Avoiding the Naughty List this Holiday Season

Every year school officials confront the quandary of what schools can do to celebrate the holidays without running afoul of the Constitution. School 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.

Last year, the U.S. Supreme Court struck down a test that courts had used for decades to determine whether government activity violated the Establish­ment Clause. The Court did not establish a new test in its place. Given this lack of guidance, schools should proceed with caution when celebrating the holidays.

Diversify Content

Whether a school display or performance violates the Establishment Clause is assessed based on the full context of the material. When secular holiday symbols like Santas and reindeer are combined with a variety of religious symbols (such as a cross, creche, or menorah), it is less likely that a court would find that the material violates the Establishment Clause. Similarly, a display or performance that includes religious content should represent multiple religions, as diverse content is less apt to indicate school endorsement of a particular religion.

In recognition of religious music’s artistic merit, courts have consistently rejected a ban on all religious music from school performances. However, a performance of only devotional Christmas music without any other religions’ music or secular songs likely would be construed as an endorsement of religion in violation of the Establishment Clause.

Teach; Do Not Ritualize

Courts have long 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 endorses or promotes religion. The focus should instead be on the origin, history, and the religious holiday’s generally accepted meaning. The lesson should be educational and should include information about celebrations of various religions and cultures, not just a single religion or culture.

Accommodate Opt-Out Requests

Some parents and students may object to school-sponsored holiday activities. School officials should honor parental requests to excuse a student from those activities. Students who opt out must not be ostracized or penalized. For example, if a school choir intends to perform holiday songs at a church, students should be permitted to opt out of the performance without it affecting their grades or placement in the choir. School officials should keep in mind, however, that the absence of objecting students is not an opportunity to convert an otherwise educational activity into a religious celebration.

As courts continue to interpret last year’s Supreme Court decision involving the establishment of religion in the school context, school officials should proceed cautiously and ensure all holiday events, lessons, and displays are closely reviewed. If you have questions about holiday activities or displays, contact your Thrun attorney.