A Special Section of the Reporter Sponsored by the Education Law Association LET S TAKE THE BAH HUMBUG OUT OF CHRISTMAS: A GUIDE TO

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1 EDUCATION LAW INTO PRACTICE A Special Section of the Reporter Sponsored by the Education Law Association LET S TAKE THE BAH HUMBUG OUT OF CHRISTMAS: A GUIDE TO PERMISSIBLE ACTIVITIES AT PUBLIC SCHOOLS DURING THE CHRISTMAS SEASON * by Jeffrey Horner, J.D. ** Introduction In recent years, a near paranoia has existed regarding the celebration of Christmas in our nation s public schools. Many organizations and media outlets take the position that any kind of Christmas display or celebration, no matter how minute, constitutes a violation of the U.S. Constitution. Other people take a more relaxed approach to this issue. This matter has gotten great play in the regional and national press, including significant coverage on Fox News, CNN, and other well-known news outlets. The purpose of this article is to separate fact from fiction regarding permissible activities at public schools during the Christmas season and provide a practical guide to navigating the sometimes uncertain waters of Christmas celebration in the public school setting. Legal Background The issue of permissible religious activities in the public schools is not new. On numerous occasions in the past, it has been the subject of litigation at the U.S. Supreme Court

2 level. These cases primarily relate to the sometimes-contradictory relationship between three different clauses in the First Amendment to the United States Constitution. The First Amendment states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. 1 Hence, the common references to the Establishment and the Free Exercise Clauses come into play. Further, the First Amendment prohibits the passage of laws abridging the freedom of speech. Free speech challenges to student religious practices have also emerged as significant points of contention. Courts have interpreted the Establishment Clause to require a governmental entity to refrain from any activity that may tend to establish or promote any specific religion, or religion in general. The Establishment Clause has also been interpreted to forbid government practices or acts that are hostile toward religion. The test employed for over thirty (30) years in deciding whether a governmental policy or practice violates the Establishment Clause was set forth by the U.S. Supreme Court in Lemon v. Kurtzman. 2 According to the so-called Lemon test, an activity of a governmental entity will pass constitutional muster only if it complies with the following three-pronged test: 1. There is a legitimate, secular, non-religious purpose for an activity; 2. The primary effect of the activity neither advances nor hinders religious belief or practice; and 3. The activity does not foster excessive entanglement between the governmental entity and religious concerns. 3 If a practice fails any one of these prongs, it is unconstitutional. While over the last decade there has been significant criticism of Lemon as a workable test for deciding

3 Establishment Clause cases, Lemon remains good law and has been utilized, at least in part, in recent school religious activity cases. The Free Exercise Clause generally prohibits the government from burdening an individual s exercise of his or her chosen religion. Among other things, it guarantees parents the right to control their child s religious education and upbringing. However, it does not require schools to tailor their curricula to satisfy everyone s religious practices. This concept highlights the inherent tension between the Establishment and the Free Exercise Clauses: if the school goes too far to try to accommodate a certain religious belief, it may violate the Establishment Clause by promoting that religion. Courts have long turned a suspect eye to inherently religious activities performed by governmental actors. For example, in School District of Abington v. Schempp, 4 a prayer delivered over a public address system at school prior to the beginning of the school day was ruled to be unconstitutional. 5 Likewise, in Engel v. Vitale, 6 the U.S. Supreme Court held that simply because prayer may be nondenominational cannot free it from the limitations of the Establishment Clause. 7 The Lemon case provided the longstanding framework for the review of religious practices at public schools. However, Lemon has not been at the forefront of all religion cases, particularly in recent years. For example, the Supreme Court held the delivery of a prayer by a rabbi at a school graduation to be unconstitutional based on a coercion test, with only passing reference to the Lemon decision. 8 Likewise, Lemon was not a significant factor in the determination that a public school may not permit a school-sponsored prayer given over the public address system at school football games, even when the prayer is delivered by a student. 9 Whether or not Lemon is followed, the general crux of these cases is that the government must

