IRISIMAGES/STOCK.ADOBE.COM

Public schools in the U.S. are a unique and treasured local institution. Unlike the centralized systems in other countries, the nation’s more than 13,500 districts are primarily funded and regulated by the state, with additional funding from local sources, and even less from the federal government. Our decentralized public education system allows our local public schools to reflect and serve their communities.

Over the nearly 200-year history of widespread public schooling in the U.S., school officials have embraced and participated in local traditions, including many with religious roots. Public schools close for when a large majority of their students’ families will be attending holiday celebrations and religious services. Teachers and administrators display décor around many holidays, nearly all with some kind of religious origin. Even holidays that have been highly secularized, such as Halloween, evolved from a religious tradition. (All Hallows’ Eve, preceding the feast of All Saints’ Day in Christianity.)

As schools and their communities enter the winter holiday season, questions arise about school decorations, performances, employee attire, holiday schedules, and more. Employees who display religious beliefs or symbols have their own rights under the free exercise and free speech clauses of the First Amendment, but a district has much more control to regulate those displays when the employee’s expression can be attributed to the public schools.

Now that the U.S. Supreme Court is making significant rulings on government and religion, it’s a good time to revisit the question: Does the U.S. Constitution say anything about religious holiday traditions in public schools?

The answer is: not directly. The First Amendment’s establishment clause prohibits government from making any “law respecting an establishment of religion.” For decades, this prohibition has been interpreted to create a wall of separation between church and state, as Thomas Jefferson famously noted.

But a majority of Supreme Court justices view the establishment clause as relatively weak. They see the clause as prohibiting government from coercing the public into religious observance or favoring one religion over another with public dollars. They do not believe that the clause requires government to avoid the appearance of endorsing religion.

In 2019, the court decided a case demonstrating this approach to religious symbols on public property. In American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019), it upheld a state commission’s display and maintenance of a large cross on public land erected as a memorial to soldiers who died serving in World War I. The court held that the display did not violate the establishment clause, and its removal would be perceived as aggressive, not neutral. The constitutionality of public entity’s displays of religious symbols, the court said, hinges on whether the symbols carry special significance, and over time have acquired historical importance separate from the religious meaning.

In the past, federal courts used the “Lemon test” to examine whether displays of religious symbols on public property violated the establishment clause. Using that test, which the court articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971), courts looked at whether a symbol’s display had secular purpose, and whether it had the primary effect of promoting or endorsing religion, to determine whether there was an establishment clause violation. The court decided that a nativity scene in a city’s holiday display did not violate the establishment clause [Lynch v. Donnelly, 465 U.S. 668 (1984)], but a nativity seen on the main staircase in a county courthouse did, because it “sends an unmistakable message that it supports and promotes the … crèche's religious message” [Allegheny Cnty v. Greater Pittsburgh American Civil Liberties Union, 492 U.S. 573 (1989)]. At least one federal court of appeals upheld a public school district’s policy prohibiting the performance of celebratory religious music at school-sponsored events [Stratechuk v. Bd. Of Educ of, South Orange-Maplewood Sch. Dist., 587 F.3d 597 (3d Cir. 2009)].

Public school holiday performances also have been subject to court challenges. In general, courts have held that holiday displays in public schools may include religious symbols if the displays are temporary, require no active participation in any religious activity, include diverse religious, cultural, and ethnic symbols, and support valid educational goals.

In 2018, a federal court of appeals ruled that an Indiana school district’s 2015 revision of its winter holiday show did not violate the establishment clause. In that case, the school district had revamped its longstanding show to remove a great deal of Christian Christmas content and had added two songs from other religions in response to the filing of the litigation. Interestingly, that ruling applied a variety of tests, including the now-defunct Lemon test to find that a reasonable observer of the show would find no endorsement of religion or a religious message. It also determined that the show had no coercive effect because at no point in the program was there a religious activity that required the participation of the performers or the audience. But the court indicated that the challenge to the original show was not moot.

Now, under American Legion and other Supreme Court rulings, longstanding displays and performances that have acquired meaning apart from the religious one may withstand constitutional challenges based on the establishment clause. But any practice will have its own story. School officials should consult with their attorney member of the NSBA Council of School Attorneys to assess whether holiday practices pass constitutional muster under the most recent Supreme Court rulings.

____________________________________________________________________________________________________________________

Sonja Trainor (strainor@nsba.org) is NSBA’s managing director of legal advocacy.