Freedom from Religion Found., Inc. v. Concord Cmty. Sch.

• Decision Date: 21 March 2018
• Docket Number: Nos. 17-1683 & 17-1591,s. 17-1683 & 17-1591
• Citation: 885 F.3d 1038
• Parties: FREEDOM FROM RELIGION FOUNDATION, INC., et al., Plaintiffs-Appellees, Cross-Appellants, v. CONCORD COMMUNITY SCHOOLS, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

885 F.3d 1038

FREEDOM FROM RELIGION FOUNDATION, INC., et al., Plaintiffs-Appellees, Cross-Appellants,

v.CONCORD COMMUNITY SCHOOLS, Defendant-Appellant, Cross-Appellee.

Nos. 17-1683 & 17-1591

United States Court of Appeals, Seventh Circuit.

Argued October 31, 2017

Decided March 21, 2018

Gavin M. Rose, Attorney, ACLU of Indiana, Indianapolis, IN, Samuel Troxell Grover, Ryan Jayne, Attorneys, Freedom From Religion Foundation, Madison, WI, Daniel Mach, Heather L. Weaver, Attorneys, American Civil Liberties Union, Washington, DC, for Plaintiffs-Appellees, Cross-Appellants.

Anthony W. Overholt, Attorney, Frost Brown Todd LLC, Indianapolis, IN, Timothy S. Shelly, Attorney, Warrick & Boyn, Elkhart, IN, for Defendant-Appellant, Cross-Appellee.

Before Wood, Chief Judge, and Easterbrook and Sykes, Circuit Judges.

Wood, Chief Judge.

Since ancient times, people have been celebrating the winter solstice, which occurs around the third week of December in the Northern Hemisphere. Many of these celebrations are religious in nature, and so in the modern United States they have led to a depressingly steady stream of First Amendment challenges, in which one party wishes to express its religious views in the public sphere and the other party asserts that the Establishment Clause would be violated by the display.

Our case fits that pattern to a T. It arose in Elkhart, Indiana, which is served by the Concord Community Schools. For nearly half a century, Concord High School spread holiday cheer with a "Christmas Spectacular"—a winter concert featuring an elaborate, student-performed nativity scene. Things changed, however, when some parents, a student, and a non-profit organization objected to what they perceived to be an impermissibly religious program. The school suggested that the 2015 version of the show would reflect modest alterations to the 2014 version. After the district court preliminarily enjoined the school from putting on even the revised show in 2015 as proposed, Concord scrubbed more of the religious content from the show.

The district court agreed with the plaintiffs that the 2014 Spectacular and the version initially proposed for 2015 violated the First Amendment's Establishment Clause and awarded nominal damages. But the court sided with the school in finding the latest version of the show constitutional. Because we also find that the school's second round of adjustments to the Spectacular were enough to push it over the line for compliance with the Constitution, we affirm the judgment of the district court.

I

A

For decades, students at Concord High School have staged and performed the Christmas Spectacular, a holiday show featuring students' choral, instrumental, and dance performances. The students not only perform, but also handle the design and creation of costumes, sets, and props. They spend months preparing for the annual show in their performing arts classes and extracurricular activities. Concord's production is extraordinary: it involves about 600 students and puts the lie to those who suggest that arts and music are not important parts of a high school program. While the Spectacular showcases the talents of Concord students, it also celebrates the holiday season, with a particular focus on Christmas.

In August 2015, the Freedom From Religion Foundation, Inc. ("FFRF"), a non-profit organization focused on defending the constitutional line between church and state, wrote a letter to the school's superintendent on behalf of one of FFRF's members, a parent of a Concord High School student. FFRF expressed concerns about the religious nature of the Spectacular's second half. After the superintendent found no merit in the parent's position, FFRF, along with the parent and his child, sued the school, alleging that the Christmas Spectacular violated the First Amendment's Establishment Clause. Two more parents later joined the suit. Because the school made changes to the program over the course of litigation, we describe each of the different iterations at issue.

Although the first half of the show, which featured non-religious pieces tied to an annual theme, varied from year to year, the second half did not. For 45 years (through 2014), Concord followed a consistent script, to which we refer as the "2014" show. The 30-minute second half contained a 20-minute segment called "The Story of Christmas." This section included religious songs interspersed with a narrator reading passages from the New Testament. Student actors walked across stage (as if going to Bethlehem) before posing for a nativity scene; in all, this lasted about 12 minutes.

