Freedom From Religion Foundation v. Concord Cmty. Sch., No. 15-00463 (N.D. Ind. Sept. 14, 2016)
Abstract: A federal district court in Indiana has ruled that a high school’s winter holiday show as performed in 2015, which included a passive Nativity scene and religious themed songs, did not violate the Establishment Clause of the First Amendment of the U.S. Constitution. The district court applying three separate, but related, tests determined that the show as performed in 2015 did not constitute endorsement of religion, that it did not coerce students into participating in a religious exercise, and that it had a secular purpose. With regard to Establishment Clause claims related to the 2014 show and the 2015 proposed show, it ordered the parties to submit supplemental briefs in order to determine if those claims were still alive and what remedy would be appropriate if they are still alive.
Facts/Issues: For over four decades Concord High School (CHS) has presented a winter holiday program known as the “Christmas Spectacular.” The Christmas Spectacular typically includes performances from two string orchestras, a symphony orchestra, a concert band, two jazz bands, five choirs, and small chamber groups. It also includes dance teams, students from the drama program, stage technicians, and involves over 600 students in total. The Christmas Spectacular is performed five times each year, including four public performances over a weekend, and a school-day performance for younger students in the district on a Friday.
The show runs about 90 minutes. The part of the show that has become the focus of the current litigation runs about 20 minutes. It includes a medley of ten different songs, each listed in the program under the heading “The Story of Christmas.” Each of the songs sung during this medley are religious hymns or carols with a Christian influence.
This segment begins with an announcement that states: “[l]adies and gentlemen: As we now present the Story of Christmas … .” Thereafter, a faculty narrator, reading from a script, tells the story of the birth of Jesus, reciting portions of the story as it appears in the Bible. Beginning with the fifth song, a Nativity scene appears on stage, portrayed by student performers dressed in appropriate costumes and standing in a Nativity set. Once they take their positions in the nativity scene, the students stand still and remain in that position for the final twelve minutes of the show.
In 2015, the Freedom From Religion Foundation (FFRF) filed suit against Concord Community Schools (CCS), in federal district court, on behalf of Jack Doe, a student at CHS, and his father John Doe. After the Does filed suit, CCS modified the Christmas Spectacular program by omitting the narration that included the Bible readings. It also added songs pertaining to Chanukah and Kwanzaa in the second half of the show. The Chanukah and Kwanzaa segments were likely to last three or four minutes each, while the Christmas segment, as before, was to last about twenty minutes, with the Nativity scene on stage for the final twelve minutes of that segment.
FFRF’s suit contended that the inclusion of a living Nativity scene and Bible readings as part of the Christmas Spectacular violated the Does’ First Amendment rights under the Establishment Clause. The suit asked that CHS omit the Nativity scene and Bible readings from that year’s Christmas Spectacular. FFRF filed a motion for a preliminary injunction to enjoin the performance of the live Nativity scene and the Bible readings. Because CHS had decided not to include the Bible readings as part of the show, FFRF just asked for the court to enjoin the living Nativity scene.
The district court issued a preliminary injunction prohibiting the school district from including its living Nativity segment in the holiday program at the high school. It concluded that the plaintiffs, a student and his father, had shown a likelihood of succeeding on the merits of their claim that inclusion of the living Nativity in the program constituted endorsement of religion in violation of the First Amendment’s Establishment Clause. The court also concluded that the plaintiffs had shown that the equitable factors and balances weighed in their favor.
CHS, in compliance with the order that the federal district court issued granting FFRF’s motion for a preliminary injunction, held its “Christmas Spectacular” without a live Nativity scene. Instead CHS presented a static Nativity scene using life-sized figurines. School officials adhered to the language in the court’s injunctive order, which prohibited CHS from “organizing, rehearsing, presenting or intentionally allowing to be presented any portrayal of a Nativity scene that is composed of live performers as part of its 2015 Christmas Spectacular shows.”
After the 2015 show, FFRF amended the legal complaint to assert Establishment Clause challenges against each of those three versions of the show—the show as it was performed in 2014 (and previous years); as it was proposed in 2015, prior to the preliminary injunction; and as it was actually performed in 2015. Both parties filed cross-motions for summary judgment.
Ruling/Rationale: The district court granted the school district’s motion for summary judgment on FFRF’s claim that the 2015 show as performed violated the Establishment Clause. The court placed the claims regarding the 2014 show and the proposed 2015 show under advisement, ordering CCS and FFRF to submit supplemental briefing on the issue of mootness. It also ordered FFRF to submit supplemental briefing as to the appropriate remedy, if any, for the alleged violations.
Addressing the issue of mootness, the court found that the parties’ filings to date were “inadequate to resolve this issue.” While acknowledging that a case could become moot because a party ceases the challenged activity on its own accord, it indicated that “[i]t is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’” It stressed that only when there is no question that the wrongful activity cannot reoccur “will a case become moot by voluntary cessation.”
The court noted that even though CCS has asserted “it will not return to the pre-2015 program,” it has failed to produce any evidence supporting that assertion. Citing Doe v. Elmbrook Sch. Dist., 658 F.3d 710 (7th Cir. 2011), it emphasized that “the lack of a present intent to resume the challenged conduct is not equivalent to a commitment not to resume that conduct.” It also stressed that the fact that CCS modified its 2015 show was insufficient on its own to render the challenge to the previous versions of the show moot.
The district court, therefore, concluded that at the present time CCS had not “met its heavy burden of establishing that the claims for prospective relief as to the 2014 and proposed- 2015 shows are moot due to voluntary cessation.”
