Extensive planning goes into public schools’ holiday preparations this time of year—from which decorations should adorn classrooms to what music selections will make it into the holiday concert. But despite the seemingly lighthearted nature of these tasks, there’s one serious factor to consider that, if overlooked, could cause even the most highly orchestrated holiday plans at public schools to unravel or, worse, result in a lawsuit.
Francisco Negrón, the chief legal officer for the National School Boards Association, sums up the legal considerations to keep in mind when preparing for school-based holiday celebrations: “It’s clear that the [public] school can’t endorse particular religious views.”
But what’s clear to legal experts isn’t always obvious to others.
Cornell University education professor Jill Heinrich points out that, over the past several decades, schools have “repeatedly violated” the Constitution’s Establishment Clause, which mandates separation of church and state. Those violations, Heinrich suggests, occur primarily when schools misunderstand what separation of church and state means in practice. The result of these violations, said Heinrich, is “a steady stream of litigation over the past 70 years.”
Lawsuits filed over holiday-related activities, performances
One recent lawsuit—filed in December 2021 by a parent in California’s Carmel River School—sought a temporary restraining order after school administrators and the parent-teacher organization denied her request to display a six-foot inflatable menorah beside a Christmas tree during a planned tree lighting ceremony on the school grounds.
The parent, who is a lawyer, sued the Carmel Unified school district; its superintendent, Ted Knight; and the elementary school’s principal, Jay Marden, according to a news report by the Jewish Telegraphic Agency.
Days later, though, the parent voluntarily withdrew the suit after a judge determined that she had not met the legal standard required for a restraining order. In her ruling, U.S. District Judge Beth Labson Freeman said that in contemporary times, Christmas trees “typify the secular celebration of Christmas” while menorahs are considered religious expressions.
Another lawsuit claiming violation of the Establishment Cause was filed in October 2015 by the Freedom From Religion Foundation on behalf of a student and his father over a winter holiday performance in 2014 at Concord High School in Elkhart, Ind., that included an estimated 20-minute portrayal of the birth and adoration of Jesus Christ in a nativity scene by students and scripture reading.
After the complaint, the school revised the winter performance, omitting the scripture reading and using mannequins instead of student-actors for the nativity scene, and adding songs from non-Christian religions. But the Foundation filed an amended complaint, claiming that the performance was still unconstitutional and requesting a permanent injunction of the performance. The case reached the U.S. Court of Appeals and, in March 2018, federal judges denied the request for the permanent injunction on the grounds that the nativity scene no longer represented a centerpiece of the performance.
Strategies for staying within the law
While the outcomes in both lawsuits ultimately favored the school and/or district, the time and resources they likely required of K-12 administrators could have been avoided altogether.
Negrón suggests that educators and school officials take the time to ask some basic questions about planned school-based holiday activities—long before actors are chosen for performances and invitations for holiday celebrations are distributed.
The overarching legal question to ask, said Negrón, is this: Does the activity meet constitutional muster? Answering this question, he explains, requires considering more than just the form of the activity, but also its function.
He suggests educators ask:
- What are you trying to do; what’s your intent?
- Is the activity religious in nature?
- Do religious themes make up the majority of a program?
“It’s heavily dependent on what and why it’s done,” Negrón said. “It doesn’t mean a school can’t engage in religious-based instruction, provided that it’s not proselytizing in nature.”
He points to holiday music selections as an example of where there’s some ambiguity.
“A lot of classical music played during the holidays tends to have religious overtones,” Negrón said. “Generally, that’s OK as long as the performance is educational in nature and varied—not about one particular religion; for instance, not performing only selections from a Christian repertoire.”
“Public schools need to understand that they are schools for the community,” Negrón said. “Making sure they’re not engaging in sanctioning a particular religious point of view over a non-religious point of view, or one [religious point of view] over another.”
When in doubt, Negrón says don’t risk guessing. Ask for advice from a lawyer who works for the school district.