1-800-TELL-ADF …

                                                1-800-TELL-ADF

                                                MEMORANDUM

DATE:         Christmas 2006

FROM:        Alliance Defense Fund

RE:          Constitutional Rights of Students, Teachers, and Public Schools to Seasonal
             Religious Expression


        The Alliance Defense Fund is America's largest legal alliance defending religious liberty
through strategy, training, funding, and litigation. The Alliance Defense Fund has assisted
students, teachers, and public schools in knowing and understanding their rights and
responsibilities concerning seasonal religious expression. The discussion below addresses these
rights and responsibilities. As each legal situation differs, the information provided below
should only be used as a general reference and should not be considered legal advice.1 If
you think your rights have been violated as a result of a restriction on your religious expression
at a public school or if you represent a public school whose rights are being attacked, please
contact our Legal Intake Department so that we may review your situation and possibly assist
you. You can reach us via telephone at 1-800-TELL-ADF, or visit our website at
www.telladf.org and select the "Legal Help" button to submit a request for legal assistance.

         Historically, students and teachers across America have felt free to celebrate the
Christmas season by decorating classroom bulletin boards and Christmas trees, learning
traditional carols for the annual Christmas program, and exchanging Christmas cards and gifts
with classmates. In recent years, certain groups opposed to public religious expression--through
fear, intimidation, and disinformation--have spread misconceptions about the legalities of
celebrating Christmas in public schools. As a result, many school officials have removed nearly
all religious references to Christmas and replaced them with secular symbols instead. While
many do so unknowingly, school officials have begun a new "tradition" of violating the
constitutional rights of students and teachers to seasonal religious expression in our public school
system.

1
 Disclaimer: The information contained in this document is general in nature and is not intended to provide, or be a
substitute for, legal analysis, legal advice, or consultation with appropriate legal counsel. You should not act or rely
on information contained in this document without seeking appropriate professional advice. By printing and
distributing this document, the Alliance Defense Fund, Inc. (ADF) is not providing legal advice, and the use of this
document is not intended to constitute advertising or solicitation and does not create an attorney-client relationship
between you and ADF or between you and any ADF employee.
        A 2003 Gallup poll revealed that ninety-six percent of Americans celebrate Christmas. In
addition, our Constitution acknowledges that people of faith have a right to openly express their
beliefs in the public square. But many school officials attempt to prohibit students and teachers
from expressing any religious aspect of Christmas. Classroom decorations depicting snowmen
and reindeer have replaced decorations such as nativity scenes and angels. Even the "Christmas
Tree" has often been degraded into a "holiday" or "diversity" tree. Some school officials have
gone so far as to prohibit the common greeting "Merry Christmas" and, instead, insist that
teachers and students merely say "Happy Holidays" and refer to the Christmas break as "Winter
Break" or "Sparkle Season."

               THE CONSTITUTION PROTECTS ALL SPEECH INCLUDING
                     RELIGIOUS SPEECH IN PUBLIC SCHOOLS

       The First Amendment to the United States Constitution states that, "Congress shall make
no law respecting the establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech..."2

        The First Amendment of the Constitution is a restriction on government suppression of
speech and expressive activity. This includes religious speech and expression. No court has
ever ruled that the Constitution demands school officials to censor Christmas carols, eliminate all
references to Christmas, or silence those who celebrate Christmas. This leads one to ask, "What
does the Constitution protect?"

               THE FIRST AMENDMENT PROTECTS RELIGIOUS SPEECH

        It is a fundamental principle of constitutional law that school officials may not suppress
or exclude the speech of private parties simply because the speech is religious or contains a
religious perspective.3 This principle cannot be denied without eviscerating the essential First
Amendment guarantees of free speech. As the Supreme Court has stated:

        Our precedent establishes that private religious speech, far from being a First
        Amendment orphan, is as fully protected under the Free Speech Clause as secular
        private expression. Indeed, in Anglo-American history, at least, government
        suppression of speech has so commonly been directed precisely at religious
        speech that a free-speech clause without religion would be Hamlet without the
        prince.4




2
 U.S. Const. amend. I.
3
 Good News Club v. Milford Cent. Sch. Dist., 533 U.S. 98 (2001); Lamb's Chapel v. Ctr. Moriches Union Free Sch.
Dist., 508 U.S. 384 (1993); Widmar v. Vincent, 454 U.S. 263 (1981).
4 Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995) (citations omitted).


