Sunday, April 1, 2018

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 

4 comments:

  1. Avoiding a "Christmas Spectacular" or some type of Holiday show, even in a public school, during the Holiday season is a hard and somewhat impractical thing to do. For the most part, students, parents, faculty, and staff want to share the Holiday spirit through school activities. This case at Concord High School of Indiana reminds me of Lynch v. Donnelly in that their is / could be (as it was not mentioned) a secular purpose to the second half of the show - "The Story of Christmas." Christmas has been turned into a secularized holiday. The creche, in Lynch v. Donnelly, was deemed to provide the secular purpose of reminding citizens of the historical origins of the Holiday in the whirlwind of shopping and buying. The same could be said for the purpose of the school having a nativity scene in their show, reminding people of Christmas's history. If students do not want to participate in the show, they do not have to and those who do not want to attend do not have to. In addition, the school clearly wants to accommodate all religions of the season in order not to violate the Establishment Clause. On the other hand, I do see how taxpayers who want zero affiliation with religion in public schools could have an issue with money being put into the show.

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  2. I think we are being soft because of the use of the nativity scene, which is almost considered American cannon at this point. If the school had an Easter play with the Resurrection of Christ as its focal point then more people would be upset about this matter, even if you included a Ramadan and Passover skit. That being said the court does not generally rule similar to my Jeffersonian wall of separation approach. The Lynch v. Donnelly majority stated that the government can celebrate religion at a low cost or to preserve culture such as a painting, as it has historically done so. That being said I agree with the dissent of that case, that this is not art, it is endorsement saying to minority groups that "is to convey the message that their views are not similarly worthy of public recognition nor entitled to public support." Yes the founding fathers (a ridiculously broad group of people to be put in one cohesive group) had chaplains employed by the government, but hey also had slaves. Follow their principles, not actions.

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  3. I think the issue doesn't start with the Nativity scene and its inclusion or exclusion, it starts with that fact that it was just called a Christmas Spectacular. With this being the name, I don't think it is unreasonable that the origin of this holiday is displayed. It makes sense to include it if the purpose is for this to be instructional. However, to be fully neutral to religions it would be better if it was a Holiday Spectacular and equally devoted time to the different holidays that are celebrated as the year comes to a close. This makes it equal and accomplishes the schools goal of recognizing the holidays.

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  4. I believe that Concord High School should be permitted to continue their Christmas Spectacular subsequent to the alterations made to the program. In the original version of the performance, I would agree that the first portion had secular intent. However, I do not believe that the reasonable observer would find some, if any, secular intent from the second portion. By including the stories of other religious holidays the program became more inclusive and followed the precedent set in Santa Fe Independent School District v. Doe. Thus, there was no infringement on the First Amendment Establishment Clause.

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