Plaintiffs took issue with this portion of the Spectacular in their initial letter and subsequent lawsuit. That suit, filed in October 2015, asked for declaratory and injunctive relief, as well as nominal damages and attorneys' fees. With December fast approaching, the plaintiffs asked the district court for a preliminary injunction to prevent the school from performing the 2014 version of the second half in the December 2015 show. Before the court ruled on plaintiffs' motion, Concord volunteered to make two changes to the 2015 program (the "proposed" version). First, it said that it would remove the scriptural reading from the nativity scene, which otherwise would remain unchanged. Second, it added two songs to kick off the second half: "Ani Ma'amin" and "Harambee." These performances were intended to represent Hanukkah and Kwanzaa.

The district judge concluded that the proposed edits did not adequately address the Establishment Clause problems, and so on December 2, 2015, it granted a preliminary injunction forbidding the school from performing the proposed version. In response to the district court's ruling, Concord quickly edited the Spectacular further. The post-intermission segment actually performed in 2015 (the "2015" show) is, to our knowledge, the one performed in 2016 and 2017. The first half, "The Magic of the Season," continues to feature seasonal and non-religious songs and skits, such as "Winter Wonderland," "Text Me Merry Christmas," and "Secret Agent Santa." It lasts about an hour.

The second half, "The Spirit of the Season," is still about a half-hour in length and takes a more reverential tone. After announcing that the Spectacular will now "observe the many cultural celebrations during this holiday season," the show spends about four and a half minutes each explaining and performing a song to represent Hanukkah and another for Kwanzaa. Images are projected onto large screens to accompany both songs. For the remaining 20 minutes, students perform numerous Christmas songs that are more religious in nature (e.g. , "Jesus, Jesus, Rest Your Head," "O Holy Night"). During one of the songs, a nativity scene appears on stage for two minutes. The manger uses mannequins, not student actors. There are no New Testament readings. In February 2016, the plaintiffs amended their complaint to allege that the 2015 version was also unconstitutional.

B

In 2016, both parties moved for summary judgment. The district court ruled that the 2015 show did not violate the Establishment Clause and granted partial summary judgment in favor of Concord. After supplemental briefing on whether the plaintiffs' challenges to the 2014 and proposed versions were moot, the court decided that they were not. It granted the plaintiffs a declaratory judgment that the 2014 and proposed versions were unconstitutional and awarded $10 in nominal damages; it denied plaintiffs' request for a permanent injunction. The parties' cross-appeals from the district court's final judgment are before us.

We review a district court's decision on cross-motions for summary judgment de novo , evaluating the record in the light most favorable to the non-moving party on each issue. Kemp v. Liebel , 877 F.3d 346, 350 (7th Cir. 2017). We also consider legal questions of mootness de novo , though we review the underlying factual determinations for clear error. Wis. Right to Life, Inc. v. Schober , 366 F.3d 485, 489 (7th Cir. 2004).

II

Plaintiffs allege that Concord's alterations to the second half of the Spectacular were not enough to avoid a violation of the Establishment Clause of the First Amendment. That clause prohibits Congress from enacting any law "respecting an establishment of religion." U.S. CONST . amend. I, cl. 1. The Supreme Court has extended this protection to states and municipalities. Everson v. Bd. of Educ. of Ewing Twp. , 330 U.S. 1, 8, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The Supreme Court has employed at least three ways to assess whether a local governmental body, such as a school, violates the Establishment Clause: the endorsement, coercion, and purpose tests. We recognize that commentators, like our concurring colleague, have found flaws in each of these tests,¹ but as a lower court, we must follow the guidance we have been given to the best of our ability. We therefore examine the Spectacular as performed in 2015 under each of the Court's approaches.

A

The first approach—the endorsement test—originated in a concurrence by Justice O'Connor; it was approved by a majority of the Court a few years later. Lynch v. Donnelly , 465 U.S. 668, 691–92, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring); Cnty. of Allegheny v. ACLU Greater Pittsburgh Chapter , 492 U.S. 573, 592–94, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), abrogated on other grounds by Town of Greece v. Galloway , ––– U.S. ––––, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014). This analytic tool looks for state action that communicates a government's endorsement of a religion or a particular religious belief. Freedom From Religion Found., Inc. v. City of Marshfield , 203 F.3d 487, 493 (7th Cir. 2000). Such endorsement is especially concerning when impressionable children are involved. Doe ex rel. Doe v. Elmbrook Sch. Dist. , 687 F.3d 840, 851 (7th Cir. 2012) (en banc ) (" Elmbrook II "). To determine whether a practice endorses religion, we must look at the...