http://district49.blogspot.com/2009/07/d49-commitment-to-religious.html

Legal Memorandum
Per File ACD-R

Martin Luther King’s Birthday, Thanksgiving and Christmas are among 10 federal holidays recognized as an element of our rich American tradition and culture. These holidays are recognized and observed at all levels of government including our own.

In particular, however, the Christmas holiday is subject to numerous practical concerns, at both the local and national level. In April of 2006 after discovering that a volunteer committee had independently invoked institutional censorship of Christmas from district calendars, in accordance with federal law, the Falcon School District 49 board of education voted to restore the century old tradition of recognizing Christmas break on all district calendars. Thus, teachers and staff of Falcon School District 49 are encouraged to celebrate the Christmas holiday because of its significant and unique place as the centerpiece of all American holidays. However, there remain a variety of questions and concerns regarding the appropriate and lawful practices related to this holiday.

In schools nationwide, there are common questions and misperceptions related to observing the Christmas holiday to include its history and associated cultural activities. Each year the district encounters a broad array of responses regarding proper observance of this federal holiday. This is a matter of actual controversy as staff, teachers, parents and students attempt to discern between what might constitute establishment of religion or a failure to accommodate religion under the Constitution of the United States.

Thus, in order to avoid future misunderstandings, the following memo sets forth guidance regarding permissible, non-permissible, and mandatory actions related to federal holidays that have religious significance to some, particularly the Christmas holiday. Because the questions almost always are related to specific practices, a FAQ of the most common issues arising in connection with this holiday is set forth below:

1) May public schools have students sing religious Christmas carols?

Yes. Carols may be sung in public schools without offending the Constitution. Religious Christmas carols may be sung by individual students or by a group of students during school activities such as choir, Christmas programs and other events. However, this only is true if the songs are included for a secular purpose such as their musical quality or cultural value or if the songs are part of an overall performance including other holiday songs relating to Chanukah, Kwanzaa, or other similar holidays. Further, it is permissible to conduct “Christmas programs” or “Christmas parties” in the same way that other federal holidays are observed through such programs and events. Note that Public schools may not require students to sing Christmas songs whose messages conflict with the students’ own religious or nonreligious beliefs . Although challenges have been brought, public schools have successfully defended against such constitutional challenges. See Bauchman v. West High School, 132 F.3d 542, 554 (10th Cir. 1997).

2) A music teacher is planning a Christmas program. She wishes to sing six songs, 3 contain religious themes; Hallelujah chorus, Silent Night and Oh Holy Night, and 3 secular non religious themes; Jingle Bells, We Wish You a Merry Christmas, and Rudolf the Red Nosed Reindeer. May this be a lawful program selection?

Yes. There are a couple ways that the Christmas program can be supported. First, any songs that fit the traditional Christmas theme are acceptable (and arguably necessary to a program focused on this holiday) because they have strong traditional and musical merit. Alternatively, they can be added for their religious purpose if the whole concert comprises a more broad-ranging holiday theme. The program is lawful when the underlying intent meets either of these requirements. In general, if a religious song is included for its cultural or musical merit, there is no requirement that songs from other religions be included. See Bauchman v. West High School, 132 F.3d 542, 554 (10th Cir. 1997).

3) I would like to decorate the hallway area near our schools front entrance with signs of the season, a banner that says “Peace on Earth – Good Will to Men” a Christmas tree, Santa and his reindeer, and a manger with a baby Jesus and the 3 wise men. If I add a Star of David or a menorah, does this meet the required religious neutrality test?
Probably, yes. Public school officials may display religious symbols such as a crèche or nativity scene without offending the Constitution if they have a clear educational reason for doing so. The Supreme Court has held that a nativity scene display is constitutional if displayed for legitimate secular purposes, such as to celebrate the holiday and to depict the origins of the holiday. Lynch, 465 U.S. at 681. Stated differently, it may be a legitimate secular purpose to display religiously themed decorations that celebrate the seasonal holidays, including Christmas, particularly if the religious symbols of other predominate seasonal holidays are displayed. Lower federal courts have also allowed public schools to include religious and Christian symbols in Christmas displays, school calendars, and Christmas programs. See, e.g., Sechler v. State College Area Sch. Dist., 121 F. Supp. 2d 439 (M.D. Pa. 2000); Clever v. Cherry Hill Twp. Bd. of Educ., 838 F. Supp. 929 (D.N.J. 1993). In a recent case, a court held that the school’s holiday display and song program, which contained religious symbols, books, and songs, did not violate the Establishment Clause. Sechler, 121 F. Supp. 2d at 453.

