During this holiday season, let’s take the time to celebrate our most cherished education law tradition: the Establishment Clause. The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” This pithy phrase provides a minefield of potential pitfalls for schools to navigate under the best of times, and a possible quagmire during the holiday season. This difficulty is illustrated in the recent case Freedom From Religion Found. v. Concord Cmty. School, N.D. Ind. No. 3:15-CV463, a case that began as a dispute over a living nativity scene in an annual holiday show.
Concord High School has a robust performing arts department that includes multiple bands, orchestras, and show choirs. Since 1970, the department performed a Christmas show modeled on the Radio City Christmas spectacular. The center piece of the performance involved a living nativity scene where students portrayed various nativity figures, while multiple ensembles played religious songs and a faculty member read excerpts from the Bible. This tradition continued for years until a student and his father filed suit alleging that the religious content of the Christmas Spectacular violated the Establishment Clause. A federal district court agreed and prevented the school from presenting a nativity scene composed of live performers.
The following year, the school presented the nativity scene with mannequins rather than student performers. The same federal district court ruled that the nativity scene did not violate the Establishment Clause. So what gives? How can a live nativity scene violate the Establishment Clause when the same scene with mannequins does not? The federal court actually provided some guidance for beleaguered school officials.
First, the federal court noted that the First Amendment prohibition against the establishment of a religion does not mean that all religious content and imagery must be purged from the school setting. Rather, the Establishment Clause simply prohibits governmental endorsement of religion. In the second go round, the school fundamentally altered the nativity scene’s role in the performance removing it as the visual centerpiece of the show. Where the nativity scene previously appeared on stage for twelve minutes, spanning six different songs, the scene now appeared for two minutes and one song. The school also eliminated the biblical passages and incorporated performances regarding Chanukah and Kwanzaa. The federal court found that, against this context, nothing about the presentation of the nativity scene, which is undoubtedly religious in nature, drew additional emphasis or suggested a preference for any religion.
Next, the federal court noted that the Chanukah, Kwanzaa, and nativity performances were preceded by a student read introduction that conveyed the cultural and historical context of each tradition. The federal court found that these sorts of explanations, that place a religious symbol in its historical or cultural context, are helpful in portraying a message of pluralism and freedom of religion rather than a message of endorsement.
Next, the federal court noted that the performers did not subject the audience to any direct or indirect pressure to conform to Christian beliefs. The case would undoubtedly be different if the school distributed proselytizing materials or offered the audience to engage in a religious observance.
Finally, the federal court found that the use of the nativity scene ultimately served a legitimate secular purpose. Specifically, the ultimate point of the show is not to convert audience members but to allow the students the opportunity to utilize their skills to perform a challenging program in front of a live audience. A court is less likely to find an Establishment Clause violation when there is a legitimate educational purpose for utilizing the religious content or image.
To read this case, please click here.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.