Freedom from Religion Found., Inc. v. Concord Cmty. Sch.
Freedom from Religion Found., Inc. v. Concord Cmty. Sch.
Opinion of the Court
Since ancient times, people have been celebrating the winter solstice, which occurs *1041around 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 *1042actors 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.
*1043*1044The 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.
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 ,
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. ,
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 ,
It was under this standard that the district court concluded plaintiffs were likely to succeed on the merits in their initial challenge. But the 2015 production's second half differs significantly from the 2014 and proposed programs. The biblical reading is gone. The nativity scene is over 80% shorter, now on stage for just one song with a handful of mannequins rather than student actors. The show also pays tribute, albeit briefly, to two winter celebrations besides Christmas. We must ask if a reasonable observer, viewing the Spectacular as a whole, would perceive the 2015 show as a religious endorsement.
Let us first start with the most inherently religious aspect of the show: the nativity scene. We are not prepared to say that a nativity scene in a school performance automatically constitutes an Establishment Clause violation. See Doe v. Wilson Cnty. Sch. Sys. ,
Another problematic feature had been the music of the show's second half. In the 2015 version, while the playlist carries over much of the earlier programs, it adds Ani Ma'amin and Harambee. We acknowledge that, although the narrative descriptions for each holiday are roughly the same length, the number of Christmas songs dwarfs the single songs to celebrate Hanukkah and Kwanzaa. Nevertheless, we accept the school's assertion that there are a greater number of appropriate Christmas arrangements by virtue of the sheer volume of Christmas songs. (This may simply reflect familiarity rather than actual numbers. Anyone listening to the radio during December will realize that there are other familiar Hanukkah songs. E.g. , "Hanukkah, O Hanukkah," the "Dreidel" song. See Andrew Frisicano & Ro Samarth, Eight Days of Hanukkah Songs to Listen to , TIME OUT (Nov. 27, 2017), https://www.timeout.com/newyork/music/best-hanukkah-songs.)
It also gives us pause that, as the district court recognized, the songs in the second half of the program "generally align with the story of the birth of Jesus." While this is practically the only message in the second half of the 2014 show (to the point that it was hard to distinguish it from many Christmas Eve church services), the 2015 show is materially different. Without the biblical narration and live nativity, the performance of Christmas carols alone does not inevitably convey a religious message. These songs, played "with regularity" in workplaces and stores and on TVs and radios, have permeated mainstream society. See Florey v. Sioux Falls Sch. Dist. 49-5 ,
The religious nature of the nativity and the songs do not come off as endorsement in part because they make up only a fraction of the Spectacular, which as configured in 2015 is primarily a non-religious seasonal celebration. The Santas, jingle bells, and winter wonderlands of the first half all promote the secular aspects of the holiday season. (We recognize that some may view these songs and symbols as non-secular given that Christmas is, at root, a Christian holiday; on the other hand, even the pre-Christian pagans had their winter solstice celebrations, as we have noted.) See Cnty. of Allegheny ,
Yet the broader secular context-on top of the inclusion of two other holidays-matters here because a reasonable audience member, sitting through the 90-minute Spectacular, would not understand the production to be ratifying a religious message. See Bauchman for Bauchman v. West High Sch. ,
*1048The changes to the second act reduced the religious impact, tipping the scales in favor of Concord. The show's history, in particular the use of the same living nativity scene for the previous 45 years, supports this conclusion. Plaintiffs argue that a reasonable observer would view even the 2015 show, with its abbreviated nativity, as the same religious program, just with litigation-motivated edits. The counterargument is that an observer would reasonably perceive the 2015 Spectacular as a major departure from 2014. Where the second half was exclusively a telling of the birth of Jesus, it can now be seen as a collection of music from multiple traditions. The district court adopted the latter view, and we find that a fair assessment of the evidence.
It is worth emphasizing that no one factor alone-the secular first half, the nativity's lack of prominence, the inclusion of other holidays-leads us to conclude that the 2015 Spectacular passes muster under the endorsement test. Overall, the 2015 performance in its current form would not cause a reasonable observer to believe that Concord is signing off on a particular religious message.