4 stay neutral on matters of religion, but it also cannot inhibit student religious speech or other student activity which has free exercise or free speech implications. Analysis of Both Parts of Christmas the Secular and Religious The Christmas season is probably the most important time for Christians throughout the world. It is a time for the celebration of Christ s birth. Because such a large percentage of our nation s population is Christian, it is only natural that there is some Christmas spillover into the public schools. Hence, the inherent conflict arises: students and employees bring Christmas to school with them, yet public schools must remain neutral on religious matters. Also, we must not forget the secular side of Christmas. Santa Claus, Frosty the Snowman, and Christmas candy have nothing to do with the birth of Christ or the Christian religion, yet they are ingrained into our nation s psyche during the Christmas season. Could you imagine Christmas without Christmas trees, Santa Claus, and visions of elves making toys? The secular side of Christmas provides less of an obstacle to public school officials in attempting to determine the permissible boundaries of appropriate expression at Christmas. Having a picture of Santa Claus on a school bulletin board would not implicate the religion clauses of the First Amendment, as Santa is purely secular and has no direct relationship to Christianity. It is this balancing act that requires school officials to evaluate religious activities on a case-by-case basis to determine their permissibility in public schools. Some courts have taken a very narrow view of religious activity at public schools during the Christmas season. For example, in 2003, the Third Circuit Court of Appeals upheld a school district s decision to restrict the distribution at a holiday party of candy canes that had religious

5 messages attached to them. 10 Other religious symbol cases have turned largely upon the facts of the specific situation. For example, in Lynch v. Donnelly 11 the Court found a display that included a nativity scene, a Santa Claus house, a Christmas tree, and a banner that read Seasons Greetings, all in close proximity to each other, was not violative of the U.S. Constitution. However, in County of Allegheny v. American Civil Liberties Union, 12 the Court found that a nativity scene, standing by itself inside a courthouse, violated the Establishment Clause, while a menorah, standing outside a courthouse next to a Christmas tree and a sign saluting liberty, did not. 13 Another case held that the government could allow a private display of the Latin cross in a public forum. 14 In yet another decision, a federal district court in New Jersey approved a school policy that recognized religious holidays such as Christmas and Hanukkah and allowed for the displays of the cultural, ethnic, and religious customs and traditions of others during the appropriate holiday season, holding that this practice did not violate the Establishment Clause. The court found that because the displays were limited to appropriate seasons and were part of learning about other cultures and societies, they served a permissible secular purpose. 15 To the author s knowledge, there are no cases prohibiting the display of the secular symbols of Christmas at public schools, such as Santa Claus, reindeer, etc. On its face, any challenge to these symbols on Establishment Clause grounds would likely border on frivolous. It would be akin to trying to outlaw pictures of Easter bunnies during the Easter season, or turkeys during Thanksgiving. These symbols are secular in nature, and do not raise the imprimatur of the state regarding either the endorsement or inhibition on religion.

6 Indeed, recent U.S. Supreme Court cases have added another element to the equation free speech rights. Public schools have banned certain activities based upon the fear that the activities would violate the Establishment Clause. However, on more than one occasion, the Court has sent the message that such fears are unwarranted and that in fact the action taken by the school violated the free speech rights of students. For example, in Rosenberger v. University of Virginia, 16 the Court ruled that the University of Virginia s refusal to fund a Christian-oriented school newspaper was unconstitutional viewpoint discrimination, where the school funded other student publications. UVA argued that it denied funding to avoid violating the Establishment Clause. The Court emphasized: More than once we have rejected the position that the Establishment Clause even justifies, much less requires, our refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design. 17 The Court rejected the school s concern that it would be seen as endorsing the newspaper s religious orientation as not a plausible fear. 18 Likewise, in Lamb s Chapel v. Center Moriches School District, 19 a church asked a school if it could show a film series at the school that dealt with raising children from a Christian perspective. The school denied the request, alleging a potential Establishment Clause violation. Like Rosenberger, the Court here found that the denial violated the free speech rights of the church by discriminating between groups on the basis of their speech. The Court further found that allowing the church to show its film would not violate the Establishment Clause because there was no chance the community would think the district was promoting religion in general or any specific creed by simply permitting the showing of the films. 20

