Freedom From Religion Found. v. Concord Cmty. Sch.

• Decision Date: 02 December 2015
• Docket Number: Case No. 3:15-CV-463 JD
• Citation: 148 F.Supp.3d 727
• Parties: Freedom From Religion Foundation ; John Doe; and Jack Doe, Plaintiffs, v. Concord Community Schools, Defendant.
• Court: U.S. District Court — Northern District of Indiana

148 F.Supp.3d 727

Freedom From Religion Foundation ; John Doe; and Jack Doe, Plaintiffs,

v.Concord Community Schools, Defendant.

Case No. 3:15-CV-463 JD

United States District Court, N.D. Indiana, South Bend Division.

Signed December 2, 2015

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.

OPINION, ORDER AND PRELIMINARY INJUNCTION

JON E. DEGUILIO

, Judge, United States District Court

This case presents a challenge to the inclusion of a living nativity scene in the annual holiday show presented at Concord High School, known as the Christmas Spectacular. The event showcases each of the various aspects of the School's performing arts department, including its bands, orchestras, choirs, and dance team. Initially modeled after the Radio City Christmas Spectacular, the show features a variety of musical performances in the holiday theme, many of which include dancing, choreography, or lighting displays. For its conclusion, though, the show takes a distinctly religious tone. At least until this year, the final twenty minutes of the show featured readings from the Bible of the story of the birth of Jesus, accompanied by multiple musical ensembles playing religious songs aligning with the nativity story, while students dressed as biblical characters stood on stage against the backdrop of a manger and portrayed a live nativity scene.

On October 7, 2015, the plaintiffs in this action—a student, his father, and the Freedom From Religion Foundation—filed suit, alleging that the living nativity scene and biblical readings violate the Establishment Clause of the First Amendment. They have now filed a motion for a preliminary injunction, seeking to enjoin the defendant, Concord Community Schools, from including the living nativity scene or the Bible readings in this year's Christmas Spectacular. [DE 13]. In responding to the motion, the School indicates that certain changes have been made to this year's show, including the addition of songs pertaining to Chanukah and Kwanzaa and the removal of any readings from the Bible. The School argues that this program, at least as modified, complies with the Establishment Clause. Given the removal of the Bible readings from the show, only the living nativity scene remains subject to the Plaintiffs' motion. For the reasons discussed below, the Court concludes that, based on the manner in which it is presented and its current context within the show, the living nativity scene impermissibly conveys an endorsement of religion and thus runs afoul of the Establishment Clause. Accordingly, the Court grants the motion for a preliminary injunction.

I. FACTUAL BACKGROUND¹

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 generally 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 2015 show, this portion will include songs such as The Holly and the Ivy; Winter Wonderland; Text Me Merry Christmas; Parade of the Wooden Soldiers; Let it Snow; and White Christmas. Each song is generally performed by a different ensemble than the last, likely with brief pauses in between to arrange the groups on stage, and many of the performances feature visual aspects such as dancing, choreography, or lighting displays. This portion of the show changes each year depending on the musical selections chosen by the directors of each of the various ensembles.

The portion of the show that is contested in this case comes in the second half, after the intermission. For each year since the show's inception, this portion of the show has closed with a segment that runs roughly twenty minutes, and that includes a medley of ten different songs, each listed in the program under the heading “The Story of Christmas.” Each of the songs during this medley are religious hymns or carols with a Christian influence, such as Angels We Have Heard on High; O Little Town of Bethlehem; Away in a Manger; and Hark, the Herald Angels Sing. One of the bands, one of the orchestras, and the combined choirs perform during this medley, sometimes individually and sometimes in combination. This segment has begun with an announcement that states: “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, a faculty narrator, reading from a script, tells the story of the birth of Jesus, reciting portions of the story as it appears in the Bible, at Luke 2:6–14 and Matthew 2:1–11. Beginning with the fifth song, a nativity scene appears on stage, portrayed by student performers dressed in appropriate costumes and standing in a nativity set. Once they take their positions in the nativity scene, the students stand still and remain in that position for the final twelve minutes of the show, until its conclusion.

The School has made two changes to the second half of this year's show as compared to previous shows and apparently in response to the filing of this lawsuit. First, it has decided to omit the narration that included the Bible readings. Second, it has also added songs pertaining to Chanukah and Kwanzaa in the second half of the show. The show will resume after the intermission with one of the string ensembles playing “Ani Ma'amin,” in reference to Chanukah, after which one of the choirs will sing “Harambee,” in reference to Kwanzaa. No live visual aspects will accompany those performances, but the School plans to project images of the respective holidays, such as a menorah or dreidel for Chanukah, and candles or a mat for Kwanzaa, onto screens on the side walls of the auditorium. The precise content of those displays has not yet been determined. In addition, the Chanukah, Kwanzaa, and Christmas segments will each be introduced by a student reading a short script noting the cultural significance of the respective holiday. The Chanukah and Kwanzaa segments are likely to last three or four minutes each,² while the Christmas segment, as before, will last about twenty minutes, with the nativity scene on stage for the final twelve minutes of that segment.

The Plaintiffs in this case include Jack Doe, a student at Concord High School, and John Doe, his father.³ Jack Doe participates in the performing arts program, and he performed in the 2014 Christmas Spectacular and will be performing in the 2015 Christmas Spectacular. John Doe attended the 2014 Christmas Spectacular in order to support his son and be involved in his son's activities, and he plans to attend the 2015 Christmas Spectacular, also. The Does are not Christian, and they are offended by the inclusion of a living nativity scene and Bible readings as part of the Christmas Spectacular, which they view as sending a message that Christians are favored by the School while non-Christians such as themselves are outsiders. They filed this suit along with the Freedom From Religion Foundation, which is a not-for-profit organization devoted to the separation of church and state. Prior to filing suit, the Freedom From Religion Foundation sent a letter to the superintendent of Concord Community Schools, asking that the School omit the nativity scene and Bible readings from this year's Christmas Spectacular. The School did not respond directly to the Freedom From Religion Foundation, but the superintendent read a statement at a school board meeting in which he indicated that the School did not intend to comply with that request. Accordingly, the Plaintiffs filed this suit, and have now moved for a preliminary injunction. As noted above, the initial motion sought to enjoin the performance of the live nativity scene and the Bible readings. Since the School has since decided not to include the Bible readings as part of the show, the Plaintiffs now ask solely that the living nativity scene be enjoined.

II. ...