‘Tis the Season . . . for Legal Exposure

The holiday season is fast approaching, bringing with it a sleigh full of legal landmines. Ho-ho-ho! Despite decades of legal precedent and guidance, the holiday season can generate First Amendment lawsuits, as an Indiana school learned recently.

Freedom from Religion Foundation v Concord Com­munity Schools (ND Ind, 2016)

For many years, Concord High School’s annual “Christmas Spectacular” show ended with a 20-minute living nativity scene that included Bible readings and Christian music. After a lawsuit was filed, the school omitted the living nativity scene and Bible readings. The revised show used mannequins in a shortened nativity scene and added songs about Chanukah and Kwanzaa. The plaintiffs amended their lawsuit, claiming that the revised show still violated the Establishment Clause.

The court disagreed, finding that the program changes fundamentally altered the nativity scene’s role in the show. While a 20-minute live nativity scene with Christian music and Bible readings was problematic, a passive scene lasting only two minutes during a single Christmas song, along with similar Chanukah and Kwanzaa presentations, was not an endorsement of Christianity. The court noted that the nativity scene did not stand out more than any other portion of the program.

The court also found that the scene’s presence was not coercive because it did not require any audience member to participate in a religious exercise. Rather, the audience sat passively during that portion of the show and was not compelled to do anything more. While the earlier versions of the Christmas Spectacular likely violated the Establishment Clause, the court determined that the revised version did not.

Holiday Celebration Legal Traps

A “Christmas Spectacular” scenario is just one of many potential legal traps for schools during the holiday season. Because public schools may not sponsor religious practices, it is important that your school’s holiday celebrations have an educational purpose. The Concord decision does not mean that all religious overtones must be removed from holiday celebrations in public schools. Rather, school officials should distinguish between teaching about religious holidays (which is permissible) and celebrating specific religious holidays (which is not).

The three-part test to determine whether governmental activity complies with the Establishment Clause of the First Amendment requires that: (1) the activity have a secular (non-religious) purpose; (2) the principal or primary effect of the activity not advance or inhibit religion; and (3) the activity not result in an excessive entanglement with religion.

When assessing whether a particular activity violates the Establishment Clause, consider the following six factors:

  1. The purpose of recognizing a religious holiday at school must be educational. Focus on infor­mation about the holiday’s origin and history.
  2. Consider diversity and recognize various religious holidays throughout the school year. For example, school officials could provide instruction about the origin, history, and cultural practices of Chanukah, Ramadan, Rosh Hashanah, Yom Kippur, Navratri, and Diwali, rather than lim­iting instruction to Christmas and Easter. This practice will underscore the social and secular purposes of the instruction.
  3. Do not promote or denigrate any particular religion or holiday. Because this legal prin­ciple is well-settled, a school official who promotes or denigrates a particular religious belief may risk losing qualified immunity and could be personally liable if litigation ensues.
  4. Holiday religious decorations and symbols should have a secular and legitimate ped­agogical purpose, and be displayed on a temporary basis as part of the academic program. The display must not promote a religious activity.
  5. Include other secular, non-religious symbols of the season. For example, school music groups may perform re­ligious music during concerts, provided that there is a variety of music that balances reli­gious music (and not just Christian music) with non-religious music.
  6. School officials should honor the requests of students and parents to be excused from holiday-related activities. When granting such requests, be careful not to ostracize the student opting out of the activity. Also, do not use opt-out as a license to turn the educational purpose of the activity into a religious celebration for the remaining students.

With any luck, we can get through the holidays with plenty of “cheer” and no “cease and desist” letters. Best wishes for a safe and non-litigious holiday season.