7 Several factors influence these cases - the governmental endorsement of religion versus a student s right to freely exercise his or her religion and the free speech rights of those students and entities who interact with government. Where is one to draw the line during the Christmas season? The following are lists of permissible and impermissible activities relating to the Christmas season at public schools. List of Permissible Activities 1. Student prayer. Clearly, individual or collective student prayer is permissible during the Christmas season. Students have the absolute right to freely exercise their religious beliefs, whether they are Christian, Jewish, or Muslim. Furthermore, they have the right to pray, either individually or collectively, as long as the occasions during which they pray comply with the rules and regulations of the school. For example, students cannot organize a prayer group which skips math class to pray. Students do not have a constitutional right to pray at times which impede the educational mission of the school. However, they do have the constitutional right to pray at times and under circumstances which comport with school rules and regulations. 2. Secular Parts of Christmas. As stated earlier, to the author s knowledge there are no cases outlawing schools from recognizing the secular parts of Christmas. Whether or not one is a Christian, it is clear that the secular elements of Christmas play a large part in many lives. Christmas has become a very large commercial, as well as religious, holiday. Therefore, hanging pictures of Santa Claus or reindeer in a classroom, giving out Christmas candy at a party, or singing Jingle Bells as part of a school play is not, in the author s view, a violation of the First Amendment. Rather, they are a fun part of Christmas that all can enjoy.

8 3. Christmas Parties. In the author s opinion, Christmas parties that focus on the secular side of Christmas are permissible. Exchanging gifts, singing Rudolf the Red-Nosed Reindeer, and enjoying a visit from Santa Claus do not implicate the Establishment Clause. Out of a sense of utmost fairness, the author s only caveat is that children of faiths other than Christianity should not be compelled to observe or celebrate even the secular parts of Christmas against their wishes. 4. Christmas Caroling. We are all familiar with a large variety of Christmas carols, some of which are secular in nature and others which focus on the religious side of Christmas. Thus, any Christmas caroling at school, while permissible, should focus on the secular genre of songs. Songs which more directly implicate the birth of Christ, such as Silent Night and O Little Town of Bethlehem, would be more problematic. 5. School Sponsorship of Secular Activities. Again, school activities that relate to the secular side of Christmas are not barred by the First Amendment. In the author s view, sleigh rides, gift exchanges, the viewing of Christmas-oriented movies, and other activities which do not promote or inhibit the practice of Christianity are permissible. 6. Christmas Displays. Christmas displays which do not overemphasize the religious side of the holiday are permissible. Remember the Supreme Court cases which have spoken directly to this issue. In the Lynch case, a nativity scene, which was displayed closely to a Santa Claus house, Christmas tree, and a Seasons Greetings banner, did not violate the U.S. Constitution. However, in the County of Allegheny case, a nativity scene standing alone inside a courthouse was violative of the Establishment Clause. The lesson learned: objects which depict the religious side of Christianity, when standing alone, could be violative of the law. Any