B
Plaintiffs also argue that the 2015 production impermissibly coerced the audience members (including some students, we presume) and student participants to conform to one particular religion-Christianity. In two school-prayer cases, the Supreme Court articulated the approach for evaluating whether a government applied coercive pressure to support or participate in religion. In Lee v. Weisman ,
Concord argues that coercion analysis has no role to play here, and so it does not explain why it should prevail if we do not agree with its premise. Instead, it attempts to incorporate by reference the district court's opinion on the matter. We do not see why coercion should be off the table: this is an approach that the Supreme Court has taken, and that we have applied in the past. Because "appellate briefs may not incorporate other documents by reference," we could, if we wished, deem any opposition to plaintiffs' coercion argument as forfeited. Parker v. Franklin Cnty. Cmty. Sch. Corp. ,
As in Lee , Santa Fe , and Elmbrook II , Concord had a captive audience on its hands-in terms of both students involved in performing arts classes and extracurricular activities, and their families and *1049friends attending the show to support the students. That the school had a policy allowing students to opt out of participating in the Spectacular (an option some invoked) is irrelevant, because a choice to participate or miss out on a significant portion of the curriculum is an unconstitutional one.
Yet unlike Lee , Santa Fe , and Elmbrook II , here there was no religious activity in which performers or audience members had to partake during the Spirit of the Season. There was no prayer as in Lee and Santa Fe . No one passed out religious literature as in Elmbrook II. The show took place in a school auditorium, not a church sanctuary, a religious space by definition. The component that came closest to religious activity, reading from the New Testament, was removed in 2015 and so we have no need to opine on it.
Despite the 2015 changes, plaintiffs say that they remain concerned that students or audience members felt pressured to support the religious aspects of the Spirit of the Season when they saw others "reflecting on a religious hymn." With the lights dimmed, mid-performance, however, it would have been hard to observe the behavior of others, let alone be sure that they were reflecting on the religiosity of the performance rather than enjoying the entertainment or checking texts on their cellphones. More compelling is plaintiffs' concern that the powerful ovation (heard plainly on the recording of the performance that was included in the record) at the display of the nativity scene might pressure others to join the applause. Yet given the context of this heated litigation, the loud clapping was likely communicating opposition to the lawsuit more than support for any particular religious belief. We anticipate that reactions to the nativity in subsequent years will be less fervent. Although the matter is not open-and-shut, we see no reason to reverse the district court's conclusion on summary judgment that the 2015 show did not pressure individuals to support any religious beliefs.
C
Last, plaintiffs allege that the 2015 show has an unlawful religious purpose. Under Lemon v. Kurtzman ,
Concord advances three objectives for the Spirit of the Season and the Spectacular generally. One is to provide a cultural education about December holidays, evidenced by the inclusion, even if brief, of songs to represent Hanukkah and Kwanzaa. In the 2015 version, before the musical numbers a student reads a short description of each holiday. We have recognized the educational role played by explanations such as the narratives here. Books II ,
Noting that the Jewish and African-American holidays were added only in response to litigation, plaintiffs reject the sincerity of this stated aim. They allege that the musical director's lack of research on the holidays (including the awkward *1050fact that "Ani Ma'amin" is a Jewish song but not one specifically about Hanukkah) underscores the fact that cultural education was not truly Concord's aim. The purpose test "does not require us to evaluate the quality or sufficiency of the historical analysis" at issue. Books II ,
The school's other two asserted purposes rest on sturdier ground. Concord puts on the program each year both to entertain the audience and to provide pedagogical opportunities for Concord's performing-arts students. The show originally was based on the Radio City Rockettes' Christmas Spectacular, after a marching band field trip to New York City. As one of a few productions put on by the department each year, the Spectacular provides many ways for students to grow. They learn challenging music and choreography. They go through the process of auditioning for solos and small group numbers. They design and create costumes, props, and sets. They stage lighting. They get the experience of performing live for large crowds. And younger students, who are bussed over for a performance of the show's first half, might have their interest in the department piqued. The plaintiffs seem to concede that these legitimate purposes are reasons to have a winter performance in general. Their only point is that these purposes do not justify the religious elements of the second half. But the Establishment Clause does not require schools to tailor their conduct narrowly to the stated aim. It mandates only that a religious purpose cannot be the primary motivation.