It stated: “Accordingly, the Court directs the parties to submit supplemental briefs as to whether the Plaintiffs’ claims for prospective relief as to the 2014 and proposed-2015 shows are moot. The parties should also submit any additional evidence pertinent to that issue.”
It also directed the parties to address the claim for nominal damages as to the 2014 show in their supplemental filings.
The district court next turned to the question of whether the 2014 and proposed-2015 shows require additional briefing as to what remedy should be awarded if those claims are resolved on their merits in the FFRF’s favor. It directed “the parties to submit supplemental briefs addressing whether a permanent injunction is warranted if Plaintiffs prevail on these claims on their merits, and, if so, what specific injunction should issue.”
The court then addressed the merits of FFRF’s claim alleging that the 2015 Christmas show as performed violated the Establishment Clause. It applied the secular purpose test, the endorsement test and the coercion test, as outlined in Lemon v. Kurtzman, 405 U.S. 602 (1971), to determine whether the 2015 show as performed passed constitutional muster.
The district court began its analysis with a discussion of the endorsement test’s application to the 2015 show as performed. It stated that courts specifically ask “whether an objective, reasonable observer, ‘aware of the history and context of the community and forum in which the religious display appears,’ would fairly understand the display to be a government endorsement of religion.” It also noted that religious displays in classrooms “tend to promote religious beliefs, and students might feel pressure to adopt them.”
The district court acknowledged that when it issued the preliminary injunction it found that the living Nativity scene was improper. However, it stressed that it was “not because living nativity scenes are categorically impermissible, but because the context and extent of that particular presentation would convey an endorsement of religion.”
The court rejected FFRF’s argument that the only change from the proposed 2015 show and the one performed was the elimination of the living Nativity scene by replacing student actors with mannequins. It pointed out that in addition to eliminating the living Nativity scene, the scene was only on stage for under two minutes, while a single ensemble performed a single song. The court said, “Those changes fundamentally altered the nativity scene’s role in the show as compared to previous versions.”
The district court found that the 2015 show as performed limited the focus on the nativity scene in both terms of time, stage and elaboration. It found that as presented the Nativity scene “did not stand out from any other portion of the show.” Because the 2015 performance did not single out the nativity scene, it was presented on par with each of the other performances.
The court concluded: “Under those circumstances, even though the nativity scene is undoubtedly religious in nature, a reasonable observer would not perceive the show as expressing a preference for the nativity scene or endorsing its religious message.” It indicated that unlike previous performances, the 2015 show eliminated the narrative of the story of Jesus’ birth, which decreased the likelihood of a religious message being conveyed.
The district court found that by eliminating most of the religious cues, such as the songs, an observer would most likely perceive the remaining songs “as a number of mostly-familiar songs that relate to Christmas.” It also stated that “the show’s inclusion of Chanukah and Kwanzaa, and its spoken introductions of each of the holidays, further served to place those performances in a secular context.”
The court rejected FFRF’s contention that the wording of the introductions demonstrated a preference of Christianity. Instead, it concluded “[t]he introductions were each about the same length and included details about the background and celebration of the respective holidays, and adequately conveyed their educational messages.” According to the court, “[T]he student-read introductions underscored that the performances during this portion of the show were meant to observe holidays celebrated by different cultures and religions, and thus conveyed a message of inclusion and education rather than endorsing the religious or cultural content of any of the performances.”
Lastly, the district court determined that a reasonable observer would be presumed to have knowledge of the history of the annual event. It was the court’s belief that such an observer of the 2015 show would “perceive substantial changes in comparison to those shows; changes that fundamentally altered the character of the show and the message it conveys.” It also stated that the “same would be true even when comparing the actual 2015 show to the proposed show.”
The district court next applied the coercion test. Citing Doe v. Elmbrook Sch. Dist., 687 F.3d 840 (7th Cir. 2012) (Elmbrook II), it found that endorsement and coercion are “two sides of the same coin, i.e. government endorsement of religion applies indirect pressure on religious minorities to conform to the majority view.” The court concluded: “[h]ere, for the reasons just discussed, the Court does not find that the Christmas Spectacular as performed in 2015 endorsed religion, so the performers and audience members would not have been subjected to any indirect coercive pressure to conform to Christianity under that theory.” In addition, it found that given the manner in which the nativity scene was presented so as to avoid endorsing religion, “the performers who were singing while the nativity scene was on stage would not have reasonably felt as if they were being coerced to celebrate a religious message through their performance.”
Finally, the district court applied the secular purpose test. It found the 2015 show as performed, including its religious elements, demonstrated a secular purpose. It found the religious performances were blended with the secular ones in a performance celebrating the season rather than any religious beliefs. The court said, “Moreover, despite the religious content of the previous shows, that history does not necessarily reflect the absence of a secular purpose.” It concluded:
[T]he Court finds that the Christmas Spectacular that was actually presented in 2015 had secular purposes, and thus satisfied Lemon’s purpose prong, too. Accordingly, having found that the Christmas Spectacular satisfied each of the Establishment Clause tests at issue, the Court concludes that the show did not violate the Establishment Clause.
Freedom From Religion Foundation v. Concord Cmty. Sch., No. 15-00463 (N.D. Ind. Sept. 14, 2016)
[Editor’s Note: In December 2015, Legal Clips summarized an article in The Elkhart Truth reporting that CHS, in compliance with the letter of a federal district court order, held its “Christmas Spectacular” without a live Nativity scene, instead presenting a static Nativity scene using life-sized figurines. School officials adhered to the language in the court’s injunctive order, which prohibited CHS from “organizing, rehearsing, presenting or intentionally allowing to be presented any portrayal of a Nativity scene that is composed of live performers as part of its 2015 Christmas Spectacular shows.”]