Celebrating Holidays or Holy Days?

Abstract

South Orange-Maplewood, N.J., is religiously and ethnically diverse community in the New York City suburbs. school district's policy for holidays requires secular, educational treatment. December concerts that featured Christmas and Hanukkah songs elicited few objections. However, after the December 2003 concert, mother complained in writing to the superintendent, pointing out that board policy prohibits music programs from having a orientation or focus on holidays. superintendent responded by saying that the concert didn't promote particular religion and that recognizing all religions in such concert would be difficult. That apparently didn't resolve the parent's concerns because she pressed board members about this issue. In March 2004, during the superintendent's performance review, the board called for stricter enforcement of its policy. By October 2004, the music director indicated in memo that musical groups would perform music that didn't celebrate holiday and discontinue selections associated with holidays, including the traditional winter performances of Christmas carols and the gospel choir. That prompted various parents, teachers, and other local figures to petition the board to honor what they termed religious tolerance. December 2004 concert included general music, such as Vivaldi's Gloria in Excelsio and the Hebrew folk song Hava Nagila, along with secular holiday songs, such as Jingle Bell Rock, Rudolph the Red-Nosed Reindeer, and Frosty the Snowman. After the December 2004 concert, parent Michael Stratechuk, with legal representation from the American Catholic Lawyers Association, filed suit in federal court, claiming that the district had violated 1) the First Amendment's Establishment Clause by conveying disapproval of and hostility toward religion, including Christianity, and 2) First Amendment freedom of expression by depriving him and his children of their rights to academic freedom and learning. district court eventually concluded that the board policy didn't violate the First Amendment establishment or expression clauses. Stratechuk appealed. Decision of the Court On Nov. 24, 2009, the Third Circuit affirmed the lower court's decision. (1) First, the court concluded that the district's policy and conduct did not violate either of the two leading judicial tests, or criteria, for applying the Establishment Clause. saving grace for the district was its decision to allow music in the and at the concerts, thus demonstrating neutral purpose rather than position that favored or disfavored religion. Second, the court more easily disposed of Stratechuk's freedom of expression claim, concluding that students have access to celebratory music in the classroom within the framework of the curriculum and that previous case law supported the board's action. On March 29, 2010, Stratechuk petitioned for U.S. Supreme Court review. Court has not yet announced whether it will grant the petition, but the odds are clearly against doing so. Lessons of the Case winter holidays present many situations in which public schools must balance the First Amendment's Establishment Clause and its opposite protections of free exercise of religion specifically and freedom of expression more generally. As this column has observed more than once, the variance in the local community's composition, the case's unique facts, and the individual judge's background all affect the outcome in religion cases. Nevertheless, the principal criterion is predictable: Would reasonable, dissenting student perceive the challenged activity as having primarily effect or being an endorsement of religion? protection is for the individual, not the majority; as the Third Circuit observed, The constitutionality of school board's policy toward religion cannot be decided by reference to popular opinion. …