Public School Restrictions on Religious Music Upheld

By Mark Walsh — November 24, 2009 2 min read

Just in time for the holiday season, a federal appeals court has upheld a New Jersey school district’s restrictions on religious music at holiday performances in its schools.

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, held that the policy of the South Orange-Maplewood school district was not hostile to religion in violation of the First Amendment, nor did it violate the rights of student to receive information and ideas.

“Certainly, those of us who were educated in the public schools remember holiday celebrations replete with Christmas carols, and possibly even Chanukah songs, to which no objection had been raised,” says the opinon by U.S. Circuit Judge Dolores K. Sloviter in Stratechuk v. Board of Education, South Orange-Maplewood School District. “Since then, the governing principles have been examined and defined with more particularity. Many decisions about how to best create an inclusive environment in public schools, such as those at issue here, are left to the sound discretion of the school authorities.”

The opinion goes into some detail about the school district’s policies and practices in recent years. The upshot is that the district encourages secular holiday selections such as “Winter Wonderland,” “Frosty the Snowman,” and “Rudolph the Red-nosed Reindeer.”

“Music centered on Peace is also a nice touch,” an administrator’s memo said.

But religious selections such as “Joy to the World,” “Hark, the Herald Angels Sing,” and “Silent Night,” are no longer allowed in winter concert performances, an administrator testified, although such religious music could be taught as part of the music curriculum.

And since 2004, the year after a parent complained about certain Christmas songs in the district’s programs, there have been musical selections performed that had some religious overtones, such as “Waters of Babylon (psalm 137),” “Jubilate,” and “Agnus Dei/Cum Sanctis.”

The district’s policy was challenged by Michael Stratechuk, a father of two students in the district, who contends the policy is hostile to religion and infringes on his children’s right to learn about religious music.

He lost in both a federal district court and the 3rd Circuit. The appeals court said it didn’t help Stratechuk that several courts have upheld public schools’ decision to allow religious music to be performed at holiday concerts.

“That is far different from holding that the First Amendment compels a school district to permit religious holiday music or risk running afoul of the First Amendment,” the court said. “Stratechuk has offered no persuasive authority that the First Amendment prevents South Orange-Maplewood School District from formulating a policy that precludes performance of religious holiday music.”

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

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