Special Report Federal Court May Rule for First Time on Constitutionality of Yule Observances in Pub

An American Jewish Congress attorney said last week that a Federal Appeals Court test of the constitutionality of Chrismas observance guidelines for a public school district, an observance which the A J Congress told the court hurts Jewish children appeared to be the first time the issue had reached the Federal Appeals Court level.

Marc Stern, A JCongress counsel, who helped. write a friend-of-the-court brief filed with the Eighth Circuit Court of Appeals in St. Louis, also told the Jewish Telegraphic Agency that the agency hoped the regional counsel for the American Civil Liberties. Union, Steven Pevar, counsel for the plaintiffs, would file a request with the St. Louis court to expedite its hearings on the case. Pevar is Mountain States regional counsel for the ACLU.

Stern said the hope for on expedited hearing by the St. Louis court of the case was based on concern that adherence to standard court procedures might bring a ruling too late to affect application of the guidelines for the coming Yule season. The A JCongress brief was prepared by Stern and Nathan Z. Dershowitz, director of the agency’s commission on law and social action.

The brief declared that religious holiday observance in the public schools violated the first amendment’s church-state separation guarantee, as well as hurting Jewish children in such schools The case, “Florey vs. Sioux Falls School District,” deals with guidelines adopted by the Sioux falls, S.D. school board for the public schools under its jurisdiction. Sioux Falls is within the Eighth Federal Court District.

SIX OTHER JEWISH GROUPS FILE BRIEFS

A joint friend of the court brief also has been filed with the St. Louis appeals court by the National Jewish Commission on Law and Public. Affairs (COLPA) and the Anti-Defamation League of B’nai B’rith. Martin Cowan. COLPA secretary and Richard Weiss of the ADL wrote the brief. It pointed out that the Sioux Falls school board rules provide not only for Christmas and Easter pageants in the public schools but for the display of religious symbols, such as the cross and nativity creches in the classrooms. Others joining in the brief are Agudath Israel of America, the National Council of Young Israel, the Rabbinical Council of America and the Union of Orthodox Jewish Congregations of America, according to COLPA and the ADL.

Howard Zuckerman, COLPA president, said that unless the lower court decision is reversed, school districts throughout the nation will believe themselves free to engage in religious activities resulting in exposure of Jewish children to Christian doctrine.

The guidelines were challenged in 1978 by a group of students, parents and taxpayers, who sought to enjoin their promulgation an grounds they were in conflict with the first amendment. the local district court upheld the school board and the case was appealed to the Circuit Court of Appeals. The brief argued that the guidelines were unconstitutional because, first, they have a religious purpose; second, they have the direct effect of advancing religion; and third, they excessively entangle the government in religion. Stern said this is the three-part test used by the Supreme Court in such cases.

OBSERVANCE DISTRESSING TO CHILDREN

The brief declared that “the long standing concern of the Jewish community with religious holiday observances in the public schools is prompted not only by its commitment to religious freedom but also by purely partial practical considerations. The experience of Jewish children in public schools having Christological holiday celebrations has brought about virtual unanimity in the Jewish community in opposition to these sectarian practices.” Asserting that “Christological holiday celebrations in public schools are deeply distressing to children who are not brought up as Christians, the A JCongress brief also declared that “religious celebrations of this type introduce tension and divisiveness into public schools and often harass and hurt children of minority faiths. Such children face a conflict between the religious teaching they receive of home and the quite different teaching conveyed by the religious practices in their schools.

The brief declared that “Jewish parents as well as non believers and adherents of non-Christian sects are often made resentful and apprehensive because their children are forced either to participate in Christological observances, or, what is equally hurtful and unjust to isolate themselves by abstaining from participation.” The brief said that “when subjected to pressure on them to conform, Jewish children may find it easier to submit that to resist. The Jewish child, or his parent in his behalf, is left with the cruel choice of participating in religious observances contrary to his belief or of standing exposed as odd and non-conformist.”

Asserting that majority religions suffer as well when their beliefs are “watered down” to make them acceptable for use in public schools, the brief asserted that “it should be emphasized that this case extends beyond the question of Christmas observance. Principles enunciated by this court in this case will apply equally to religious holidays of all faiths. We recognize that Chanukah and Passover have no greater entitlement to observance in the public schools than Christmas or Easter.”