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Avoiding a Fa-la-la-la-lawsuit This Holiday Season
Each year, we receive questions about what schools may do to celebrate the holidays. Those celebrations - whether musical performances, decorative displays, or curricular activities - often involve religious content that implicates the First Amendment’s Establishment Clause. Under the Establishment Clause, the government (including public schools) may not endorse or promote religion. School officials should ensure that the principal purpose or effect of any holiday celebration or display does not advance or inhibit a particular religion.
Diversify Displays and Performances
The full context of a display or performance is generally determinative of Establishment Clause compliance. Displaying secularized symbols like a Christmas tree, Santa, or candy cane does not raise legal concerns. In contrast, displaying a religious symbol (e.g., a crèche) may violate the Establishment Clause if displayed without accompanying secular symbols or another religion’s holiday symbols. Creating a diverse display avoids sending the message to students that the school endorses a religion. Rather, such a display supports the winter season in general.
For example, a federal appellate court upheld a school’s display of diverse religious symbols in furtherance of the secular purpose of broadening students’ cultural understanding. Skoros v City of New York, 437 F3d 1 (CA 2, 2006). Those symbols included a menorah, star and crescent, kinara, dreidel, and a Christmas tree.
Similarly, another federal appellate court determined that a holiday performance consisting of a 2-minute live nativity scene did not violate the Establishment Clause. Freedom from Religious Foundation v Concord Cmty Schs, 885 F3d 1038 (CA 7, 2018). The court emphasized that the nativity scene did not stand out more than any other portion of the program and was included within a broader secular holiday performance (e.g., Santas, jingle bells, and winter wonderlands).
A musical performance with both secular and religious music does not violate the Establishment Clause if the performance presents religious music in an objective manner and not as the centerpiece. Given the artistic merit of religious music, courts have consistently rejected the need to ban all religious music from school performances. But, a performance that contains only devotional Christmas music without any secular holiday songs is likely unconstitutional, as it would be construed as promoting religion.
Teach, Rather Than Ritualize
Courts have acknowledged the educational benefits of teaching about different religions and their holidays and symbols. Teachers may provide instruction about religious holidays, but they must ensure that no lesson or content promotes or endorses religion. The focus should be on the origin, history, and generally agreed-upon meaning of the religious holidays.
Accommodate Opt-Out Requests
Courts have recognized that it would be impossible to develop a public school curriculum that does not offend the sensibilities of some students or parents, but school officials should honor parent requests to excuse a student from activities that involve religious holidays. Students who have opted-out should not be ostracized or penalized. For example, if a school choir intends to perform holiday songs at a church, students must be permitted to opt out of the performance without affecting their grades or place in the choir. Also, the absence of objecting students must not be used as an opportunity to turn the activity’s educational purpose into a religious celebration.
Observing these guidelines will help ensure a school is not promoting or endorsing religion and not coercing students to observe or participate in a religious holiday.