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    THE FIRST AMENDMENT'S ESTABLISHMENT CLAUSE DOES NOT REQUIRE
     SCHOOL OFFICIALS TO SUPPRESS SEASONAL RELIGIOUS EXPRESSION

        The First Amendment's Establishment Clause states that "Congress shall make no law
respecting the establishment of religion"5 To state that the Establishment Clause requires
suppression of seasonal religious expression is clearly a misunderstanding of the First
Amendment. This type of suppression demonstrates that many school officials mistakenly
believe that allowing seasonal religious expression would violate the so-called "separation of
church and state" ­ a doctrine often cited in connection with the Establishment Clause. As a
result, school officials across our free nation have denied students and teachers their
constitutional rights of religious speech and expression under the guise that the Constitution
requires them to do so. While many school officials are merely misinformed, others have
purposefully sought to eradicate the celebration, observance, or even the acknowledgement of
the religious aspects of Christmas from public schools.

        To dispel this notion, it is important to realize that the Supreme Court has never held that
the Constitution "require[s] complete separation of church and state."6 The Court has merely
held that the Establishment Clause requires the state to be neutral in its relations with religious
believers and non-believers; it does not require the state to oppose religion or religious
expression.7 In fact, the Constitution "affirmatively mandates accommodation, not merely
tolerance, of all religions, and forbids hostility toward any."8 "State power is no more to be used
so as to handicap religions, than it is to favor them."9

       The Constitution has no applicability to private religious expression. The Supreme Court
has noted that "there is a crucial difference between government speech endorsing religion,
which the Establishment Clause forbids, and private speech endorsing religion, which the Free
Speech and Free Exercise Clauses protect."10 Therefore, it is unconstitutional for public officials
to deny individuals the right to religious speech and expression by imposing on them a limitation
intended for the government.

        Needless acts of censorship violate the Constitution and hurt students who sincerely want
to share their faith with their friends. Public school officials can avoid violating the Constitution
if they understand a few basic rules about religious speech. The following discussion spells out
what the Supreme Court and federal courts have said on these Christmas questions and dispels
the extremist myths that have sadly prompted school officials and others to suppress religious
expression unnecessarily.




5
  U.S. Const. amend. I.
6
  Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (holding that the display of a nativity scene by a city was
constitutional because the city's conduct was supported by a legitimate secular purpose).
7
  Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947).
8
  Lynch, 465 U.S. at 673
9
  Everson, 330 U.S. at 18.
10
   Board of Educ. of the Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 249-50 (1990).


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                            RELIGIOUS SPEECH IN PUBLIC SCHOOLS

                                          Activities of Public Schools

               PUBLIC SCHOOLS MAY HAVE STUDENTS SING RELIGIOUS
                              CHRISTMAS CAROLS

        Religious Christmas carols may be sung in public schools without offending the
Constitution. Religious Christmas carols may be sung by individual students or by a group of
students during school activities such as choir, Christmas programs, and other events. Although
challenges have been brought, public schools have successfully defended their students'
constitutional right to sing Christmas carols.11

