The opinion of the court was delivered by: CHARLES SIFTON, Senior District Judge
MEMORANDUM DECISION AND ORDER
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
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
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:
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
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
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
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
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
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
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.
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
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.
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
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 CLAIM
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 ...