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SEE YOU IN COURT! - January 2010

January 22, 2010

Authors: Thomas B. Mooney

The time between Christmas and New Year’s Day is so quiet and peaceful in the schools.  Mr. Principal was walking the halls of Acorn Elementary School, looking wistfully at the tattered decorations of the various Christmas celebrations held for the students and teachers right before the holidays.  The Christmas tree in the foyer outside his office still conveyed some Christmas cheer, but the “presents” underneath the tree and the life-size figure of Santa on the door to his office were both a bit worse for wear.  With the budget cuts, however, he was left with only a skeleton crew of custodians, and Mr. Principal wondered if it would be March before these holiday decorations were cleaned up and put away.


Christmas has always been a special holiday for Mr. Principal, and each year he did his best to convey the full spirit of this magic day to his students.  He asked his kindergarten teachers to help students with their lists for Santa, and in the older grades, teachers were asked to show students how to find the Macy’s discount coupons in the newspaper so that they can save money when they buy their Christmas presents.


The centerpiece of the holiday at Acorn Elementary School each year is the Christmas concert.  Shortly before the Christmas break, all the children are called down to the auditorium, where Mr. Principal and Melody Heard, the Music teacher, lead them in a carol sing.  The students love to sing Rudolph, the Red-Nosed Reindeer and Frosty the Snowman, of course, but their singing Silent Night and Ave Maria each year is particularly poignant.  As is the tradition, the carol sing ended this year with a rousing rendition of the Hallelujah chorus from the Messiah. 


Mr. Principal’s quiet musings on Christmas past were interrupted when the telephone rang.  “What on God’s green earth is going on there?” asked Mrs. Superintendent on the other end of the telephone.  My Inbox is full of complaints about how you make the students celebrate Christmas no matter what religion they are.”


“Those grinches should give it a rest,” responded Mr. Principal.  “If you can’t celebrate Christmas in the schools, what can you celebrate?”


Mrs. Superintendent was not mollified.  “Look, I have enough trouble as it is, and I can’t risk getting the Board involved in this.  Just knock it off with the Christmas celebrations.  Maybe you can have a “Winter Solstice” celebration.


“We are not Druids, you know,” responded Mr. Principal.  “There is nothing wrong with a little holiday cheer, and our students would be very disappointed if we change our tradition.  Who says we have to take ‘Christ’ out of Christmas?  Or Christmas out of our school altogether?  If you think you have trouble now, just wait!”


“Hmmmm,” Mrs. Superintendent pondered.  “I just don’t want to get sued.  Maybe I’d better create a committee to straighten this out.”


Can this committee save Christmas at Acorn Elementary?  Should it?


*        *        *


The issue of holiday celebrations in our schools comes up every year.  Interestingly, the United States Supreme Court has never given us any guidance on this subject, but the overview is clear – celebration of Christmas and other holidays is permitted in our schools.  However, our schools must be careful not to promote religion through such holiday celebrations.  In addition, educators will want to assure that school is a place where all children feel welcome.  On this score, it appears that Mr. Principal deserves a flunking grade.


From the late 1960s on, the courts have held that the Establishment Clause of the First Amendment requires that we avoid official endorsement of religion by our governmental agents.  There is, of course, a secular purpose in recognizing holidays in school, as part of our cultural heritage, but a holiday celebration that promotes a particular religion is not permitted.  Christmas poses particular challenges, because nowadays the holiday is both secular and religious.


The Second Circuit addressed holiday celebrations in school a few years back, when it considered a challenge to the policy of the New York City Public Schools on the subject.  The policy provided that schools could display secular symbols of the holidays, including menorahs and the star and crescent to recognize Chanukah and Ramadan respectively.  However, the policy expressly prohibited the display of crèches to recognize Christmas.  Skoros v. City of New York (2006). 


A parent challenged the policy as promoting other religions and as inhibiting her own, Christianity.  A divided court ruled, however, that menorahs and the star and crescent are secular symbols in this context and their display did not advance religion.  Other permissible secular symbols acknowledged by the court were Christmas trees, Christmas presents and Santas, as well as a Kwanzaa kinara (candelabra) and dreidels.  The prohibition against the display of crèches was permitted, the court ruled, because the school district had a legitimate concern about the display of a symbol that is expressly religious in nature. 


From this and other cases, we see that school officials have significant discretion in holiday celebrations in the schools.  That discretion extends to holiday concerts, which may include religious music as long as there is balance and no particular religion is promoted.  Indeed, the Skoros quoted with favor Justice Jackson’s statement in a case over sixty years ago:  “Music without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view. . . .   One can hardly respect a system of education that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being prepared.”


Given these precedents, it is clear that the issue of holiday celebrations is more a question of policy than law.  Boards of education are free to regulate such celebrations consistent with these principles, and in the absence of policy, principals and superintendents are free to establish appropriate rules to assure compliance with legal requirements and sensitivity to students of various faiths and cultures.


Finally, Mrs. Superintendent’s idea to create a committee to study this issue has merit.  In so doing, however, she should understand that she will have created a public agency subject to Freedom of Information Act requirements.


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