And here the district court reasonably concluded that it is not. The current Spectacular is primarily entertainment and pedagogy. The nativity scene, which was problematic in the 2014 and proposed versions, is no longer the second half's main event. Instead, as we already have said, it accompanies just one song, serving the same aesthetic purpose as the images projected on screens and other visuals. The second half taken as a whole provided musicians and singers multiple opportunities to learn pieces and perform. This would have been an easier case if the Christmas Spectacular had devoted a more proportionate amount of stage time to other holidays. But ultimately, we agree with the district court that in 2015 Concord sincerely and primarily aimed to put on an entertaining and pedagogically useful winter concert. We thus find the 2015 iteration of the Spectacular constitutional no matter which lens we use for evaluation.
III
With this much of a victory under its belt, Concord would like more. It asserts that because it cured the Spectacular's alleged constitutional defects with the current (and intended future) version of the show, the plaintiffs' claims regarding the 2014 and proposed versions became moot. The district court properly rejected this argument, as we now explain.
A claim becomes moot, and thus strips a court of jurisdiction under Article III, "[w]hen a party with standing at the inception of the litigation loses it due to intervening events." Parvati Corp. v. City of Oak Forest ,
Concord represents that it plans to continue presenting the 2015 version of the Spectacular. End of dispute, it concludes. It supports this alleged commitment with the sworn declaration of Superintendent John Trout. In his affidavit, Trout states, "[T]he community, the School Board, administrators, teachers, parents, and students engaged in a variety of informal discussions regarding the program on a going forward basis." The conversations took place "at the local park, over the water cooler, and across the fence and resulted in what appeared to be a consensus that the program was a success and that the changes should be made permanent."
Concord compares what it calls the "express commitments" in Trout's affidavit to our decision in Wisconsin Right to Life . In that case, a state campaign finance law remained on the books though it had been declared unconstitutional.
The superintendent's informal assurances fall short of the board's action in Wisconsin Right to Life . We have previously resisted labeling cases moot in the face of similar promises. In Doe ex rel. Doe v. Elmbrook School District ,
As in Elmbrook and Trinity Lutheran , we cannot give definitive weight to the superintendent's statements. Trout equivocates in his affidavit that the changes should be adopted permanently because of the apparent consensus. But there is no *1052evidence that any change was actually made. Though the school board had the authority to adopt official policies, IND. CODE § 20-26-5-4(a)(18), Concord, like Elmbrook, failed to document in any way its decision to make the changes permanent. And despite Trout's assertion that he decided along with the school board to make the changes permanent in December 2015, the minutes of the school board meetings from December 2015 and January 2016 contain no discussion of the Christmas Spectacular. See IND. CODE § 5-14-1.5-1 (requiring public agencies, including schools, to conduct official action openly). Though the district court determined that Trout was sincere in his affidavit, there is no guarantee that a future superintendent would take the same stance. See Boyd v. Adams ,
In an attempt to bolster the credibility of the superintendent's stated intentions, Concord cites the deposition testimony of Scott Spradling, the school's music director. Spradling stated that the changes to the 2015 program were going to be made permanent. He made this promise, however, before the preliminary injunction was issued, meaning that he was referring to the changes in the proposed show-not the 2015 show. Concord also refers to its Rule 68 Offer of Judgment. In late December 2015, the school district offered permanently to enjoin the use of biblical readings and a living nativity scene in exchange for plaintiffs' agreement not to pursue any further relief. As the district court noted, an offer of judgment is a litigation tactic, not a binding future commitment. Plaintiffs rejected the deal, at which point it was dead. We have no reason to infer that Concord will adhere to its terms without any consideration from the other side. See FED. R. CIV. P. 68(b) (unaccepted offers are generally inadmissible). Finally, we place little weight on the fact that Concord no longer defends the constitutionality of the 2014 or proposed versions. The school was still considering an appeal of the preliminary injunction ruling in May 2016, five months after the superintendent and school board allegedly made the 2015 version permanent. This timing undercuts any inference that the district had indeed given up any claim of right to return to the earlier versions.
