Wednesday, October 28, 2020
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Christmas program didn’t violate 1st Amendment


A federal district court in Indiana ruled that a high school didn’t violate students’ First Amendment rights when it staged a holiday show in 2015 that included a passive Nativity scene and religious themed songs, according to the opinion and order of the court.

Nativity scene in Baumkirchen, Austria (Haneburger / / CC)

Three separate but related tests from Lemon v Kurtzman, 405 US 602 (1971) were applied:

  • The show didn’t constitute endorsement of religion
  • It didn’t coerce students into participating in a religious exercise
  • It had a secular purpose

The case concerns a holiday play at Concord High School, which—for more than 40 years—has been called the “Christmas Spectacular.” It includes two string orchestras, a symphony orchestra, a concert band, two jazz bands, five choirs, and small chamber music groups, as well as dance teams, actors, stage technicians, and more than 600 students.

The 90-minute show is staged five times during the holiday season, including four times for the public over a weekend and once for younger children in the district on a Friday.

During one section of the show, which lasts about 20 minutes, a medley of 10 songs is sung and given the heading, “The Story of Christmas.” Each song is Christian in nature, and the medley is narrated with stories of the birth of Jesus, as told in the Bible. After that segment, student actors stand still in a “living Nativity scene” for the remaining 12 or so minutes.

The Freedom From Religion Foundation filed suit against Concord Community Schools in 2015, which resulted in the school district modifying the Christmas Story section of the program by omitting the narration and by adding songs related to Hanukkah and Kwanzaa. But the living Nativity scene remained, and so the FFRF asked a judge to disallow that part.

Concord complied with a preliminary injunction preventing the school from “organizing, rehearsing, presenting, or intentionally allowing to be presented any portrayal of a Nativity scene that is composed of live performers as part of its 2015 Christmas Spectacular shows.” Instead, life-size figurines were put in place.

The FFRF didn’t like that either, but the district court granted the school district’s motion for summary judgment, in effect ruling that the way the school performed the Christmas Spectacular in 2015, with the figurines, didn’t violate the Establishment Clause.

As for previous years, with the living Nativity scene, the issue may be moot, since the school district has made changes that complied with the court’s order.

However, since the absence of any plan to resume a behavior that’s not right isn’t exactly the same thing as a promise not to engage in that behavior, “the Court directs the parties to submit supplemental briefs as to whether the [FFRF’s] claims for prospective relief as to the 2014 and proposed-2015 shows are moot. The parties should also submit any additional evidence pertinent to that issue.”

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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