Koenick v. Felton

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JUDITH M. KOENICK,
Plaintiff-Appellant,
v.
REGINALD M. FELTON, President,
Board of Education of Montgomery
County; PAUL VANCE,
Superintendent of Schools,
Montgomery County Public
Schools,
No. 97-1935
Defendants-Appellees.
THE AMERICAN JEWISH CONGRESS;
NATIONAL COUNCIL ON ISLAMIC
AFFAIRS; FREEDOM FROM RELIGION
FOUNDATION; AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE;
AMERICANS FOR RELIGIOUS LIBERTY;
AMERICAN HUMANIST ASSOCIATION;
THE AMERICAN ETHICAL UNION,
Amici Curiae.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-96-3111-AW)
Argued: December 1, 1998
Decided: August 20, 1999
Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by published opinion. Judge Ervin wrote the opinion, in
which Judge Motz and Senior Judge Butzner joined.
_________________________________________________________________
COUNSEL
ARGUED: Eugene Roy Fidell, FELDESMAN, TUCKER, LEIFER,
FIDELL & BANK, Washington, D.C., for Appellant. Stuart Henry
Newberger, CROWELL & MORING, L.L.P., Washington, D.C., for
Amici Curiae. Roger Warren Titus, VENABLE, BAETJER & HOW-
ARD, L.L.P., Rockville, Maryland, for Appellees. ON BRIEF:
Dwight H. Sullivan, AMERICAN CIVIL LIBERTIES UNION OF
MARYLAND, Baltimore, Maryland; Arthur B. Spitzer, AMERICAN
CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL
AREA, Washington, D.C., for Appellant. Bradley S. Albert, CRO-
WELL & MORING, L.L.P., Washington, D.C.; Harvey Reiter, Marc
D. Stern, AMERICAN JEWISH CONGRESS, Washington, D.C.; G.
Arthur Robbins, MCNAMEE, HOSEA, JERNIGAN & KIM, P.A.,
Greenbelt, Maryland; Steven K. Green, AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE, Washington, D.C., for
Amici Curiae. Kevin B. Collins, VENABLE, BAETJER & HOW-
ARD, L.L.P., Rockville, Maryland, for Appellees.
_________________________________________________________________
OPINION
ERVIN, Circuit Judge:
Judith M. Koenick ("Koenick"), a former public school teacher,
filed this § 1983 action against the Board of Education of Montgom-
ery County, Maryland ("the Board") challenging the constitutionality
of a Maryland statute which provides for public school holidays on
the Friday before Easter through the Monday following. Koenick
argued that the holiday statute's enforcement amounted to an imper-
missible establishment of religion in violation of the First Amend-
ment's Establishment Clause.1 Both parties filed summary judgment
_________________________________________________________________
1 Just prior to oral argument, this Court was notified that Koenick was
no longer employed as a public school teacher in Montgomery County.
We find, therefore, that Koenick lacks standing to pursue her equal pro-
tection claim and do not address it herein.
2
motions in district court. The court awarded summary judgment in
favor of the Board and Koenick appealed. Because we agree with the
district court that this statute does not violate the Establishment
Clause, we affirm.
I.
Under Maryland law, public schools must create their annual
school calendar in accordance with Md. Code Ann., Educ. § 7-103
(1996). Subsection (c) of § 7-103 provides for public school holidays
on Thanksgiving, Christmas Eve through January 1, the Friday before
Easter through the Monday after, Memorial Day, and primary and
general election days.2
As authorized, the Board adds additional holidays to those listed in
§ 7-103(c), including Martin Luther King, Jr. Day, President's Day,
Independence Day, Labor Day, Yom Kippur, and Rosh Hashanah.