4) What rights do students enjoy in connection with Christmas and/or religious expression in general?

Public school students’ written or spoken personal expressions concerning the religious significance of Christmas (e.g., T-shirts with the slogan, “Jesus Is the Reason for the Season”) may not be censored by school officials absent evidence that the speech would cause a substantial disruption. In other words, students should be free to say “merry Christmas” (and teachers are free to respond in kind), and to write and communicate about religion in the same manner that they may address other topics. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969); Nixon v. Northern Local Sch. Dist. Bd. of Educ., 383 F. Supp. 2d 965 (S.D. Ohio 2005).

5) May teachers discuss Christmas, its cultural significance, history and origins in class?

Public schools may teach students about the Christmas holiday, including its religious significance, so long as it is taught objectively for secular purposes such as its historical or cultural importance, and not for the purpose of promoting Christianity. See Stone v. Graham, 449 U.S. 39, 42 (1980); Grove v. Mead Sch. Dist., 753 F.2d 1528, 1534 (9th Cir. 1985).

6) Is Falcon District 49’s decision to declare “Christmas break” a constitutional act?

Government recognition of Christmas as a public holiday and granting government employees a paid holiday for Christmas does not violate the Establishment Clause of the First Amendment. Ganulin v. United States, 71 F.Supp. 2d 824 (S.D. OH 1999), aff’d 2000 U.S. App. Lexis 33889 (6th Cir. 2000). See also Bridenbaugh v. O’Bannon, 185 F.3d 796 (7th Cir. 2000); Koenick v. Felton, 190 F.3d 259 (4th Cir. 1999).

7) What rights do teachers have to individually express their opinions and beliefs about Christmas and religion?

So long as teachers are generally permitted to wear clothing or jewelry or have personal items expressing their views about the holidays, teachers may not be prohibited from similarly expressing their views by wearing Christmas-related clothing or jewelry or carrying Christmas-related personal items. Public school teachers may send Christmas cards to the families of their students so long as they do so on their own time, outside of school hours. Neither public nor private employers may prevent employees from decorating their offices for Christmas, playing Christmas music, or wearing clothing related to Christmas merely because of their religious content so long as these activities are not used to harass or intimidate others. See Tinker, 393 U.S. at 506 (“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”). See also Tucker v. California Dep’t of Ed., 97 F.3d 1204 (9th Cir. 1996) and Nichol v. Arin Intermediate Unit 28, 268 F. Supp. 2d 536 (W.D. Pa. 2003). § 42 U.S.C. 2000(e)(j); Warnock v. Archer, 380 F.3d 1076, 1082 (8th Cir. 2004); Tucker v. California Dep’t of Ed., 97 F.3d 1204 (9th Cir. 1996); Brown v. Polk County, 61 F.3d 650, 659 (8th Cir. 1995).

May Falcon District 49 schools and administration buildings decorate using traditional Christmas decorations and themes?

Yes. Government entities such as our schools absolutely may erect and maintain celebrations of the Christmas holiday, such as Christmas trees and Christmas light displays, and even may include religious-themed decorations when the intention is not to promote the religious content and such decorations are placed in context with other symbols of the Holiday season as part of an effort to celebrate the public Christmas holiday through its traditional symbols. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989); Lynch v. Donnelly, 465 U.S. 668 (1984); ACLU v. Schundler, 168 F.3d 92 (3rd Cir. 1999); Amancio v. Town of Somerset, 28 F.Supp. 2d 677 (D.C. Mass. 1998).

9) Has our government taken any position on these matters?

Yes.

H RES 847 2/3 YEA-AND-NAY 11-Dec-2007 7:02 PM
QUESTION: On Motion to Suspend the Rules and Agree, as Amended
BILL TITLE: Recognizing the importance of Christmas and the Christian faith.
WASHINGTON, December 11, 2007
The U.S. House passed a resolution recognizing the importance of Christmas and the Christian faith by a vote of 372 to 9. This resolution in part acknowledged “the international religious and historical importance of Christmas,” due to the fact that it is “a holiday of great significance to Americans.”