Historical Hallmarks Standard for Establishment Clause in Public School Curriculum

Introduction

Libby Hilsenrath v. School District of the Chathams, decided by the United States Court of Appeals for the Third Circuit on May 5, 2025, addresses an emerging approach to Establishment Clause disputes in public‐school settings. At its core, the case questions whether a middle‐school social‐studies unit on the Middle East and North Africa (“MENA” unit), which included videos and presentations about Islam alongside other world religions, crossed the constitutional line by “establishing” or “endorsing” religion.

The parties are:

Appellant: Libby Hilsenrath, on behalf of her minor son, C.H.
Appellees: School District of the Chathams; Board of Education; Superintendent Michael LaSusa; Assistant Superintendent Karen Chase; Principal Jill Gihorski; Supervisor Steven Maher; and two social‐studies teachers, Megan Keown and Christine Jakowski.

Key issues:

Does inclusion of videos about Islam in a world‐cultures curriculum violate the Establishment Clause?
What standard governs the analysis—Lemon, endorsement, coercion, or a new historical “hallmarks” approach?
Can a parent obtain nominal damages when their child has graduated or changed courses?

Summary of the Judgment

Applying the U.S. Supreme Court’s post–Lemon v. Kurtzman jurisprudence, especially Kennedy v. Bremerton School District (2022), the Third Circuit affirmed summary judgment for the School District. The court held that:

No “historical hallmarks” of government‐established religion were present.
There was no coercion of students to adopt religious beliefs or practices.
The curriculum placed Islam in the same secular, academic context as Christianity, Judaism, Buddhism, and Hinduism.
Hilsenrath could not prevail on nominal‐damages relief because the materials did not amount to an Establishment Clause violation.

The court thus introduced and applied a Historical Hallmarks Standard: instead of relying on the three‐pronged Lemon test or O’Connor’s endorsement test, judges must ask whether a government practice exhibits one or more of the traits historically associated with an official, state‐established church.

Analysis

Precedents Cited

Everson v. Board of Education (1947) – Incorporated the Establishment Clause against the States via the Fourteenth Amendment.
Lemon v. Kurtzman (1971) – Introduced the tripartite test (secular purpose; primary effect; entanglement).
Lynch v. Donnelly (1984) & County of Allegheny v. ACLU (1989) – Endorsement test focused on a “reasonable observer.”
Lee v. Weisman (1992) & Santa Fe ISD v. Doe (2000) – Emphasized coercion as a “foremost hallmark” of establishment, invalidating clergy‐led graduation prayers and student‐led football‐game prayers.
Town of Greece v. Galloway (2014) & American Legion v. American Humanist Association (2019) – Signaled skepticism toward Lemon, embraced historical practice.
Kennedy v. Bremerton School District (2022) – Explicitly rejected Lemon and endorsement tests in favor of historical‐evidence analysis.
Shurtleff v. City of Boston (2022) – Justice Gorsuch’s concurrence distilled “six hallmarks” of an established church.

Each of these decisions shaped the Third Circuit’s move away from a rigid formula toward an inquiry anchored in the historical relationship between church and state.

Legal Reasoning

The Third Circuit’s reasoning unfolds in three steps:

Reject Lemon and Endorsement Tests:
Following Kennedy, the court ruled that the “one‐size‐fits‐all” Lemon analysis and Justice O’Connor’s endorsement inquiry have been abandoned. Courts must instead examine whether the challenged practice reflects historical patterns of government establishment of religion.
Identify Historical Hallmarks:
Drawing on Shurtleff, the court listed six historical traits of state‐established churches:
- Government control over doctrine and personnel.
- Mandatory worship or attendance.
- Punishment for dissent or nonattendance.
- Restrictions on political participation by dissenters.
- Financial support or preferential treatment of one denomination.
- Use of a church to carry out civil functions under state monopoly.
Apply to the MENA Curriculum:
The court found none of those hallmarks in the World Cultures and Geography class:
- No coercion: Videos were part of an academic study (e.g., “making generalizations” exercise), not a devotional exercise or mandatory prayer.
- No preferential treatment: Islam was one of five religions studied in a secular context; the district’s K–12 curriculum also covered Jewish and Christian holidays, Hinduism, and the Reformation.
- No government control or sanction: Teachers did not mandate home viewings; students could opt out; there was no penalty for nonparticipation.

Because the curriculum lacked any historical “hallmark,” it did not “resemble a traditional hallmark of religious establishment,” and no Establishment Clause violation occurred.

Impact

Hilsenrath cements several emerging principles for future education‐related Establishment Clause cases:

Historical Hallmarks Over Lemon: Courts will inquire into whether the government practice mirrors the six historical traits of an established church, rather than mechanically apply Lemon’s three prongs or an endorsement analysis.
Permissible Academic Study: Integration of religious content into secular curricula—history, geography, art, cultural studies—remains constitutionally safe when presented neutrally, without coercion or preferential funding.
Parental Objectors and Nominal Damages: Though Hilsenrath’s son had moved on from the class, the court permitted nominal‐damages claims under § 1983, clarifying that nominal relief can vindicate constitutional rights even when injunctive relief is no longer possible.
Guidance for Curriculum Planning: School boards should document secular purposes, maintain opt‐out procedures, and uniformly address multiple faiths to avoid hallmarks of establishment.

Complex Concepts Simplified

Establishment Clause: “Congress shall make no law respecting an establishment of religion.” Prohibits government from officially endorsing or favoring religion.
Lemon Test: A three‐part test from Lemon v. Kurtzman (1971): (1) secular purpose; (2) primary effect neither advances nor inhibits religion; (3) no excessive entanglement. Abandoned in favor of historical analysis.
Endorsement Test: Ask whether a “reasonable observer” would view the government action as endorsing religion. An offshoot of Lemon now largely discarded.
Hallmarks of Establishment: Six historical traits (Gorsuch, Shurtleff concurrence) that defined state‐established churches at the founding and afterward, e.g., mandatory worship, government funding, doctrinal control.
Historical Approach: Judicial method focusing on how the Clause was understood at the founding and during the early Republic, rather than on modern balancing tests.
Nominal Damages: A small monetary award acknowledging a legal wrong—even if no actual harm is proven—recognized under 42 U.S.C. § 1983 to vindicate constitutional rights.

Conclusion

Libby Hilsenrath v. School District of the Chathams is a milestone in Establishment Clause jurisprudence. It confirms that public schools may teach about religion in a neutral, academic context without violating the Constitution, so long as they avoid the coercive, preferential, and entangling practices historically associated with state‐established churches. By embracing the Historical Hallmarks Standard, the Third Circuit aligns with the Supreme Court’s post–Kennedy trajectory and provides school boards a clearer roadmap for lawful religious instruction.

Going forward, educators and parents can look to Hilsenrath as authoritative guidance on designing curricula that respect both academic freedom and religious liberty.