The Board decided to include Yom Kippur and Rosh Hashanah to the
list of holidays because high absenteeism among both teachers and
students on those days resulted in low instructional productivity and
increased costs for substitute teachers. The Board also builds into the
calendar an annual spring vacation by adding four more vacation days
to the beginning of or at the end of the statutory four-day break over
Easter weekend mandated by § 7-103(c)(1)(iii). In creating the annual
calendar, the Board attempts to schedule the ten-day spring vacation
so that it coincides with Passover to lower absenteeism, but that is not
always possible. The official school calendar indicates that from the
Friday before Easter to the Monday after Maryland public schools are
closed for "Easter."
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2 Section 7-103(c) provides in relevant part:
(c) Holidays. -- (1) The following days are public school holidays:
(i)Thanksgiving Day and the day after;
(ii)Christmas Eve and from then through January 1;
(iii)The Friday before Easter and from then through the Mon-
day after Easter;
(iv)Memorial Day; and
(v)Primary and general election days.
Md. Code Ann., Educ. § 7-103(c) (1996).
3
On October 3, 1996, Koenick filed this action pro se against the
President and Superintendent of the Board alleging that the Board's
recognition and enforcement of § 7-103(c)(1)(iii), which provides for
a school holiday from the Friday before Easter to the Monday after,
violated the Establishment Clause. A period of discovery followed
during which Koenick retained counsel. At the close of discovery,
Koenick moved to file an amended complaint and to add additional
State officials as defendants. The district court allowed the filing of
an amended complaint but denied her request to add defendants.
Additional discovery followed the filing of the amended complaint,
after which the parties filed cross-motions for summary judgment.
The district court granted summary judgment in favor of the Board,
denying Koenick's claims that § 7-103(c)(1)(iii) violated the Estab-
lishment Clause. Rejecting Koenick's argument that because § 7-
103(c)(1)(iii) facially prefers one religion over another, the Maryland
statute should be subject to strict scrutiny under Hernandez v.
Commissioner, 490 U.S. 680 (1989), the district court applied the
three-part test announced in Lemon v. Kurtzman , 403 U.S. 602 (1971)
("the Lemon test"). Under the Lemon test, the district court found the
statute constitutional because it had a secular purpose, its principal or
primary effect was not to advance or inhibit religion, and it did not
foster an excessive entanglement between church and state.
The district court acknowledged that the Supreme Court had
recently suggested other tests for analyzing the constitutionality of
statutes under the Establishment Clause and also that other Circuit
courts had found similar statutes unconstitutional, but declined to
apply the reasoning of these courts in this case. Koenick appealed the
ruling.
We review the district court's grant of summary judgment de novo.
See Brogan v. Holland, 105 F.3d 158, 161 (4th Cir. 1997). We must
affirm if the case presents no genuine issues of material fact and the
Board is entitled to a judgment as a matter of law. See Roe v. Doe,
28 F.3d 404, 406 (4th Cir. 1994). All reasonable inferences are to be
drawn in favor of the non-movant, Koenick. See id. at 407.
II.
Koenick alleges that § 7-103(c)(1)(iii) violates the Establishment
Clause of the First Amendment of the Constitution, as applied to the
4
states by the Fourteenth Amendment. The Establishment Clause pro-
vides that "Congress shall make no law respecting the establishment
of religion." U.S. Const. amend. I. To evaluate Koenick's claim,
therefore, we must venture into the often-dreaded and certainly murky
area of Establishment Clause jurisprudence. As an initial matter, how-
ever, we must determine whether Koenick has standing to bring this
suit.
A.
Just prior to oral argument, Koenick applied for retirement from
the Montgomery County Public School system. She requested that her
retirement pay commence on December 1, 1998, the exact date of oral
argument in this case. This Court was made aware of Koenick's
change in employment status in a letter from the Board's counsel
wherein the Board argued that this issue mooted Koenick's appeal
because she no longer had standing to file her appeal. In a response
letter, Koenick's counsel conceded that, without being a teacher,
Koenick lacked standing to bring her equal protection claim, but that
as a taxpayer and citizen of Montgomery County and the State of
Maryland she retained standing to pursue her Establishment Clause
claim.
