Will the Constitution Steal Christmas?

For decades, the students of Concord High School in Indiana have staged and performed a Christmas Spectacular. In 2015, the Freedom From Religion Foundation wrote a letter on behalf of one of the students parents to Concord High School, alleging that the Christmas Spectacular violated the First Amendment's Establishment clause. The first half of the show often varied from year to year and was non-religious in nature. However, the second half of the show contained a 20-minute segment called “The Story of Christmas” that included readings from the New Testament and a nativity scene, which student actors posed for. Over the course of litigation, the school made changes to the program. First, the school removed the scriptural reading from the nativity scene. Secondly, they added two songs to begin the second half: “Ani Ma’amin” and “Harambee.” These performances were intended to represent Hanukkah and Kwanzaa. The District Judge said that these changes were not enough to address the Establishment Clause problems. Concord quickly edited the second half of the program further and announced that the Christmas Spectacular would now “observe the many cultural celebrations during this holiday season”. To represent Hanukkah and Kwanzaa, the show included a four-and-a-half-minute explanation and performance of their songs. For the remaining 20 minutes of the show, the school continued to perform songs from the old program such as, “Jesus, Jesus, Rest Your Head,” and “O Holy Night,” including the nativity scene with mannequins instead of student actors. The New Testament readings were removed completely from the program. In Freedom From ReligionFoundation v. Concord Community Schools, the U.S. 7th Circuit Court of Appeals held that a revised version of an annual Christmas program did not violate the Establishment Clause.

I think that this case could have gone either way considering courts also have ruled in favor of bans on religious music in public schools (Stratechuk v. Board of Education, South Orange-MaplewoodSchool District). However, cases like this have to be taken case by case because the context is important. Examining this case through the endorsement, coercion, and purpose tests, I don’t think that the revised version of the program violated the Establishment Clause.

The show passes the endorsement test because of the secular first half, the nativity’s lack of prominence, and the inclusion of other holidays. The second half used to be exclusively a telling of the birth of Jesus, but now it can be seen as a collection of music from multiple traditions. Overall, any reasonable observer wouldn’t believe that Concord is signing off on any particular religious message.

The show also did not pressure or coerce any individuals to support any religious beliefs. In Santa Fe Independent School District v.Doe (2000), the Court concluded that a student initiated prayer before a high school football game forced students to make an unconstitutional choice between religious conformity or not attending games. This court has employed the coercion test to find the school created a “captive audience” in a proselytizing environment. The concern over coercion is heightened in this case because it involves elementary and secondary public school students who are particularly vulnerable because attendance is mandatory and they are more impressionable. Yet unlike Santa Fe, there was no religious activity in which the audience members had to partake in. There was no prayer, the reading of the New Testament was removed in 2015, students were allowed to opt out of the performance, and viewing the show is optional.

Now, the purpose of the show wasn’t so clear. Concord claims that the secular purpose of the show is to provide a cultural education of December holidays. After scrambling to make the Christmas Spectacular more inclusive, Concord insincerely included brief songs to represent Hanukkah and Kwanzaa. There was clearly a lack of research on the holidays evident by the fact that “Ani Ma’amin” is a Jewish song, but not specifically about Hanukkah. Also, the Hanukkah and Kwanzaa performances are given much shorter time than the Christmas songs. Therefore, cultural education may not have been Concord’s true aim. That purpose may have been valid if they dedicated a more proportionate amount of stage time to other holidays.

However, the primary purpose of the Christmas Spectacular may not have been cultural education, but it was also not a religious one. The Establishment Clause only mandates that the primary motivation cannot be a religious purpose and Concord has proven that here. Concord asserts that the primary purpose for the program is for entertainment and to provide a learning opportunity for their performing-arts students.

http://blogs.edweek.org/edweek/school_law/2018/03/federal_appeals_court_upholds_.html