Freedom From Religion Found. v. Concord Cmty. Sch.
| Decision Date | 14 September 2016 |
| Docket Number | Case No. 3:15-CV-463 JD |
| Parties | FREEDOM FROM RELIGION FOUNDATION, et al., Plaintiffs, v. CONCORD COMMUNITY SCHOOLS, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
Daniel I. Mach PHV, Heather L. Weaver PHV, American Civil Liberties Union, Washington, DC, Gavin M. Rose, ACLU of Indiana, Indianapolis, IN, Ryan D. Jayne PHV, Samuel T. Grover PHV, Freedom from Religion Foundation, Madison, WI, for Plaintiffs.
Thomas E. Wheeler, II, Anthony W. Overholt, Frost Brown Todd LLC, Indianapolis, IN, Timothy S. Shelly, Warrick and Boyn LLP, Elkhart, IN, for Defendant.
This began as a case about a living nativity scene. For the finale of its annual holiday show, called the Christmas Spectacular, Concord High School would present a living nativity scene during which students in costumes portrayed various nativity figures, while multiple ensembles from a cross-section of the performing arts department played a number of religious songs and a faculty member read excerpts from the Bible telling the story of Jesus' birth. This practice continued for many years. In 2015, however, a student and his father, along with the Freedom From Religion Foundation, filed suit, asserting that the religious content of the Christmas Spectacular violated the Establishment Clause. In response, the School made some changes to that portion of the show, proposing to omit the Bible readings and to add songs celebrating other winter holidays. The Court found, though, that even with those changes, the proposed show was still likely to violate the Establishment Clause, so the Court granted the Plaintiffs' request to enjoin the presentation of a living nativity scene as part of the 2015 shows.
The show that was actually performed in 2015 thus bore little resemblance to the religious presentations of previous years. It did not include any Bible readings or a living nativity scene—the two subjects of the Plaintiffs' motion for a preliminary injunction. And while the show did include a brief display of a nativity scene (composed of mannequins), that scene was on stage for less than two minutes as the visual complement to a single song performed by a single ensemble. The presentation of the nativity scene was thus not differentiated from the rest of the show, which featured a wide and engaging variety of visuals to augment the respective musical performances, including images and videos projected onto screens, dancing, choreography, costumes, and lighting displays.
After the 2015 show, the Plaintiffs amended their complaint to assert Establishment Clause challenges against each of those three versions of the show—the show as it was performed in 2014 (and previous years); as it was proposed in 2015, prior to the preliminary injunction; and as it was actually performed in 2015. The parties have now filed cross-motions for summary judgment. For the reasons that follow, the Court finds that the show that was actually performed in 2015 did not violate the Establishment Clause. As to the first two shows, the Court orders supplemental briefing as to whether those claims remain live, and as to what remedy may be appropriate.
Concord Community Schools is a public school corporation located in Elkhart County, Indiana. It serves approximately 5,300 students from four elementary schools, one intermediate school, one junior high school, and one high school—Concord High School, which has an enrollment of about 1,700 students. Concord High School has a performing arts department that involves approximately half of the students at the school. The department includes a marching band, three different concert bands, two jazz bands, a pep band, a string orchestra, a symphony orchestra, and six different performance and show choirs. The department also offers other artistic outlets, with programs in dance, theatre, and stagecraft.
The performing arts department presents a number of programs throughout the school year that allow the students to experience performing in front of live audiences. Those include an annual musical, a variety show, a band festival, a choral pops concert, a jazz café, and a Christmas show, which is at issue here. The Christmas show originated in 1970 after the marching band attended the Radio City Christmas Spectacular during a trip to New York City. Every year since then, the School has presented the Christmas Spectacular, modeled after the Radio City version, as its holiday show. The Christmas Spectacular typically includes performances from two string orchestras, a symphony orchestra, a concert band, two jazz bands, five choirs, and small chamber groups. It also includes dance teams, students from the drama program, and stage technicians, and involves over 600 students in total. The Christmas Spectacular is performed five times each year, including four public performances over a weekend, and a school-day performance for younger students in the district on a Friday.
