As the season of holiday parties, concerts and performances approaches, schools need to be sure to plan events that comply with the Constitution. Of particular note is the Establishment Clause of the First Amendment, which provides that government shall “make no law respecting an establishment of religion.”
Many schools have discontinued holiday events or stopped displaying decorations to alleviate parental complaints and deter possible challenges. However, if your school has traditional events, you should evaluate them using a test established by the U.S. Supreme Court to ensure that you are in compliance.
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the supreme court outlined a test that has been used to determine if government actions or policies violate the Establishment Clause. The Lemon test has been applied to many situations, including events, performances, and displays of decorations at public buildings. In order to pass the Lemon test, the action or policy:
- Must have a secular purpose.
- Cannot either restrict or promote religion.
- Cannot lead to excessive government entanglement with religion.
If the government activity or policy passes the test, it is most likely going to pass constitutional muster.
Following Lemon, courts have addressed a number of specific issues. One question that has been raised is whether religious songs can be performed at school holiday concerts. Many courts, from different circuits, have concluded that concerts including religious songs will pass constitutional challenge provided that the songs do not proselytize, are not prayers, and have the purpose of advancing students’ knowledge of society’s cultural and religious heritage. Concerts that include different religions can also help to promote inclusion.
In a decision earlier this year, Am. Legion v. Am. Humanist Assn., 588 U.S. ____ (2019), the supreme court moved away from the Lemon test, stating that it poses a daunting challenge when analyzing situations involving long-standing monuments. Even though the court is shifting on the Lemon test, for now it is the standard for analyzing these kinds of holiday events. Every situation is different, of course. If, after considering any planned activity, the school district is still concerned it might be questionable, the board should contact its legal counsel.