Education Law Insights

It’s Beginning to Look a Lot Like a Lawsuit: The Acceptable Role of Religion in Public School Winter Musical Programs and Toy Drives

Posted by Brian Crowley on November 26, 2013

Thanksgiving is not yet here, but school districts across the country already are grappling with an important question regarding later, religious holidays like Christmas. The question:  Can religious content be included in winter programming in public schools?

The inclusion of religion-themed content in musical programs and charity drives has been a hot button issue for schools this year. For example, a New Jersey school district recently came under fire for banning all Christian music from its elementary schools’ winter concerts. After pressure from a pro-religion organization, Alliance Defending Freedom, the school district reversed course and said it would allow Christmas songs in the concerts, after all. Similarly, a Colorado school district reportedly broke ties with a Christian organization that collects boxes of toys from students to send to impoverished children overseas. A secular-rights group, the American Humanist Association, fueled the change in policy by challenging the practice through a letter to the school district.

The organizations that either support or challenge the inclusion of religious content in school programming often portray the issue as simple. For instance, the Alliance Defending Freedom recently sent a letter to 13,000 school districts across the country suggesting that the right to include religious content in school musical programs and toy drives is nearly absolute. But as with most constitutional issues in public schools, the reality is that decisions must be made on a case-by-case basis with critical attention to the rights on both sides.

On the one hand, the United States Supreme Court has never directly addressed the issue of religious content in winter programming for public schools. And the federal courts that have addressed the use of religious content in musical programming both inside and outside the classroom consistently have found that religious content could be included if not motivated wholly by religious considerations and part of a secular educational program. For this reason, in most cases the inclusion of religious-themed music in a musical program that contains other secular music will not violate the Establishment Clause.

On the other hand, the Supreme Court has interpreted the Establishment Clause of the First Amendment of the Constitution to prohibit any governmental action that appears to endorse religion or that excessively entangles government in religious activities. This means that the programming must have a secular purpose, have a primary effect that neither advances nor inhibits religion, and not excessively entangle the state with religion. If a public school activity appears motivated by religious considerations, it may violate the Establishment Clause. Based on this reasoning, participation in a Christian toy drive that collects materials for the express purpose of spreading the Christian message and that includes proselytizing messages in the materials sent to needy children might create constitutional concerns.

Striking this balance can be difficult, and school leaders should be aware that decisions they make in this arena can lead to serious challenges from within their communities. As is often the case with school constitutional issues, consultation with an attorney on the facts of the case is typically advisable.

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