Deck the Halls Without a Lawsuit

Every year, school officials unwrap the dilemma of how schools can celebrate the winter holidays without landing on the constitutional naughty list. School celebrations occasionally involve religious content that implicates the First Amendment’s Establishment Clause. Under the Establishment Clause, a school must maintain religious neutrality and therefore may not endorse or promote religion.

In 2022, the U.S. Supreme Court struck down the test that courts used for decades to analyze Establishment Clause cases, but the Court did not establish a new test in its place, instructing that the Establishment Clause must be interpreted by “reference to historical practices and understandings.” Given the lack of clear guidance, school officials should proceed with caution during the holiday season.

Diversify Content

Whether a school display, lesson, or performance violates the Establishment Clause depends on the full context of the material. When secular holiday symbols (like Santas and reindeer) are combined with religious symbols from different faiths (such as a cross, creche, or menorah), a court is less likely to find an Establishment Clause violation. Similarly, a display or performance that includes religious content should represent multiple religions, as diverse content can illustrate the overall culture of the season rather than a school’s endorsement of a particular religion.

In recognition of religious music’s artistic merit, courts have consistently rejected banning all religious music from school performances. In contrast, a performance of only devotional Christmas music without secular songs or music from other religions may be construed as an endorsement of religion violating the Establishment Clause.

Teach – Don’t 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 generally accepted meaning of the religious holiday.

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 affecting their grades or placement in the choir. School officials should be mindful that the absence of objecting students is not an opportunity to convert an otherwise educational activity into a religious celebration.

Don’t Discriminate

‘Tis the season for ugly holiday sweater contests and other festive events. During this time, school officials must remember to remain neutral about religious displays of personal faith. If a school permits secular holiday attire and decorations, religious attire and decorations must be permitted on equal terms. For example, a student cannot be excluded from their class’s holiday sweater party for wearing a sweater that says, “Jesus is the reason for the season.”

We encourage school officials to proceed cautiously as they navigate this holiday season and to follow these tips to help avoid a fa-la-la-lawsuit.