Just in time for Easter: a major case about Christmas

The 7th Circuit has approved the Christmas Spectacular production at Concord High School in Elkhart, Indiana, despite the fact that the program included a nativity scene and other religious content. This litigation has been going on since 2014 when the Freedom from Religion Foundation challenged this annual event in the small Indiana town.

This program is a holiday tradition going back to the 1970s when the high school marching band attended the Radio City Christmas Spectacular in New York. I’m sure that the Radio City program is impressive, but those Yankees got nothin’ on these Hoosiers. Concord High produces a program that involves two string orchestras, a symphony orchestra, a concert band, two jazz bands, five choirs, and small chamber groups. That’s just the music. The program also includes dance teams and drama department players. Throw in the stage technicians and crew, and you have 600 of the high school’s 1700 students involved in this 90-minute production. I expect there is a partridge in a pear tree as well.

Until the litigious Doe family got involved, the program was exclusively about Christmas. Oh, there were secular songs, like Jingle Bells and White Christmas, but there was no mention of other faiths and their winter celebrations. Moreover, the program concluded with “The Story of Christmas” which included readings taken directly from the Gospels. This was accompanied by a live nativity scene, with students in costumes portraying Mary, Joseph, angels, shepherds and the three wise men.

The Doe family, supported by the Freedom from Religion Foundation, filed suit, seeking to force changes in the program for 2014. In response, the school immediately offered to make some changes. They dropped the Gospel readings, and added songs pertaining to Hanukah and Kwanzaa. These holidays, along with Christmas, would be introduced in the program with a short reading about the cultural significance of each holiday. But the nativity scene was still in the program. And the “Story of Christmas” portion was to last 20 minutes, compared to three or four minutes honoring the other traditions.

The federal district court in Indiana ruled that this did not go far enough. The court held that the program, as proposed by the school, would still amount to a governmental endorsement of religion, in violation of the First Amendment.

So the school made additional changes for the 2015 program. The Doe Family continued to object, but the court found the 2015 program to be significantly different from previous Christmas Spectaculars. Those differences were enough for the program to pass muster. The plaintiffs appealed this decision to the 7th Circuit, and now that court has affirmed the ruling.

Some Key Quotes:

About the nativity scene….

 Let us start with the most inherently religious aspect of the show: the nativity scene. We are not prepared to say that a nativity scene in a school performance automatically constitutes an Establishment Clause violation. Each show must be assessed within its own context. Nevertheless, the nativity story is a core part of Christianity, and it would be silly to pretend otherwise. Many nativity scenes therefore run a serious risk of giving a reasonable viewer the impression of religious endorsement. But in Concord’s 2015 show, the nativity tableau no longer stands out. Instead of serving as the centerpiece for much of the second half and the finale, it has become just another visual complement for a single song.

What about Christmas Carols?

 Without the biblical narration and live nativity, the performance of Christmas carols alone does not inevitably convey a religious message. These songs, played with regularity in workplaces and stores and on TVs and radios have permeated mainstream society.

Bottom line….

 The current Spectacular is primarily entertainment and pedagogy. The nativity scene, which was problematic in the 2014 and proposed versions, is no longer the second half’s main event. Instead, as we have already said, it accompanies just one song, serving the same aesthetic purpose as the images projected on screens and other visuals.


 This would have been an easier case if the Christmas spectacular had devoted a more proportionate amount of stage time to other holidays.

This case is a great illustration of how the culture wars in our society play out in the public school. The court noted that there was a Facebook page entitled “Save Concord’s Christmas Spec’s Nativity Scene” with over 7,000 “likes.” Hundreds of people in the small town wore t-shirts promoting the cause to a school board meeting. Yard signs were on display in the community and someone (a Christian????) sent a death threat to the FFRF. Yikes.

Moreover, the court noted that there was a “powerful ovation” from the audience when the nativity scene was displayed.

And how did the judges feel about this case?

 The parties put us in the uncomfortable position of Grinch, examining the details of an impressive high school production. But we accept this position, because we live in a society where all religions are welcome.

This case is a reminder of the fine line public schools have to walk when celebrating holidays that have religious origins. Public schools are not expected to ignore the role of religion, or the religious roots of some of our holidays. But neither are they to endorse the majority view.

The case is Freedom from Religion Foundation v. Concord Community Schools, decided by the 7th Circuit on March 21, 2018.


Tomorrow: Turning down the transfer of a student with a disability. Risky?