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Oh Happy Holidays
Witold Walczak, December 14, 2001 -- It’s that time of year again when confusion reigns in public schools. Can we say the word Christmas? Can we display a Creche or a Menorah? Can we sing ‘Deck the Halls With Boughs of Holly’? Can we have a party with cookies that have red and green frosting?
  These questions pose a legal minefield for teachers and administrators. Although the answers to these and other questions is usually something unhelpful like, ‘it depends,’ in reality evaluating whether particular practices involving religion during the holidays (and at other times) are constitutionally appropriate is not that difficult. First some background.
  Teaching students about religion, as opposed to the teaching of religion, is not only constitutionally permissible, it is important. Western European history would be incomplete without studying the Crusades, the Inquisition or the Reformation, as would American history without studying the Puritans, Quakers or the constitutional debates over the religions clauses themselves. Similarly, excising religious literature, drama and music from the curriculum would result in an incomplete picture.
  Studying religion, comparatively and historically, is important to understand our nation and our world. It promotes cross-cultural understanding essential to democracy and world peace, as well as fosters an appreciation for the importance of religious freedom generally. Knowledge about religions is not only characteristic of an educated person, but is also necessary for understanding and living in a diverse world.
  In sum, schools can and should teach about religion, but they may not teach religion itself. This distinction is critical. The approach must be academic, not devotional. The goal is to make students aware of various religions, not to instill their dogma. Teachers should expose students to ideas, not impose religious views. Teachers also must present material in an objective, non-judgmental and balanced fashion, being careful not to inject their own views. Teachers should teach about religion fairly and objectively, neither promoting nor denigrating religion in general or specific religious groups in particular.
  Let me suggest that whenever you are deciding whether particular religious content is constitutionally permissible, or if it is being presented in an appropriate way, that you ask the following three questions:
  (1) Why am I doing this? You must have a sound educational purpose. The actual purpose of any program or display involving religious material must be to promote secular understanding. Any other purpose is impermissible. If the purpose is to promote or celebrate religion generally or one faith’s practices or beliefs specifically, it is unconstitutional.
  And the Supreme Court has expressly ruled that courts reviewing constitutional challenges must identify the school’s “actual” purpose behind the program or exercise. Reviewing courts must make sure that it is not a “sham purpose,” or pretext, for promoting religion. Trying to disguise a religious program as having an educational purpose when overall the evidence, including history and other context, point to this being an attempt to advance religion will not protect you.
  (2) How will others perceive this exercise? Will it appear to promote or endorse religion or a particular faith or practice? Will it appear to favor one religion at the expense of others? The program or display cannot have the primary effect, or give the appearance, of promoting religion, either generally or one faith in particular. If a reasonable person would perceive that the school or a teacher or administrator is endorsing religion or a faith, the presentation or display is likely unconstitutional.
  (3) Last, but not least, will it make children of different, minority faiths or no faith feel like outsiders? Children, both younger and teenagers, are very sensitive to being different and want to fit in. If you have an exercise that will make children of different, minority faiths or no faith feel uncomfortable, then the practice is probably unconstitutional.
  And the Supreme Court has repeatedly cautioned school officials that they must be very sensitive to this problem because even seemingly minor religious exercises or messages of endorsement are constitutionally significant:
  “What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.”
  No religious practice or endorsement is minor or trivial because religion generally is serious business. It is no less important to members of different or minority faiths.
  Applying these tests, let’s look at various holiday practices.
  Can you talk about Christmas? Yes, because teaching about religious holidays is permissible. But celebrating religious holidays is not. So a “Christmas party” or a “Christmas play” would be inappropriate. Teachers may focus on how and when various holidays, including Christmas, are celebrated, their origins, histories and generally agreed-upon meanings. If the presentation is objective and sensitive, neither promoting nor inhibiting religion, this study can foster understanding and mutual respect for differences in belief. But remember, the presentation must be balanced, which means you can’t just talk about Christmas. That would give the appearance of endorsement. Focus on holidays of many different faiths, and be sure to include holidays that occur in months other than December.
  Can you display religious symbols? Yes, they may be used as a teaching aid or resource, provided they are used only as examples of cultural or religious heritage. They may be displayed only on a temporary basis as part of the academic lesson being studied. Again, as with the study of holiday traditions, symbols from various religions should be included in any display. But putting up a Nativity Scene, a Menorah, or a Crescent simply as decoration, when it is not part of the immediate lesson plan and is left on display for more than a couple of days would be unconstitutional.
  Song selection for concerts gets particularly tricky. Religious music is historically significant, and a good bit of Western (and Eastern for that matter) music is religious, notably Christian. Again, think about the three-part test. There must be an actual pedagogical basis for each song. The audience cannot be made to feel like the program is religious. And choir or band members of different, minority faiths or no faith should not feel uncomfortable singing or playing the songs. It certainly would be problematic to require band or chorus members to participate in a program that is not principally secular. There is a clear difference between singing “Deck the Halls With Boughs of Holly” and songs that intone “Come All Ye Faithful” to honor Allah (or Jesus).
  Schools should also consider carefully whether to stage concerts and music presentations during December. Pressure from elected officials and parents often pushes music teachers to include “seasonal” selections, which typically include “Christmas music.” For that reason, many school district’s have chosen to hold “Winter Concerts” in January. That avoids the temptation and political pressure to include large numbers of religious songs that make minority students and their parents uncomfortable (and that violate the Constitution).
  Parties before the December vacation (or any other time) are allowable so long as they are not presented as a celebration of a religious holiday. Most children appreciate parties regardless of the theme. Even in December, many non-religious themes can be used to justify the occasion: pre-vacation warm-up, reward for hard semester, winter welcome, etc. The presentation is key. Calling it a “Christmas” party is an endorsement of a particular faith’s holiday and that’s impermissible. Having the same party for the secular reasons mentioned above is okay.
  Parties designed and intended to educate students about different cultural holiday traditions that includes representative religious displays, costumes, food, etc., would be permissible, but again it must be presented in a balanced and objective way. If you do this only for Christmas, then it will appear as an endorsement of that particular holiday. You will need to have similar programs to educate students about the holidays of other religious traditions. Neither parents nor students should be made to feel that the school is endorsing any particular faith, practice or holiday.
  And, on the most pressing question raised by a school board member last year? Cookies with red and green frosting would seem to meet the test as well. There is nothing inherently wrong with red or green, and the colors do not become taboo in December. But again, presentation is key. If they are “Christmas” cookies used to celebrate Christmas, no go. On the other hand, if they are part of a food festival exposing children to various cultural and religious traditions, then they would be okay. If they are brought to a “winter party” and there is no reference to Christmas, you won’t be hearing from the ACLU.
  In closing, church-state cases are often fact-specific, but the three-part test is a good guide. If you have a particular program or practice and aren’t sure whether it’s constitutional, you can always feel free to consult the ACLU’s Pittsburgh office. We have on many past occasions worked with school superintendents and principals to help them evaluate the situation, and even fix problems before they happen. We’d be more than happy to work with other districts as well. Good luck and happy holidays!
Witold Walczak is the Executive Director, Pittsburgh Chapter of the American Civil Liberties Union. This article also appeared in a Western PA Superintendent newsletter.