Article III, § 2 of the Constitution requires that judicial resources
be spent only in the resolution of Cases or Controversies. Part of this
case-or-controversy hurdle requires that the litigants have standing to
sue or defend. See Arizonians for Official English v. Arizona, 520
U.S. 43, 64 (1997). To prove standing, a party must show "an inva-
sion of a legally protected interest" that is"concrete and particular-
ized." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). An
interest shared with the public at large is not sufficient; see id. at 573-
76, the litigant must allege a direct injury, such as being subjected to
an unwelcome intrusion of religion. See Suhre v. Haywood County,
131 F.3d 1083, 1086-87 (4th Cir. 1997).
The seminal taxpayer standing case is Doremus v. Board of Educ.,
342 U.S. 429 (1952), in which the Supreme Court explained that a
taxpayer has standing to challenge a statute when he is able to show
that he "has sustained or is immediately in danger of sustaining some
direct injury as a result of [the challenged statute's] enforcement." Id.
5
at 434 (citations omitted). Such a direct injury has been found when
the challenged statute involves the expenditure of state tax revenues.
See Cammack v. Waihee, 932 F.2d 765, 769 (9th Cir. 1991). This
principle has been interpreted to justify finding that a municipal tax-
payer has standing in cases where the litigant's only injury is the
alleged improper expenditure of municipal funds. See id. at 770
("[W]e conclude that municipal taxpayer standing simply requires the
`injury' of an allegedly improper expenditure of municipal funds. . . .").3
Applying this standard, Koenick has standing as a taxpayer in
Montgomery County. In her complaint, Koenick alleges that she is
injured by the expenditures of her tax revenues towards the paid holi-
day on the Friday before and the Monday after Easter for public
school employees. It is undisputed that these tax revenues fund the
public school system in the County and thereby fund the paid, statu-
tory holidays for school employees such as that required by § 7-
103(c)(1)(iii). Because Koenick is a taxpayer who indirectly bears the
burden of funding a paid public school holiday around Easter, we find
that she has standing to pursue her appeal.
B.
Having found that Koenick has standing to bring this Establish-
ment Clause claim, we turn our attention to the merits of her appeal.
There is little confusion over the general concept behind the Estab-
lishment Clause; that it "was intended to erect a wall of separation
between Church and State." Everson v. Board of Educ., 330 U.S. 1,
16 (1947) (citation omitted). There is much confusion, however,
about how to apply this broad principle in specific cases. Tradition-
ally, Establishment Clause cases have been evaluated using the
Lemon test set out in Lemon.4 In more recent Establishment Clause
_________________________________________________________________
3 Although they concerned the display of religious symbols in public
settings, in both Suhre v. Haywood County, 131 F.3d at 1086, and Smith
v. County of Albemarle, 895 F.2d 953, 955 (4th Cir. 1990), we applied
an even more permissive standard, finding that noneconomic or intangi-
ble injuries may suffice to render an Establishment Clause claim justicia-
ble. See Suhre, 131 F.3d at 1086; Smith , 895 F.2d at 955.
4 The Lemon test provides that:
First, the statute must have a secular legislative purpose; second,
6
cases, however, the Supreme Court has employed several different
tests presented as either glosses on or replacements for the Lemon test;5
therein lies the confusion as to the applicable standard.
In the instant case, Koenick argued that § 7-103(c)(1)(iii) created
a facially unconstitutional denominational preference and therefore
should be subjected to strict scrutiny. See Hernandez, 490 U.S. at 695
(ruling that "when it is claimed that a denominational preference
exists, the initial inquiry is whether the law facially differentiates
among religions. If no such facial preference exists, we proceed to
apply the customary three-pronged Establishment Clause inquiry
derived from Lemon v. Kurtzman.") (citations omitted).
The district court properly rejected the applicability of strict scru-
tiny in this case. Strict scrutiny in the Establishment Clause context
is to be used to evaluate only those statutes that facially discriminate
between religious denominations or between religion and non-
religion. See Hernandez, 490 U.S. at 695. See generally Barghout v.
