Indiana High School’s Nativity Scene Held Unconstitutional

In Elkhart, Indiana, about half an hour east of South Bend, students at Concord High School have, for almost 50 years, participated in the school’s elaborate Christmas concert called their “Christmas Spectacular.”  The students are a huge part of this production; in addition to showing off dance, choral, and instrumental talents, they also design and create the production’s costumes, sets, and props.  All in all, this holiday celebration involves the work of about 600 students.  In 2015, this celebration was challenged by the Freedom From Religion Foundation who took issue with a long nativity scene the students performed in the second half of the show, which included a narrator reading passages from the New Testament.

Concord High School student rehearsing in 2011 for the “Christmas Spectacular.”  (Sam Householder | The Goshen News)

The FFRF in its initial 2015 suit sought an injunction to prevent Concord from performing the Christmas Spectacular that December for violation of the Establishment Clause of the First Amendment.  However, prior to the ruling in that suit, Concord voluntarily made a few changes to the challenged second half of the show, namely adding Hanukkah and Kwanzaa songs and removing the readings from the New Testament.  The nativity scene, however, remained.  After a lower-court ruling that the show still violated the Establishment Clause, Concord then went further by using mannequins instead of students for a much-shortened nativity scene which occurred as a visual complement to a song.  The lower court blessed this revised version, and it was performed in 2015, 2016, and 2017.  But the FFRF maintained that the revised version was still unconstitutional.

On appeal, the Seventh Circuit Court of Appeals upheld the lower court’s ruling and found the revised version constitutional.  To determine if a local government body (like a public high school) has violated the Establishment Clause, courts look at three things: endorsement, coercion, and purpose.  Here, the Court found that there was no “endorsement,” i.e., that Concord was no longer explicitly promoting a particular religion because the biblical readings were removed and the nativity scene merely complimented a song.  The Court also found that the revised version was not a form of “coercion,” because even though the show contained a captive audience, the revisions removed any pressure Concord applied to support a particular religion.

As to the Concord’s purpose, however, the case was a bit closer.  After the show’s amendments, Concord claimed that its purposes were to educate about December holidays, to entertain an audience, and to provide opportunities for performing-arts students.  The Court was not impressed with Concord’s first aim, as most of its non-Christmas narratives were added after the original court challenge.  However, the Court was persuaded by Concord’s other goals, as the students have to learn music and choreography, and design and build sets for the show.  To the Court, any religious purpose was firmly in the background of these legitimate secular aims.

Case: Freedom From Religion Found. v. Concord Cmty. Sch., No. 17-1683 (7th Cir. Mar. 21. 2018) (opinion here)

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