This time of year questions can arise in schools and the communities they serve regarding religion in public education. Community members may question the inclusion of Christian Christmas music in a winter choir concert, or parents may scoff at calling the upcoming days off “Winter Break” instead of “Christmas Break.” A Jewish employee might question why Christmas is a paid holiday, but she does not get paid time off for Hanukkah. An enterprising student may mount a campaign to ensure that a Christmas tree in the office is surrounded by symbols of other winter celebrations.
These issues are ultimately about the first two clauses of the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Over the years the separation of church and state has been repeatedly litigated. In one case, the U.S. Supreme Court allowed the display of a city-owned nativity scene, reasoning that it did not constitute an endorsement of any particular religion because it was part of a display celebrating a secular holiday (other parts of the display included a tree, Santa Claus, and a banner that read “Season Greetings”) and it merely highlighted the origins of the Christmas holiday. Lynch v. Donnelly, 465 U.S. 668 (1984). Just five years later, the Court prohibited the display of a privately owned nativity scene on the steps of a courthouse. County of Allegheny v. ACLU, 492 U.S. 573 (1989). In the latter case, the display stood on its own and was placed at a major government building. The Court concluded that a reasonable person might understand this to be an endorsement of Christianity.
Many other cases have been decided over the years. These disputes are not limited to December. Cases involving prayer at football games, reciting the Pledge of Allegiance at the beginning of the school day, funding private schools with tax-dollar-supported vouchers, and displaying the Ten Commandments and images of Jesus are among the cases that have directly involved schools and the First Amendment.
While these cases are highly fact-dependent, a few themes emerge relevant to winter holidays and public schools. The courts are willing to treat Christmas as a secular (nonreligious) holiday. Polling indicates more than 80 percent of non-Christian Americans celebrate Christmas. As a result, many symbols of Christmas do not implicate the First Amendment. A Christmas tree in a school building lobby is unlikely to be successfully challenged. Also, context matters. A high school choir concert that includes religious pieces among other songs is likely to be viewed as an artistic event rather than as an endorsement of religion. On the other hand, a first-grade reading assignment of the Biblical Christmas story is more problematic, especially given the age and impressionability of the students.
Finally, the courts are generally willing to protect the religious speech of students even as they limit that of school officials. The Supreme Court ultimately declined to hear a case arising in Texas involving a third-grade student who was prohibited from distributing candy cane pens with the message “Jesus is the Christ” at a class party. By passing on the case, the Court left in place the appellate court decision, which found that the child’s First Amendment rights were violated. Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011).
Constitutional questions are complex matters and are very fact-dependent. It is best to be proactive and consult legal counsel when questions arise. With this in mind, we hope you enjoy the final days of school before your winter break. Happy holidays!