Bureau of Kosher Meat and Food Control, 66 F.3d 1337, 1346-49
(4th Cir. 1995) (Luttig, J., concurring). For example, if § 7-
103(c)(1)(iii) provided for a holiday only for followers of the Chris-
tian faith on the days around Easter, it would, on its face, discriminate
between denominations and be subject to strict scrutiny. But it does
not. Instead, the statute provides an annual holiday for all Montgom-
ery County public school students from which all students benefit
equally and thereby does not facially discriminate against any denom-
ination. We find, therefore, that § 7-103(c)(1)(iii) does not include a
_________________________________________________________________
its principal or primary effect must be one that neither advances
nor inhibits religion . . . ; finally, the statute must not foster an
excessive government entanglement with religion.
Lemon, 403 U.S. at 612-13 (citation omitted).
5 See Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680,
695 (1989) (citing Larson v. Valente, 456 U.S. 228, 246 (1982), which
holds that facial denominational preferences are evaluated under strict
scrutiny); Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (endorsement
test); Lee v. Weisman, 505 U.S. 577, 592 (1992) (coercion test);
Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S.
819, 839-41 (1995) (neutrality test).
7
facial denominational preference and thus should not be subjected to
strict scrutiny.
Finding that the instant case does not trigger strict scrutiny is only
the beginning of the inquiry, however. The question remains as to
what standard or test should be applied here. Heeding our conclusion
in Barghout, that "until the Supreme Court overrules Lemon and pro-
vides an alternative analytical framework, this Court must rely on
Lemon in evaluating the constitutionality of legislation under the
Establishment Clause," 66 F.3d at 1343 n.11, the district court applied
the Lemon test. We agree.
We conclude that the more recent Supreme Court cases have not,
"by implication, overruled an earlier precedent," Agostini v. Felton,
521 U.S. 203, 237 (1997), and that the general principles we have
relied on to evaluate Establishment Clause claims have not substan-
tively changed since the Lemon line of cases was decided. See
Agostini, 521 U.S. at 222-23 ("To be sure, the general principles we
use to evaluate whether government aid violates the Establishment
Clause have not changed.").6 On that basis, we will continue to evalu-
ate Establishment Clause cases using the Lemon test. See Granzeier,
173 F.3d at 573 (finding the endorsement test was a clarification of
the second prong of the Lemon test and not a completely different
analysis); Bridenbaugh, 1999 WL 517169, at *2 (interpreting Agostini
as reaffirming the continued viability of the three-part Lemon test).
See generally Columbia Union College v. Clarke, 159 F.3d 151, 158-
59 (4th Cir. 1998) (citing Agostini for the proposition that the
_________________________________________________________________
6 In Agostini, the Court reaffirmed its commitment to evaluating Estab-
lishment Clause cases using the same factors considered under the
Lemon test. See id. at 222-23, 232. The only explicit shift was in recog-
nizing that the factors used "to assess whether an entanglement is exces-
sive are similar to the factors we use to examine effect." Id. at 232
(emphasis deleted). Agostini also suggests that in some contexts the
entanglement inquiry be considered an aspect of the second "effect"
prong. See id. at 232-35. Like our sister circuits, however, we believe
that in the present context the two inquiries are best considered sepa-
rately. See Bridenbaugh v. O'Bannon, No. 98-3058, 1999 WL 517169,
at *2 (7th Cir. July 21, 1999); Granzeier v. Middleton, 173 F.3d 568,
572-76 (6th Cir. 1999).
8
Supreme Court warned lower courts against finding that the Court had
implicitly overruled its prior precedent).
C.
In Lemon, the Supreme Court created a three-part test for determin-
ing whether a state action violates the Establishment Clause. It
required that the state action possess a secular purpose, that the
action's primary effect was not the advancement of religion, and that
it did not result in an excessive entanglement between church and
state. See Lemon, 403 U.S. at 612-13 (citation omitted). If a state
action violates even one of these three prongs, that state action is
unconstitutional. See North Carolina Civil Liberties Union Legal
Found. v. Constangy, 947 F.2d 1145, 1147 (4th Cir. 1991).
