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Decision No. 14,786

Appeal of DONNA CAYOT, on behalf of her son ERIC BRYANT, from action of the Board of Education of the Somers Central School District regarding the singing of "God Bless America" at a student assembly.

Decision No. 14,786

(August 22, 2002)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the action of the Board of Education of the Somers Central School District ("respondent") permitting school personnel of the Somers Intermediate School to call a special assembly of the student body and lead students in singing "God Bless America." The appeal must be dismissed.

Petitioner"s son attended the fourth grade at the Somers Intermediate School in Westchester County during the 2001-2002 school year. On Friday, September 14, 2001, in response to the terrorist attacks of Tuesday, September 11, 2001, and in an effort to bring together the Somers Intermediate School community, a special assembly of the student body was arranged by school personnel who led students in singing the song "God Bless America." Each student was handed a sheet of paper containing the following words:

GOD BLESS AMERICA

While the storm clouds gather

Far across the sea,

Let us swear allegiance

To a land that"s free;

Let us all be grateful

For a land so fair,

As we raise our voices

In a solemn prayer.

God bless America,

Land that I love,

Stand beside her and guide her

Thru the night with a light from

above;

From the mountains, to the prairies,

To the oceans white with foam,

God bless America

My home sweet home.

Irving Berlin

On Monday, September 17, 2001, petitioner telephoned the principal of the intermediate school to complain that "God Bless America" should not be used in student assemblies because its words can be interpreted as a prayer. Later that day, the principal called petitioner"s son into his office to assure him that the song, "God Bless America" was not a prayer, and to inform the student how he could be excused from participating in future assemblies which he finds objectionable on religious grounds.

In a letter to the principal dated September 20, 2001, petitioner requested an apology to her son and herself, as well as an assurance that "God Bless America" would not be sung at future student assemblies. Respondent"s superintendent of schools responded to petitioner in a letter dated September 24, 2001 in which he indicated that he fully supported the principal"s actions and that no apology would be forthcoming. Petitioner telephoned respondent"s president on October 8, 2001, to request enforcement of the Establishment Clause of the U.S. Constitution and U.S. Supreme Court decisions forbidding school-led prayer. The board president responded by supporting the superintendent"s position. Petitioner commenced this appeal on October 11, 2001. Petitioner"s request for interim relief was denied on October 26, 2001.

Petitioner seeks an order declaring respondent"s actions to be in violation of the U.S. Constitution and contrary to the values and direction of the State Education Department; prohibiting the singing of "God Bless America" at school assemblies; and requiring an apology from respondent.

Respondent denies that the song "God Bless America" is a prayer and that its use at student assemblies violates the U.S. Constitution. Respondent contends that the purpose of singing "God Bless America" at the student assembly on September 14, 2001 was to express patriotism and mutual concern in response to the events of September 11, 2001. Respondent argues that the song"s words were appropriate in light of the events of September 11 because they refer to the United States in danger, and evoke patriotism and allegiance to the Country for its preservation. Respondent further contends that students, including petitioner"s son, were not compelled to recite the song"s words or to participate in the assembly.

Petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Wendy and Robert L., 39 Ed Dept Rep 224, Decision No. 14,222; Appeal of Logan, 38 id. 694, Decision No. 14,120; Appeal of Catherine B., 37 id. 34, Decision No. 13,797). On the record before me, I find that petitioner has failed to demonstrate a clear legal right to an order prohibiting the singing of "God Bless America" at school assemblies. Petitioner has not established facts supporting her claim that her son was subjected to a coercive religious practice in violation of the United States Constitution.

The Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion...." It is through the Fourteenth Amendment that the Establishment Clause applies to the States and school districts. In Lemon v. Kurtzman, 403 U.S. 602 (1971), the U.S. Supreme Court set out the following three-pronged test to determine whether a governmental practice is consistent with the Establishment Clause: (1) does it have a secular purpose? (2) does it have a principal or primary effect that neither advances nor inhibits religion? and (3) does it foster an excessive government entanglement with religion? The Lemon test, as modified by Agostini v. Felton, 521 U.S. 203 (1997) and Mitchell v. Helms, 530 U.S. 793 (2000) and applied most recently in Zelman v. Simmons-Harris, __ U.S. __, 122 S. Ct. 805 (2002), combines the third prong analysis with the second in determining the effect of the governmental practice.

With regard to the first prong, the record in this case indicates that the special assembly was held on September 14 for the secular purpose of bringing the school community together and the students were led in singing the song "God Bless America" for the secular purpose of expressing patriotism and mutual concern. Petitioner has not demonstrated that respondent"s actual purpose was to endorse or disapprove of religion or to advance religious views (See, Edwards v. Aguillard, 482 U.S. 578, 585 [1987]).

For the second part of the test, petitioner has not established objectively that a reasonable observer would find the September 14 assembly had the effect of endorsing religion (See, County of Allegheny v. ACLU, 492 U.S. 573 [1989]). I find that an objective observer would view the singing of "God Bless America" in the same manner as "The Star Spangled Banner," national patriotic anthems sung frequently after September 11, 2001 in a display of patriotism.

Neither has petitioner established that her son was coerced to support or participate in religion or its exercise (Santa Fe Independent School District v. Doe, 530 U.S. 290 [2000]; Lee v. Weisman, 505 U.S. 577 [1992]). The record shows that petitioner"s son was assured that "God Bless America" is not a prayer and that his attendance was not compulsory at an assembly to which he had an objection. In this instance, no subtle coercive pressure was exerted on petitioner"s son because he was offered a real alternative to avoid the fact or appearance of participation in the assembly, which did not involve an act of worship (See, Altman v. Bedford Central School District, 245 F.3d 49 [2nd Cir. 2001]). Petitioner has not demonstrated that the use of the word "God" in a national patriotic anthem or motto violates the Establishment Clause. With regard to the motto, "In God we trust" appearing on United States coins and currency, Justice Brennan wrote:

It is not that the use of these four words ["In God We Trust"] can be dismissed as "de minimus" " for I suspect that there would be intense opposition to the abandonment of the motto. The truth is that we have simply interwoven the motto so deeply into the fabric of our civil polity that its present use may well not present that type of involvement which the First Amendment prohibits. This general principle might also serve to insulate the various patriotic exercises and activities used in the public schools and elsewhere which, whatever may have been their origins, no longer have a religious purpose or meaning. The reference to divinity in the revised pledge of allegiance, for example, may merely recognize the historical fact that our Nation was believed to have been founded "under God." Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln"s Gettysburg Address, which contains an allusion to the same historical fact. (Abington School District v. Schempp, 374 U.S. 203, 303 [1963], Brennan, J. conc.)

Forty years ago the United States Supreme Court held unconstitutional the use of official State prayer in New York schools. Yet, even in invalidating classroom prayer in that landmark decision, the Court explicitly stated that:

There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer"s professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.

Engel v. Vitale, 370 U.S. 421, 435, fn. 21. (1962)

The school assembly held on September 14, 2001 was just the sort of patriotic, ceremonial occasion described by the Supreme Court in which school children were "officially encouraged to express love for our country" by singing "God Bless America," an officially espoused anthem which included the composer"s profession of faith in a Supreme Being. Therefore, I find that the school assembly in which students were led by respondent in the anthem "God Bless America," did not violate the U.S. Constitution.

Furthermore, respondent acted within its authority under Education Law "1709 and 8 NYCRR Part 108 in holding the assembly. In view of the tragic events of September 11, 2001, the actions or respondent in permitting school officials to gather students in a school assembly, which included activities designed to reassure and evoke patriotism in such students only days after the attack, was entirely appropriate and commendable.

THE APPEAL IS DISMISSED.

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