“Silent Night” and other religious songs will remain off the program at holiday concerts in South Orange-Maplewood schools after the U.S. Supreme Court declined today to take up an appeal of the districtâ€™s ban on celebratory religious music.
The nationâ€™s highest court ended a case that dates back to 2004, by deciding not to hear the petition brought by Michael Stratechuk, a parent who sued over the policy that bars performance of religious songs. The 3rd Circuit Court of Appeals upheld the ban last year, and Stratechuk attempted to take the case to the higher court.
“Thereâ€™s nothing more, short of the school district changing its policy. Thereâ€™s no other legal avenue to take,” Stratechukâ€™s attorney, Robert J. Muise of the Thomas More Law Center in Ann Arbor, Mich., said today. “Iâ€™m sure he will be disappointed, but he put up the fight, and I think it was the right fight.”
Stratechuk, a musician whose two sons were in seventh and ninth grades when he brought the case, could not be reached for comment.
In a statement, school Superintendent Brian Osborne said the policy “was adopted to promote an inclusive environment for all students in our school community. We have always felt our policy was constitutional and are pleased with the outcome.”
In the 1990s, South Orange-Maplewood adopted a policy banning the use of religious songs in school performances. But the district stirred controversy in 2004 when a memo was issued to clarify the policy, extending it to vocal and instrumental performances.
The policy came under fire from conservative groups and drew protests in South Orange and Maplewood. Opponents organized an “illegal” night of Christmas carols, Hannukah songs and other musical pieces in December 2004, according to Muiseâ€™s petition to the U.S. Supreme Court. The policy covered religious songs of all faiths, but Muise said his clientâ€™s case was brought on behalf of Christmas songs.
“Youâ€™re not even going to allow the instrumentals of the music that doesnâ€™t contain the words,” Muise said. “People in the audience would sing the songs in their minds?”
The case was brought under the Establishment Clause of the First Amendment, which requires the government to be neutral toward religion, Muise said.
“The whole idea of diversity and tolerance, you learn those traits by understanding other peopleâ€™s traditions and religious traditions,” he said.
The South Orange-Maplewood policy, which says its goal is to “foster mutual understanding and respect for the right of all individuals regarding their beliefs,” permits religious music to be taught in the curriculum. But the music cannot be used to celebrate religious concepts, events or holidays.
Muise said by banning it from performance, the district essentially kept religious songs out of the curriculum.
“Teachers tend to have students learn in class what theyâ€™re going to perform,” he said.
He also said that despite the districtâ€™s stated policy, prior to 2004 some holiday concerts did contain Christmas music. In 2003, for example, according to the petition, one holiday concert included “Joy to the World,” “O Come all Ye Faithful,” “Hark, the Herald Angels Sing” and “Silent Night.”
He said the policy also prohibits “any printed programs for any Holiday concert to have any graphics which refer to the holidays, such as Christmas trees and dreidels.”