Three other circuits have considered the question of whether the
creation of a statutory holiday around Easter violates the Establish-
ment Clause. In Cammack, the Ninth Circuit reasoned that since Good
Friday has become secularized in Hawaii, the state could declare it a
holiday without violating the Establishment Clause. 932 F.2d at 769.
In Bridenbaugh, the Seventh Circuit examined an Indiana statute
declaring Good Friday a paid holiday for state employees. 1999 WL
517169. After finding that Indiana presented several legitimate secu-
lar purposes for the holiday, none of which had the effect of advanc-
ing religion, the court ruled the Good Friday holiday statute
constitutional. See id. at *7. Finally, in Granzeier, the Sixth Circuit
found that a statute closing various courts and administrative offices
on Good Friday was not unconstitutional because it was enacted for
the legitimate, secular purpose of giving state and county employees
the day off on a convenient and low traffic day. 173 F.3d at 574-76.
1.
To be constitutional, a state action must have a"clearly secular pur-
pose." Wallace v. Jaffree, 472 U.S. 38, 56 (1985). It need not, how-
ever, be entirely secular, see id., but if there is no evidence of a
legitimate, secular purpose, then the statute must fail. See Lynch, 465
U.S. at 690. We are "reluctan[t] to attribute unconstitutional motives
to the States, particularly when a plausible secular purpose for the
State's program may be discerned from the face of the statute,"
9
Mueller v. Allen, 463 U.S. 388, 394-95 (1983), but "it is required that
the statement of such purpose be sincere and not a sham." Edwards
v. Aguillard, 482 U.S. 578, 586-87 (1987). When determining
whether a statute retains a secular purpose, we look not to the purpose
of the statute when enacted, but at its contemporary purpose. See
McGowan v. Maryland, 366 U.S. 420, 431 (1961).
As we noted in Barghout, the "first prong[of the Lemon test] . . .
is a fairly low hurdle," 66 F.3d at 1345, one we believe § 7-103
clears. The Board contends that closing schools on the Friday before
and the Monday after Easter is necessary because of the high rate of
absenteeism expected on these days among students and teachers.
Such absences, it argues, disrupt the effectiveness of instruction and
require an increased monetary outlay for the hiring of substitute
teachers, wasting valuable and limited educational resources. Bolster-
ing its argument, the Board insists that this is the same reason it closes
schools on the Jewish holidays of Yom Kippur and Rosh Hashanah.
The district court was persuaded that § 7-103(c)(1)(iii) was sup-
ported by this contemporary, pragmatic, secular purpose and so are
we. The Board's desire to economize scarce educational resources
that are wasted when classes are held on days with a high rate of
absenteeism provides a plausible secular purpose for closing school
for a four day holiday around Easter. Therefore, we are persuaded that
§ 7-103 has a contemporary and legitimate secular purpose sufficient
to satisfy the first prong of the Lemon test.
Koenick argued that although there was actual evidence supporting
the Board's decision to close school for the aforementioned reasons
on the two Jewish holidays, there was no comparable evidence to sup-
port closing around Easter. She suggested that a simple survey could
be taken to show how many students intend to be absent on these
days; without which Koenick argued, there is no evidence that such
factors justify the granting of this holiday.
We find this suggestion untenable. This statutory four-day holiday
around Easter has been a part of the Montgomery County Public
School Calendar for 130 years. It has become part of the school com-
munity's expectations and plans, and because it is also the anchor
around which the longer spring vacation is scheduled, such a survey
10
would probably yield the exact results the Board asserts, if for no
other reason than that people expect to have these days off and have
planned accordingly. We do not believe that the Board should be
required to conduct such a survey to show that high absenteeism and
decreased instructional effectiveness would result from holding
classes on the days surrounding Easter weekend. We are persuaded
that the four-day holiday around Easter is supported by a pragmatic,
legitimate, secular purpose.7
2.