        In McGowan v. Maryland, the United States Supreme Court held that government
involvement in an activity of unquestionably religious origin does not violate the Establishment
Clause if it also has a secular purpose and effect.12 Thus, no lower court has ever ruled that
public schools must ban the singing of religious Christmas carols. In Florey v. Sioux Falls
School District, the Eighth Circuit Court of Appeals held that permitting observance of holidays
having both a religious and a secular basis allowed by a school board's policy and rules was in
furtherance of a secular program of education that did not violate the Establishment Clause.13
The court approved the school's stated purpose of advancing "the students' knowledge of
society's cultural and religious heritage, as well as the provision of an opportunity for students to
perform a full range of music, poetry and drama. . . ."14 Other federal appeals courts have
reached similar results concerning singing religious songs in public schools.15

 SCHOOL OFFICIALS MAY CALL A SCHOOL BREAK "CHRISTMAS VACATION"

       School officials may refer to the school break in December as "Christmas Vacation"
without offending the Constitution. The Supreme Court has acknowledged with approval the
fact that government has long recognized holidays with religious significance such as
Christmas.16 For example, Congress has proclaimed Christmas to be a legal public holiday.17

               PUBLIC SCHOOLS MAY CLOSE ON RELIGIOUS HOLIDAYS,
                      SUCH AS CHRISTMAS AND GOOD FRIDAY

        School officials do not violate the Constitution's Establishment Clause by closing on
religious holidays such as Christmas and Good Friday. States have successfully defended attacks
on such closures by showing compliance with current Supreme Court Establishment Clause

11
   See, e.g., Florey v. Sioux Falls Sch. Dist., 619 F.2d 1311, 1319 (8th Cir. 1980); Clever v. Cherry Hill Twp. Bd. of
Educ., 838 F. Supp. 929 (D.N.J. 1993).
12
   366 U.S. 420, 445 (1961).
13
   619 F.2d at 1329.
14
   Id. at 1314.
15
   See Bauchman v. West High Sch., 132 F.3d 542 (10th Cir. 1997); Doe v. Duncanville Indep. Sch. Dist., 70 F.3d
402 (5th Cir. 1995).
16
   Lynch, 465 U.S. at 676.
17
   5 U.S.C.A. § 6103(a) (2006).


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analysis.18 Currently, the Court uses the test set out in Lemon v. Kurtzman to review
Establishment Clause claims.19 Under the Lemon test, courts will inquire "whether the
challenged law or conduct has a secular purpose, whether its principal or primary effect is to
advance or inhibit religion, and whether it creates an excessive entanglement of government with
religion."20

        In Koenick v. Felton, a school board in Maryland successfully defended a Maryland
statute providing for public school holidays on Good Friday through the following Monday by
demonstrating a secular purpose--a high rate of absenteeism on those days.21 The court also
found that the holidays did not advance or inhibit religion because they gave students and
teachers the day off to use as they like and did not entangle government with religion.22

     PUBLICLY ACKNOWLEDGING CHRISTMAS DOES NOT REQUIRE PUBLIC
           OFFICIALS TO RECOGNIZE ALL RELIGIOUS HOLIDAYS

        It is a common misconception that it is only permissible to celebrate one religious holiday
if equal time is allowed for celebration of all other religious holidays. But no Court has ever
held that celebrating Thanksgiving and Christmas as religious holidays requires recognition of all
other religious holidays. The Supreme Court has explained that governmental action is not
unconstitutional merely because it confers an indirect, remote, and incidental benefit to one faith
or religion, or to all religions.23 Government recognition of a holiday, which incidentally
coincides with a religious holiday, is not unconstitutional.24

       Throughout our Nation's history, United States presidents have recognized religious
holidays such as Thanksgiving and Christmas. On December 24, 1944, President Franklin D.
Roosevelt addressed the Nation during a time of war:

        Here, at home, we will celebrate this Christmas Day in our traditional American
        way-because of its deep spiritual meaning to us; because the teachings of Christ
        are fundamental in our lives; and because we want our youngest generation to
        grow up knowing the significance of this tradition and the story of the coming of
        the immortal Prince of Peace and Good Will.25

     President George W. Bush has also recognized Christmas as a Christian holiday. In his
December 21, 2002 radio address to the Nation, President Bush stated:



