As the holiday season is fast approaching, it is important that school districts prepare for, and be aware of, what can annually become the controversial issue of appropriate holiday displays and programs.

Since 1962 in the case of Engel v. Vitale, the courts have been clear that the U.S. Constitution prohibits public schools from proselytizing religion to children. However, determining what that means in terms of holiday celebrations can be a daunting task. At issue, is the balance between one’s freedom of religion and the prohibition against government-endorsed religion.

School districts, as state actors, must look to three pertinent provisions of the 1st Amendment to the U.S. Constitution: the Establishment Clause, the Free Exercise Clause and Free Speech Clause.

While the Establishment Clause prohibits schools from establishing religion by acting with a religious purpose or effect or by entangling themselves with religion or endorsing religion, the Free Exercise Clause requires that public schools do not impinge upon the free exercise of any particular student’s religious beliefs or expression. Lastly, the Free Speech Clause prohibits “state actors” such as public school districts, from “abridging the freedom of speech.” Clearly, the devil is in the details when it comes to balancing these three constitutional guarantees.

To determine whether a public school violates the Establishment Clause, the courts apply a three-part test developed by the Supreme Court in a 1971 case, Lemon v. Kurtzman. While almost 50 years old, the Lemon test continues to be the standard for assessing Establishment Clause violations by a governmental entity.  The standard requires that the state action comply with all of the elements of the following three-pronged test:

  1. There is a legitimate, secular, non-religious purpose for an activity;
  2. The primary effect of the activity neither advances nor hinders religious belief or practice; and
  3. The activity does not foster excessive entanglement between the governmental entity and religious concerns.

Since that time, the U.S. Supreme Court has upheld public school policy statements and rules about  holiday displays and religious music programs at public schools that permitted observance of holidays having both a religious and secular basis. The court has consistently encouraged tolerance of diverse religious views and recognized that advancing “students’ knowledge and appreciation of the role religion has played in the social, cultural and historical development of civilization” as an educational goal of the district.

The court further found no violation of the Free Exercise Clause and noted that public schools did not need to remove all materials from the curriculum that could offend any religious sensibilities nor could it compel participation in religious activities.

In 1993, the Cherry Hill school district’s policy governing the use of cultural, ethnic and religious themes in the educational program was challenged. The policy permitted three types of displays including religious symbols used as part of a planned program of instruction, displays of calendars in each elementary and junior high classroom and in one central location in each building and displays dealing with cultural, ethnic, or religious customs and traditions during the appropriate season.

If a religious symbol was displayed, it had to be accompanied by at least one other religious and cultural or ethnic symbol. The district court applied Lemon to the Establishment Clause claims and found no constitutional violation, noting that the purpose of the policy was the advancement of a secular program of education, not religion. That court emphasized that the displays were temporary and did not force children to participate in any religious event and opined that the absence of any display could indicate hostility toward religion.

As such, it is imperative that school district’s policies and rules: 1) are not promulgated to serve a religious purpose; 2) may not impinge upon religious expression by students; and 3) be adopted with educational motives.

School districts are encouraged to review their policies with regard to holiday and religious celebrations with their board attorney or discuss with the NJSBA Legal and Labor Relations Department at (609) 278-5254.

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