9 displays should focus on the secular elements of Christmas, or combine both secular and religious symbols in close proximity to each other. List of Impermissible Activities Based on the law, the following is a list of activities which should not be sponsored by a public school during Christmas season: 1. School-Led Prayer. Any prayer led by a school official, or the agent of a school such as a priest, rabbi, or minister, would be violative of the First Amendment. 2. School-Led Songs. Any school-led singing of religious holiday songs, much like a sermon delivered by a priest, would also likely violate the First Amendment. 3. Overtly Christian Displays. As stated in County of Allegheny, any display standing alone which plainly suggests a Christian deity or a recognized Christian practice would most likely be considered violative of the First Amendment. 4. School Restriction on Student Activities. Any restrictions by the school to forbid student activities which are religious in nature but impinge on student free speech rights are likely impermissible. For example, a court would likely question this scenario: During the Christmas season, a school attempted to cancel a Young Life prayer session, after Young Life is given access to school facilities for its meetings and other activities during the year. Under recent Supreme Court cases, this action would likely amount to illegal viewpoint discrimination. Furthermore, the school could run afoul of the Equal Access Act ( Act ). The Act makes it unlawful for a public secondary school which has created a limited open forum and receives

10 federal financial assistance to deny access to students who wish to conduct a meeting at school facilities on the basis of their speech, religious or otherwise. See 20 U.S.C Student Religious Groups Organized by the School. It would likewise be impermissible for school officials to organize student groups which promote or engage in religious activity. Any student-led or student-related groups, such as Young Life or the Fellowship of Christian Athletes, are certainly permissible, but the school sponsorship of these or similar groups could run afoul of the Establishment Clause. Conclusion Contrary to what you may hear from the mainstream media, public school districts do not have to be The Grinch that Stole Christmas during the Christmas season. The hand-wringing of certain organizations and media groups over every Christian event occurring at the public schools simply is not justified. Certain activities which celebrate the spirit of Christmas without promoting religious practices are perfectly acceptable. Not every conceivable item which reminds one of Christmas is violative of the Establishment Clause. Indeed, as the Supreme Court has noted, some actions taken by public schools to avoid purported Establishment Clause infractions have resulted in the violation of a student s or group s free speech rights. Good common sense should be the watchword during the Christmas season. Any activities in public schools which promote the spirit and/or secular side of Christmas need not be prohibited. Rather, they should be embraced as a part of our society s celebration of the holiday season. On the other hand, any activities organized by school officials who overtly tend to promote Christian practices should be viewed with caution. The author s advice to media,

11 parents, and school officials during the holiday season: Relax, have an eggnog, and enjoy a happy holiday season. Let good judgment and common sense be your guideposts, not mediadriven paranoia.

12 Endnotes * Education Law Into Practice is a special section of the EDUCATION LAW REPORTER sponsored by the Education Law Association. The views expressed are those of the author and do not necessarily reflect the views of the publisher or the Education Law Association. Cite as [207 EDUC. L. REP. 831] (June 1, 2006). ** The author is a partner in the law firm of Bracewell & Giuliani LLP in Houston, Texas. He is the head of the firm s 25-lawyer Public Law Section, which focuses on the representation of public school districts, colleges, private schools, and other public entities. He is a past president of the Education Law Association. 1 U.S. CONST. amend. I U.S. 602( Id. at U.S. 203(1963). 5 Id. at U.S. 421 (1962). 7 Id. at Lee v. Weisman, 505 U.S. 577 (1992).

13 9 Santa Fe ISD v. Jane Doe, 530 U.S. 290 (2000). 10 Walz v. Egg Harper Township Bd. of Educ., 342 F.3d 271 (3rd Cir. 2003) U.S. 668 (1984) U.S. 573 (1989). 13 See also Sechler v. State Coll. Area Sch. Dist., 121 F. Supp. 2d 439 (M.D. Penn. 2000) (a display including signs of Christmas, Hanukkah, Kwanzaa, and secular Christmas did not violate the Establishment Clause.) 14 Capital Square Review and Advisory Board v. Pinett, 515 U.S. 753 (1995). 15 Clever v. Cherry Hill Township Bd. of Educ., 838 F. Supp. 929 (D.N.J. 1993) U.S. 819, 115 S.Ct (1995). 17 Id. 115 S.Ct. 2510, Id U.S. 384, 113 S.Ct (1993) S.Ct. 2141, See also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 121 S.Ct (2001).