18
   Bridenbaugh v. O'Bannon, 185 F.3d 796, 802 (7th Cir. 1999), cert. denied, 529 U.S. 1003 (2000); Koenick v.
Felton, 190 F.3d 259 (4th Cir. 1999).
19
   403 U.S. 602 (1971)
20
   Lynch, 465 U.S. at 679 (citing Lemon, 403 U.S. at 612-13 (1971)).
21
   Koenick, 190 F.3d at 266.
22
   Id. at 267-68.
23
   Lynch, 465 U.S. at 683
24
   Bridenbaugh, 185 F.3d at 801.
25
   William J. Federer, The History of Saint Nicholas & Christmas Holiday Traditions 116 (2002).



                                                                                                                5
                  At this time of year, we appreciate all the blessings that fill our lives,
         especially the great blessing that came on a holy night in Bethlehem. The
         Christmas story speaks to every generation. It is the story of a quiet birth in a
         little town on the margins of an indifferent empire. Yet that single event set the
         direction of history and still changes millions of lives.

                  For over two millennia, Christmas has carried the message that God is
         with us, and because he is with us we can always live in hope. The world we live
         in is very different from the world of ancient Bethlehem. Our need for that hope
         is still unchanged. In all the challenges and dangers of our day, we still seek the
         promise of peace on Earth.26

        If the President of the United States may publicly acknowledge Christmas as a Christian
holiday, without similarly acknowledging Ramadan and the Buddhist holiday Hana Matsuri,
public schools may do so as well. The Constitution imposes no "equal time" provision on public
schools.

        FREE SPEECH INCLUDES THE RIGHT TO SAY "MERRY CHRISTMAS"

        School districts may not ban teachers and students from saying "Merry Christmas." The
Supreme Court has stated that teachers and students do not "shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate."27 Under the direction of President
Clinton, U.S. Secretary of Education Richard Riley issued guidelines concerning religious
discussion of students, which stated, "Students therefore have the same right to engage in . . .
religious discussion during the school day as they do to engage in other comparable activity."28

        Teachers also have the right to greet students with the words "Merry Christmas," in spite
of their role as agents of the state. In order to violate the Establishment Clause, a teacher would
have to use her authority to promote religion to impressionable youth.29 Saying a simple
greeting that people commonly use in December does not rise to a state endorsement of religion.

     STUDENTS MAY STUDY THE RELIGIOUS ORIGINS OF CHRISTMAS AND READ
      THE BIBLICAL ACCOUNTS OF THE BIRTH OF CHRIST IN PUBLIC SCHOOLS

       The religious origins of Christmas may be studied in the classroom without offending the
Constitution. The Supreme Court held in Stone v. Graham, that "the Bible may constitutionally
be used in an appropriate study of history, civilization, ethics, comparative religion, or the like."
30
   A federal appeals court has defined "the term `study' to include more than mere classroom

26
   The White House, Radio Address by the President to the Nation, (Dec. 21, 2002), available at
http://www.whitehouse.gov/news/releases/2002/12/20021221.html.
27
   Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (holding that the wearing of armbands by
students to show disapproval of Vietnam hostilities was constitutionally protected speech).
28
   U.S. Dept. of Educ., Religious Expression in Public Schools, Archived Information, Guidelines, available at
http://www.ed.gov/Speeches/08-1995/religion.html (last modified Jan. 26, 2000).
29
   See School Dist. of Abington v. Schempp, 374 U.S. 203 (1963).
30
   449 U.S. 39, 42 (1981) (holding that a state statute requiring the permanent posting of the Ten Commandments in
public school classrooms violated the First Amendment because the legislature did not have a secular purpose).


                                                                                                                 6
instruction; public performance may be a legitimate part of secular study."31 Therefore, school
officials may constitutionally present Christmas passages from the Bible, such as Matthew 1:18-
2:22 and Luke 2:1-20, with a variety of teaching methods.

