holiday that celebrates the birth of Jesus Christ. This holy time is marked by Nativity scenes, caroling, and church services where Christians hear again the story of the birth of the baby Jesus. Christmas includes many festive customs such as decorating homes and evergreen trees with colored lights, bright ribbons, and shining ornaments. People hang stockings by the fireplace, send Christmas cards to friends near and far, and wrap carefully chosen gifts for their loved ones. The jolly figure of Santa Claus is the bringer of gifts in this happy season.
(Homer Decl., Ex. A.)

  Plaintiffs further allege that, during the winter holiday season, Nicholas and Christos were "directed" to make menorahs and thereby "directed to engage in a sort of mock religious practice of Jews." (Pls. Brief at 27-28; see Skoros Decl. ¶ 10; Skoros Supp. Decl. ¶ 2.) Plaintiffs also allege that Nicholas was taught about the story of Chanukah and its origin but not about Christmas and its origin. (See Skoros Decl. ¶ 10; Skoros Supp. Decl. ¶ 4.) However, based on all of the evidence submitted concerning the implementation of the holiday displays policy at Nicholas' and Christos' schools including the declarations of Nicholas' and Christos' teachers, I conclude that the Tine children were not in fact "directed" to make menorahs Page 10 and voluntarily colored menorahs as part of their seasonal art projects. (See Baumgardt Decl. ¶ 3; Crawley-Soliman Decl. ¶ 3; Homer Decl. ¶¶ 3-7; Dahan Decl. ¶¶ 4-8; Pantelis Decl. ¶¶ 3-6.) In addition, I conclude on the same basis that, in the creation of such holiday displays, the children were taught about the origins of each of the holidays celebrated, including Kwanzaa, Chanukah, Ramadan, and Christmas. (See Homer Decl. ¶¶ 3-7; Dahan Decl. ¶¶ 4-8.)


  Plaintiffs allege that the DOE's policy regarding holiday displays in the public schools on its face and as applied violates the Establishment Clause, plaintiffs' right to free exercise of religion, and plaintiff Skoros' right to control the religious upbringing and education of her children. Plaintiffs contend that the menorah and the star and crescent are religious symbols and that their inclusion, absent the inclusion of the creche, impermissibly endorses Judaism and Islam at the expense of Christianity. In addition, plaintiff Skoros contends that her children, both minor students in the New York City public schools, when provided with coloring books including the story of Chanukah and the image of a menorah and when exposed to the holiday displays in the entrances, hallways, and classrooms of their schools, were coerced to accept Judaism and Islam at the expense of their Catholic beliefs.

  In response, defendants argue that the DOE guidelines concerning holiday displays do not promote any religion but Page 11 rather serve the secular, educational purpose of promoting cultural understanding. Specifically, the City takes the position that the menorah and star and crescent are holiday symbols with secular dimensions which, when displayed with other secular symbols of the holidays, serve the secular educational purpose of promoting cultural understanding while avoiding the promotion or endorsement of any particular religious faith. The creche, the City argues, is a religious symbol, the inclusion of which would, under all the circumstances, bring about exactly the kind of constitutional harms that plaintiffs seek to prevent.


  Establishment Clause law in the Supreme Court with respect to government-sponsored displays of religious symbols may perhaps best be described as an on-going evolutionary process of fitting recognized precedents to developing ...

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