It is easy to envision the school bringing back the nativity scene of Spectaculars past given the Concord community sentiment. A Facebook page entitled "Save Concord's Christmas Spec's Nativity Scene" had over 7,000 likes. Hundreds of people wore t-shirts specially printed for the occasion to a school board meeting on the topic. Yard signs were made. Someone even sent FFRF a death threat!
Concord has objected to the consideration of public opinion as part of the mootness analysis. But it was the school itself that made public opinion relevant: Trout said consensus was reached after speaking with "parents" and members of the "community." By looking at a factor that admittedly entered into the school's decision-making, we are not impermissibly imputing private citizens' motives to government actors. Contra City of Cuyahoga Falls v. Buckeye Cmty. Hope Found. ,
Though Concord describes its position as one of "repeated and firm policy commitment *1053s," it has failed to meet its stringent burden to establish mootness. Because the plaintiffs' challenges to the 2014 and proposed versions remain live controversies, we need not decide the jurisdictional issue Concord raised-whether a suit for nominal damages alone is a sufficiently justiciable controversy under Article III.
Finally, since the parties have not questioned the district court's decision on the merits or remedies for the claims relating to the 2014 and proposed shows, they are not before us on this appeal. We thus refrain from any comment on those issues.
IV
The parties put us in the uncomfortable role of Grinch, examining the details of an impressive high school production. But we accept this position, because we live in a society where all religions are welcome. The district court found that the Christmas Spectacular program Concord actually presented in 2015-a program in which cultural, pedagogical, and entertainment value took center stage-did not violate the Establishment Clause. We AFFIRM this judgment.
Easterbrook, Circuit Judge, concurring in the judgment.
The majority's opinion applies recent decisions of this circuit and various "tests" announced (often by less than a majority) in some decisions of the Supreme Court. This makes it hard to quarrel with the result. But as I think many of those decisions incorrect, I do not join the opinion.
It is not sound, as a matter of history or constitutional text, to say that a unit of state or local government "establishes" a religion through an artistic performance that favorably depicts one or more aspects of that religion's theology or iconography. The Concord Community Schools would not violate the Constitution by performing Bach's Mass in B Minor or Handel's Messiah, although both are deeply religious works and run far longer than the nativity portion of the "Christmas Spectacular." Performing a work of art does not establish that work, or its composer, as the state song or the state composer; no more does it establish a state religion. The Supreme Court's decisions permitting legislatures to open their sessions with prayer show this. See, e.g., Greece v. Galloway , --- U.S. ----,
It takes taxation or compulsory worship to establish a religion; some form of coercion is essential. This is the view of scholars who have investigated what the phrase "establishment of religion" meant in the Eighteenth Century, when these words were adopted. See generally Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (2d ed. 1994); Philip Hamburger, Separation of Church and State 89-107 (2002); Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion ,
I have made these points before, and at greater length. See American Jewish Congress v. Chicago ,
Although the Concord Community Schools have not violated the Constitution, the judiciary's performance is harder to defend. Federal judges have picked through a performance to choose among elements with religious significance. Preventing that sort of entanglement between *1054the judiciary and religious expression is a main goal of the First Amendment-yet we are at it again, playing the role of producer to decide which material, representing what religious traditions, may appear in a choral performance. Cf. Bormuth v. Jackson County ,
Indeed, there is debate among the Justices about the continuing validity of the endorsement test. Justices Scalia and Thomas, in a dissent from a denial of certiorari, expressed the view that Town of Greece v. Galloway , --- U.S. ----,
Reference
- Full Case Name
- FREEDOM FROM RELIGION FOUNDATION, INC. v. CONCORD COMMUNITY SCHOOLS, Cross-Appellee.
- Cited By
- 39 cases
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- Published