        In addition, the Supreme Court has noted, "[I]t might well be said that one's education is
not complete without a study of comparative religion or the history of religion and its
relationship to the advancement of civilization."32 The Supreme Court has explained that the
"study of the Bible or of religion, when presented objectively as part of a secular program of
education," is constitutional under the First Amendment.33

                 PUBLIC SCHOOLS MAY EXHIBIT RELIGIOUS SYMBOLS

        Public school officials may display religious symbols such as a crèche or nativity scene
without offending the constitution if they have an educational reason for doing so. The Supreme
Court has held that the display of a nativity scene is constitutional when displayed for legitimate
secular purposes, such as to celebrate the holiday and to depict the origins of the holiday.34
Lower federal courts have also allowed public schools to include religious and Christian symbols
in Christmas displays, school calendars, and holiday programs.35 In a recent case, a court held
that the school's holiday display and song program, which contained religious symbols, books,
and songs, did not violate the Establishment Clause.36

            STUDENTS HAVE A CONSTITUTIONAL RIGHT TO BE EXEMPT FROM
                  ACTIVITIES WITH A RELIGIOUS COMPONENT

        All students have a constitutional right to opt out of activities, such as a Christmas
program or a concert with a religious song, which conflict with the individual beliefs of the
students or their parents.37 Where the religious activity does not violate the Establishment
Clause, as explained above, the school is not required to prohibit the activity even though it
creates conflict with or offends some students or parents.38 Schools may not force "any person
to participate in an activity that offends his religious or nonreligious beliefs."39 A student with
an objection to some school activity containing religion (e.g., a school concert containing a
religious song or a field trip to a museum containing religious art) does not empower the student
to censor the expression or block the activity. The Constitution permits the student to opt out of
participation, not to silence others.



31
   Florey, 619 F.2d at 1316.
32
   School Dist. of Abington, 374 U.S. at 225.
33
   Id.
34
   Lynch, 465 U.S. at 681.
35
   See, e.g., Sechler v. State Coll. Area Sch. Dist., 121 F. Supp. 2d 439 (M.D. Pa. 2000); Clever v. Cherry Hill
Township Bd. of Educ., 838 F. Supp. 929 (D.N.J. 1993).
36
   Sechler, 121 F. Supp. 2d at 453.
37
   See Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that parents and guardians have a constitutional right to
direct the upbringing and education of their children).
38
   Florey, 619 F.2d at 1318.
39
   Id.


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                  Rights of Students and Other Individuals To Religious Expression

                   THE CONSTITUTION PROTECTS RELIGIOUS SPEECH

        The Constitution protects the religious speech of private individuals under the First
Amendment.40 Because of this, the Constitution prohibits governmental entities from
suppressing or excluding the speech of private individuals solely because their speech is
religious or contains a religious perspective.41

     STUDENTS HAVE A CONSTITUTIONAL RIGHT TO EXPRESS THEIR FAITH
                AND RELIGIOUS IDEAS IN A PUBLIC SCHOOL

        The First Amendment protects the private religious speech of students on and off the
school campus.42 The Supreme Court has stated that a student's free speech rights apply "when
[they are] in the cafeteria, or on the playing field, or on the campus during the authorized hours. .
. ."43 The Supreme Court has warned school officials not to trample the rights of students in
public schools:

         [S]tate-operated schools may not be enclaves for totalitarianism. School officials
         do not possess absolute authority over their students. Students in school as well
         as out of school are `persons' under our Constitution. They are possessed of
         fundamental rights which the State must respect, just as they themselves must
         respect their obligations to the State. In our system, students may not be regarded
         as closed-circuit recipients of only that which the State chooses to communicate.
         They may not be confined to the expression of those sentiments that are officially
         approved.44

Students do not "shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate."45 School officials, however, are not required to allow speech that creates a
material and substantial disruption to the school's ability to fulfill its educational goals.46 But
mere fear and apprehension of a disruption is not sufficient to enable the school to prohibit the
speech.47