The Christmas Spectacular traditionally runs about ninety minutes long, plus a fifteen minute intermission. The first portion of the show runs for about sixty minutes, and includes about twenty songs performed by the various ensembles. In the 2014 show, each of the songs for this portion of the show were listed on one page of the program under the heading "The Magic of Christmas." This portion of the show was made up of secular songs relating to the Christmas season, like Jingle Bells, Deck the Halls, Carol of the Bells, Let it Snow, and White Christmas. Each song was generally performed by a different ensemble than the last, and the performances included a variety of visual complements to the musical performances, including images projected onto screens next to the stage, dancing, choreography, and lighting displays. Some performances also included costumes, props, and backdrops, and the auditorium was decorated in a holiday theme, with Christmas trees, lights, and garland.
Each of the songs following the intermission in the 2014 show were listed on the next page of the program under the heading "The Spirit of Christmas." This portion of the show began with three songs related to the religious Christmas holiday. The rest of the songs, which lasted about twenty minutes, were listed in the program under the subheading "The Story of Christmas," and one of the ensembles performing during this portion was listed as the "Nativity Orchestra." This segment of the show had been performed in nearly the same manner since the Christmas Spectacular was first presented. It began with an announcement by a faculty member, stating: "Ladies and gentlemen: As we now present the Story of Christmas, we ask that you please hold your applause until the conclusion." [DE 36-1]. Thereafter, the faculty narrator, reading from a script, told the story of the birth of Jesus, reciting portions of the story as it appears in the Bible, as the various ensembles played a medley of ten songs, including Angels We Have Heard On High, Away in a Manger, We Three Kings, and Hark, the Herald Angels Sing. Parts of the narration were read over the musical performances, while other portions were read in between. During the third song, O Little Town of Bethlehem, a backdrop depicting a landscape scene appeared in front of the orchestra on stage, and students dressed in costumes as Mary and Joseph slowly walked across the front of the stage, as if walking to Bethlehem.
After a choir sang another song, the curtain raised to reveal a nativity scene on stage. The students dressed as Mary and Joseph stood over a manger inside a set depicting a stable. On each side of Mary and Joseph inside the stable stood three students dressed in white robes, portraying angels. More students dressed as shepherds stood on the sides of the stage outside of the stable. All of the students stood still in their places for the final twelve minutes of the show, while six songs were played. During the third-to-last song, We Three Kings, three more students dressed as the three wise men slowly walked on stage, one at a time, and took their place in front of the nativity scene, as if presenting their gifts to Jesus. Once the performers concluded the final song, a recorded version of Joy to the World began playing, and the nativity scene remained on stage for about another forty-five seconds as the audience applauded, until the curtain dropped.
After the performance of the 2014 show, the Freedom From Religion Foundation sent a letter to the School, objecting to the presentation of the Christmas Spectacular as a violation of the Establishment Clause. The Freedom From Religion Foundation is a not-for-profit organization that advocates for the separation of church and state, and it wrote the letter on behalf of one of its members, John Doe,1 a parent of a student who had performed in the 2014 show. After receiving the letter, the School's superintendent read a statement at a school board meeting on September 8, 2015, during which he defended the Christmas Spectacular and indicated that the School would not comply with the Freedom From Religion Foundation's request to remove the religious aspects of the show.
Accordingly, on October 7, 2015, the Freedom From Religion Foundation filed suit, along with John Doe and his son, Jack Doe. They then moved for a preliminary injunction, asking the Court to prohibit the School from including the live nativity scene and the Bible readings portraying the story of the birth of Jesus as part of the Christmas Spectacular. [DE 13]. After the motion was filed, the School indicated that it intended to make two changes to the show as compared to previous shows. First, it decided to omit the narration that included the Bible readings. Second, it added songs pertaining to Chanukah and Kwanzaa in the second half of the show. The School planned to have the show resume after the intermission with one...
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