Freedom from Religion Foundation v. Concord Community Schools, 885 F.3d 1038 (7th Cir. 2018)

First Amendment Establishment Clause

General Interest to School Officials
Case: Freedom from Religion Foundation v. Concord Community Schools, 885 F.3d 1038 (7th Cir. 2018)
Date: Wednesday, March 21, 2018

In 2015, the Freedom from Religion Foundation brought suit against Concord Community Schools, claiming that its annual “Christmas Spectacular” holiday show, in which hundreds of students participated, violated the First Amendment’s Establishment clause. Originally, the first half of the show consisted of non-religious pieces, but the second half of the show contained a 30-minute segment called the “Story of Christmas,” which included religious songs, the reading of New Testament passages, and student actors who posed for a nativity scene. At the lower district court level, Concord volunteered to make two changes to the program, including removing the scriptural reading from the nativity scene and adding a Hanukah and Kwanzaa song at the beginning of the second half of the show. The lower court did not find these proposed edits to be adequate, and enjoined Concord from performing the proposed version of the show. After that ruling, Concord again modified the second half of the show. Specifically, the first 10 minutes of the second half was spent explaining and performing a song for Hanukah and another song for Kwanzaa. For the remaining 20 minutes, students performed Christmas songs that were more religious in nature. During one of the songs, a nativity scene appeared on stage for two minutes, but mannequins instead of student actors were used for posing, and there were no scriptural readings. The Freedom from Religion Foundation challenged this latest version, but the Seventh Circuit found that the show had been changed enough such that it no longer violated the Establishment Clause. First, the court noted that the religious nature of the nativity scene and songs did not come off as an endorsement of religion because they only made up a fraction of the Spectacular, and the first half of the show was secular in nature. Second, the court found that there was no religious coercion in the performance; there was no prayer or distribution of religious literature, and the show was performed in a school auditorium rather than a church or other sanctuary. Finally, the court held the Spectacular did not have an unlawful religious purpose because its primary purposes were to provide opportunities for performing arts students and entertainment at a winter concert. The court acknowledged this was a close case, but considering the entire context, the show was able to pass constitutional muster.