Ferrara Fiorenza P.C.
 

Winter Holidays and the First Amendment

The early winter months are marked by numerous holiday concerts, displays, and celebrations, which enliven the school environment and provide exciting learning opportunities in a number of subjects.  However, holiday-themed events can also be a source of contention between the District and members of the community who object to what they see as the inclusion, exclusion, or perversion of religious beliefs. 

The religion clauses of the First Amendment serve two purposes:  the Free Exercise Clause ensures that people can practice their faith freely, and the Establishment Clause prevents the government—including public schools—from establishing or endorsing a religion.  As many administrators have come to find, the First Amendment often works at cross-purposes in a school setting; by permitting overt religious displays, a school district runs the risk of violating the Establishment Clause, and by preventing children from creating such displays, it may run afoul of the Free Exercise Clause. 

Complicating what is already a difficult legal issue is the reality that holiday displays and concerts in schools necessarily involve things of great importance, as there is little that concerns people more than the instruction of their children or their religious beliefs.  Moreover, schools are often a source of identity for cities, towns, and villages, and public displays and concerts have the potential to convey certain ideas about what the community believes and what it deems important. 

Because it is something that people care so deeply about, the content of holiday concerts and displays in schools has, on a number of occasions, caught the attention of the U.S. Supreme Court.  The Court has made it clear that schools may teach about religion and its cultural significance, and may use religious symbols and songs in teaching about religion.  However, schools may not carry out religious instruction and may not favor or denigrate one faith or belief over another.  As long as a school maintains a neutral position on religion and is tolerant of all views, it is unlikely to run afoul of the First Amendment. 

In practice, this means that it is permissible to limit or eliminate the use of overtly religious displays and references in favor of secular symbols of the holidays.  If symbols or signs from a particular religious tradition are used, they should be balanced by those of other faiths, as well as appropriate secular signs.  For example, a crèche or a menorah erected in isolation would likely be found unconstitutional if challenged.  However, holiday displays that include a menorah, a star and crescent in recognition of the holy month of Ramadan, a Christmas tree topped with a star, and various secular decorations have been found to comport with both the Free Exercise Clause and the Establishment Clause.  Additionally, in evaluating the context in which religious symbols are situated, administrators should be attentive to the religious intensity of the representation, ensuring that a display does not serve the purpose of proselytizing or endorsing of a religion. 

The same reasoning has been applied to holiday concerts.  Secular songs and themes are generally acceptable during these events.  A school does not have to include or permit religious music at seasonal concerts, but if it does, such songs should be balanced with those of other faith traditions and secular music. 

If you have any questions or need assistance in this regard, please contact us.

 

Excerpted from the November 2011 edition of "School Law Matters".  To view the entire newsletter, please click here.