Having found that § 7-103(c)(1)(iii) has a secular purpose and sat-
isfies the first prong of the Lemon test, we consider whether the stat-
ute satisfies the second prong. With this prong, we must determine if
§ 7-103(c)(1)(iii) has the principal or primary effect of advancing or
inhibiting religion. The Government may, through speech and actions,
recognize religion or a religious holiday, see Lynch, 465 U.S. at 676,
_________________________________________________________________
7 We note that we find nothing in the record or otherwise that indicates
that Easter, the holiest day in all of Christendom, is, as the district court
concluded, "a highly secularized holiday." The anecdotal evidence in the
record before us concerning the secularization of Easter proves nothing.
Neither Koenick's reliance on the deeply religious aspects of Easter for
practicing Christians nor the Board's recitation of the many seemingly
secular events surrounding the day evidence the level of secularization
of the holiday. See Lynch v. Donnelly, 465 U.S. 668, 675, 685-86 (1984)
(Christmas does not have to lose its religious significance for believers
in order to be considered a secular holiday); County of Allegheny v.
ACLU, 492 U.S. 573, 633 (1980) (O'Connor, J., concurring) ("The Eas-
ter holiday celebrated by Christians may be accompanied by certain `sec-
ular aspects' such as Easter bunnies and Easter egg hunts; but it is
nevertheless a religious holiday."). What is necessary to prove Easter's
secularization is evidence of the numbers of persons who observe the
holiday in a purely secular way -- that is, the number of persons for
whom the holiday has no religious significance but who nonetheless cel-
ebrate the occasion in some manner. See, e.g., County of Allegheny, 492
U.S. 585, 616-17 (noting that many Americans have a Christmas tree in
their home or otherwise celebrate Christmas or Chanukah "without
regard to [their] religious significance"). This record is devoid of such
evidence. Accordingly, unlike the district court, we do not base our hold-
ing on a finding that Easter is a secular holiday.
11
but it may not overtly endorse a religion, or religion in general. See
Capitol Square Review and Advisory Bd. v. Pinette , 515 U.S. 753,
764-65 (1995). A statute whose primary effect is to advance a secular
purpose, rather than a religious one, is still constitutional even if it
conveys an incidental benefit to those of a specific religion. See
McGowan, 366 U.S. at 445; Lynch, 465 U.S. at 683 ("[N]ot every law
that confers an indirect, remote, or incidental benefit upon [religion]
is, for that reason alone, constitutionally invalid.") (citations omitted).
Koenick argued that by establishing a four-day holiday around Easter,
the statute has the effect of advancing and endorsing Christianity over
other faiths. We cannot agree. Section 7-103 provides a four-day holi-
day for all of the Montgomery County public school children and
teachers, not just followers of Christianity. By expressing no prefer-
ence toward the practitioners of any one faith over any other, the four-
day holiday around Easter does not endorse or advance a particular
religion or religion generally. Section 7-103(c)(1)(iii) does not grant
an added benefit to members of one faith that it does not grant to
everyone, but rather treats all of the affected parties the same with
respect to religion, and thereby does not impermissibly advance reli-
gion.
Further, by simply giving students and teachers a school holiday
around Easter, § 7-103 does not mention or imply that the holiday is
to be spent attending religious services in recognition of this Christian
holy day. The statute merely gives people the days off to spend as
they like. Although the statute makes it possible for students and
teachers to attend services around Easter, it in no way promotes or
advances this cause. Similarly, the Board has a policy of granting stu-
dents and teachers excused absences to attend religious services in
recognition of holy days in their own religions; however, by doing so
there is no insinuation that such a policy advances any religion over
another. See Granzeier, 173 F.3d at 575-76 (finding that when school
districts with a large Jewish population close school for Jewish holy
days it does not result in the impermissible establishment of the Jew-
ish religion but rather constitutes a secular recognition of the practi-
calities of school attendance).
