Federal Appeals Court Upholds Public School’s ‘Christmas Spectacular’

By Mark Walsh — March 22, 2018 3 min read
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The legal reviews are in for the 2015 “Christmas Spectacular” at Concord High School in Elkhart, Ind., a winter concert at the public school that features a mix of secular and religious elements.

“Did not violate the establishment clause,” wrote one federal appeals court judge.

“The Concord Community Schools have not violated the Constitution,” concurred another.

And for good measure, in an opinion that sometimes reads more like a Broadway Playbill than a legal decision (complete with multiple photos from the show), the first judge worked in a four-star review of the “impressive” show itself.

“In 2015 Concord sincerely and primarily aimed to put on an entertaining and pedagogically useful winter concert,” writes Chief Judge Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit, in Chicago. “Concord’s production is extraordinary: it involves about 600 students and puts the lie to those who suggest that arts and music are not important parts of a high school program.”

(The glowing review appears to be based on legal submissions, not on any attendance of the show by the judge.)

The case involves a high school that has put on its Christmas Spectacular for some 45 years. The Concord High show for many years was made up roughly of one half secular pieces such as “Winter Wonderland” and “Secret Agent Santa,” and the other half centered on a segment called “The Story of Christmas,” which concluded with a live Nativity scene.

In the summer of 2015, the Freedom From Religion Foundation, a Madison, Wis.-based church-state advocacy group, challenged the show in a letter to the Concord High principal and later a lawsuit alleging that the show violated the First Amendment’s prohibition on government establishment of religion.

The school offered to make some changes, such as removing a scriptural reading from the Nativity scene and adding a Hanukkah and Kwanzaa song. A federal district judge ruled that those changes did not go far enough to bring the show into constitutional compliance, and he granted a preliminary injunction barring the school from performing that proposed version.

Concord High kept working at it. In addition to keeping the Hanukkah and Kwanzaa songs in the second half of the show, the school added religious Christmas songs such as “O Holy Night” but removed New Testament readings and de-emphasized the Nativity scene, such as by replacing the live actors with mannequins.

That version was performed in 2015. Soon after, the Freedom From Religion Foundation amended its suit to object to that version as well. But the district judge found that the changes were enough to make the show constitutional. (He did declare the longtime version of the show performed through 2014 and the first proposed revisions to be in violation of the establishment clause.)

The foundation appealed, and on March 21, a three-judge panel of the 7th Circuit court issued its unanimous judgment upholding the 2015 version in Freedom From Religion Foundation v. Concord Community Schools.

Judge Wood noted that the second half of the 2015 version, which she said was also performed at Concord High in 2016 and 2017, differs significantly from the 2014 version and the first revised version.

“The biblical reading is gone,” Wood said. “The Nativity scene is over 80 percent shorter, now on stage for just one song with a handful of mannequins rather than student actors. The show also pays tribute, albeit briefly, to two winter celebrations besides Christmas.”

This means the 2015 version does not unconstitutionally endorse religion, Wood said in applying one of the U.S. Supreme Court’s church-state legal tests.

“A reasonable audience member, sitting through the 90‐minute Spectacular, would not understand the production to be ratifying a religious message,” Wood said. “The changes to the second act reduced the religious impact, tipping the scales in favor of Concord.”

Judge Frank H. Easterbrook, concurring in the outcome, said he objected to the way some federal judges have “have picked through a performance to choose among elements with religious significance.” It isn’t clear if he meant just the majority in this case or rulings by other judges as well.

“The Concord Community Schools would not violate the Constitution by performing Bach’s Mass in B Minor or Handel’s Messiah, although both are deeply religious works and run far longer than the nativity portion of the ‘Christmas Spectacular,’” Easterbrook wrote.

A version of this news article first appeared in The School Law Blog.