         Schools may even create a public forum open to community expression that can include
religious symbols and speech.48 In Kiesinger v. Mexico Academy and Central School, the
district court held that once a school invited community members to contribute bricks containing

40
   See, e.g., Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Niemotko v. Maryland, 340
U.S. 268 (1951); Saia v. New York, 334 U.S. 558 (1948).
41
   Niemotko, 340 U.S. at 286.
42
   Widmar v. Vincent, 454 U.S. 263 (1981) (holding that a University that has opened its facilities for use by student
groups cannot exclude groups because of the religious content of their speech).
43
   Tinker, 393 U.S. at 512-13.
44
   Id. at 511.
45
   Id at 506.
46
   Id.
47
   Id.at 508.
48
   Kiesinger v. Mex. Acad. & Cent. Sch., 427 F. Supp. 2d 182, 201 (N.D.N.Y., 2006).


                                                                                                                     8
personal messages to a school walkway, it could not prohibit a message because it expressed a
religious viewpoint.49 And it should be noted that once a forum is opened for expression, it is of
no legal significance if only the religious speakers respond.50 In summary, student expression
may not be censored by school officials because it is religious.

     STUDENTS HAVE THE RIGHT TO DISTRIBUTE RELIGIOUS MATERIALS SUCH
      AS CHRISTMAS CARDS CONTAINING BIBLE VERSES IN PUBLIC SCHOOLS

        The First Amendment protects the right to express ideas through the distribution of
literature.51 Because students carry their constitutional rights to school, they may express ideas
and sentiments through the distribution of literature while at school.52 Therefore, students may
distribute Christmas cards containing religious messages at school on the same terms as non-
religious material.53

       STUDENTS HAVE THE RIGHT TO EXPRESS RELIGIOUS VIEWPOINTS IN
          SCHOOL ASSIGNMENTS, READING MATERIALS AND CLOTHING

       First Amendment rights, such as the rights of freedom of speech and expression,
accompany each student throughout the school day both inside and outside the classroom.54 In
addition, the Supreme Court has held that the Constitution "affirmatively mandates
accommodation, not merely tolerance, of all religions, and forbids hostility toward any."55
"[T]he State may not establish a `religion of secularism' in the sense of affirmatively opposing or
showing hostility to religion, thus `preferring those who believe in no religion over those who do
believe.'"56

       School officials must permit students to convey religious sentiments through their school
assignments, selection of reading materials, and clothing that conveys a religious message
through words or symbols.57 For example, if an assignment charges the student with writing an
essay on the most influential person in their lives, that student is free to write an essay on the
influence of Jesus Christ.




49
   Id.
50
   Id.
51
   Lovell v. City of Griffin, 303 U.S. 444 (1938) (holding that a city ordinance prohibiting the distribution of
literature without city permission violated the rights of freedom of speech and the press).
52
   Tinker, 393 U.S. at 506; see, e.g., Westfield Sch. L.I.F.E. Club, 249 F. Supp. 2d 98, 114 (D. Mass. 2003).
53
   See Mergens, 496 U.S. 226, 247-249; but see Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271 (3rd Cir. 2003)
(holding that the First Amendment was not violated when school prevented elementary school student from
distributing candy canes with attached religious message in the classroom because school had a valid educational
purpose).
54
   Tinker, 393 U.S. at 512-13.
55
   Lynch, 465 U.S. at 673.
56
   Abington, 374 U.S. at 225 (citing Zorach v. Clauson, 343 U.S. 306, 314 (1952)).
57
   Tinker, 393 U.S. at 512-13, cf. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (school officials may
exercise editorial control over student newspaper supervised by journalism teacher).



                                                                                                                  9
                                          Conclusion

       We hope this information has been helpful in understanding student rights to express
your religious beliefs at school and the responsibilities of school officials. If you would like
more information or assistance about a particular situation, please contact the Alliance Defense
Fund with the information provided above.




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