Koenick also argued that, by making the Friday before and the
Monday after Easter a holiday, § 7-103 makes it easier for Christians
12
to practice their faith than for others, thereby advancing Christianity.
We disagree.
The Supreme Court has stated repeatedly that a statute does not
automatically violate the Establishment Clause simply because it con-
fers an incidental benefit upon religion. See Lynch, 465 U.S. at 683.
Koenick is essentially arguing that followers of the Christian faith
receive an incidental benefit because § 7-103 makes their observance
of Good Friday easier, and disregarding the fact that all of the other
students benefit equally from the four-day holiday. As stated by the
Court, that is not enough to render § 7-103 invalid on grounds that it
impermissibly advances religion. Because all Montgomery County
students and teachers benefit equally from the four-day holiday and
because the statute does not encourage or require students to attend
religious services, we do not believe that § 7-103 runs afoul of the
second prong of the Lemon test.
3.
Finally, to satisfy the third prong of the Lemon test we must deter-
mine whether this statute leads to an "excessive government entangle-
ment with religion." Lemon, 403 U.S. at 613. The Supreme Court has
held that "[e]ntanglement is a question of kind and degree," Lynch,
465 U.S. at 684, and because some interaction between church and
state is inevitable, the Supreme Court has reaffirmed that the
"[e]ntanglement must be `excessive' before it runs afoul of the Estab-
lishment Clause." Agostini, 521 U.S. at 233.
In the past, the Supreme Court has found excessive entanglement
in cases involving a state salary supplement to teachers in parochial
schools. See Lemon, 403 U.S. at 615-22. In contrast, in Agostini, the
Court found that a federally funded program where public school
teachers provide remedial instruction to children in parochial schools
on a neutral basis did not result in an excessive entanglement of gov-
ernment with religion. 521 U.S. at 233-35. See also Lynch, 465 U.S.
at 684 (finding that because no city money was spent to maintain a
challenged creche display, and no contact between the city and the
church was required, there was no impermissible enduring entangle-
ment of church and state).
13
Koenick argued that § 7-103(c)(1)(iii) implicitly involves the
Board in religious matters by requiring it to participate in an ongoing,
intra-faith controversy over the actual date on which Easter is to be
celebrated annually. Koenick reasons that, by enforcing § 7-
103(c)(1)(iii), the Board has become embroiled in a religious contro-
versy between the Roman Catholic and Protestant Christian denomi-
nations and the various Eastern Orthodox denominations who
celebrate Easter on different days; she insists that because the statute
does not define Easter, every year the Board has to calculate when the
holiday occurs and that determination constitutes an excessive entan-
glement. We disagree.
The Board showed that it consults commercially printed calendars
to determine the date of Easter each year. This task certainly causes
the Board to interact with religion, but it does not constitute an exces-
sive entanglement. The Board does not have to consult with the Cath-
olic or Protestant Churches to determine the date of Easter each year.
Nor is it required to be involved in any church-related activities or
provide any funding for churches or religious events. In Agostini, the
Court ruled that even programs where public school teachers were
paid with federal funds to teach disadvantaged children in parochial
schools did not cause an excessive entanglement between church and
state. See 521 U.S. at 234-35. Given the Agostini standard, and the
lack of evidence that § 7-103(c)(1)(iii) creates any entanglement
between the Board and any religion, we find that the provision of a
four-day holiday around Easter does not cause the Board to become
impermissibly and excessively entangled with religion.
III.
In summary, the Board's recognition and enforcement of § 7-103
does not run afoul of any of the factors set out in the Lemon test: It
is supported by a pragmatic, legitimate, secular purpose, it does not
advance or inhibit religion, and it does not result in an excessive
entanglement with religion.
For the foregoing reasons, we agree that Md. Code Ann., Educ.
§ 7-103(c)(1)(iii) does not violate the Establishment Clause of the
First Amendment. The judgment of the district court is thereby
AFFIRMED.
14