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SEE YOU IN COURT! - December 2010

December 6, 2010

Nutmeg was hit hard by two early snow storms this year, with six snow days before the Christmas break. Bob Bombast, veteran member of the Nutmeg Board of Education, raised a concern during the meeting last evening. “I don’t know about all this talk about global warming. If this keeps up, we’ll never complete the school year before June 30. We should hold school on Martin Luther King Day to be safe.”

Mrs. Superintendent groaned audibly. “Bob, we can’t change the calendar now. I recommend that the Board take its chances and leave the calendar alone.”

Red Cent chimed in. “I think the snow is beautiful. In fact, it was so great to hear the choir at Nutmeg High School sing, ‘I am Dreaming of a White Christmas.’ Of course, I prefer the Bing Crosby version. But it was really good, and we felt so ‘Christmas-y’ sitting in the auditorium with four feet of snow on the ground.”

Mal Content warned Red, “Careful, Red. We are a public school district. As a Board member, you can feel ‘holiday’ spirit, but you really shouldn’t mention Christmas in public. We don’t want to violate anyone’s rights now, do we?”

Red Cent shot back, “Wow. Aren’t you politically correct!! Did you go to the concert anyway? My favorite song was the Hallelujah Chorus from the Messiah. It brought back memories of going to church with my family through even deeper snow.”

“Oh. My. God,” Mal responded. “You didn’t just say that, did you? Are you crazy? I don’t want another lawsuit over violating people’s rights.”

“That’s for sure,” said Penny Pincher. “Our insurance premiums are through the roof. We have to be really careful here. We should adopt a policy or something.”

“Great idea,” Mal said eagerly. “I move that we appoint a committee on holiday celebrations to assure that we keep Christmas out of our schools and the ACLU out of our lives. I will be happy to serve on that committee. In fact, I can send you all a draft policy I got off the ACLU website.”

Mr. Board Chairperson scratched his head, wondering why Mal already had draft policy. “OK, Mal,” he said. “Send us the draft policy, and consider yourself the chair of the ad hoc committee on secular holiday celebration in the school.”

“Thank you, Mr. Chairperson. I will do my best with this responsibility,” Mal said faux humbly. “Given the impending not-to-be mentioned holiday, I have just forwarded my draft policy to all of you by Blackberry. You are all invited to my house for the first meeting of the Committee tomorrow night.”

Nancy Newshound, ace reporter from the Nutmeg Bugle, piped up and asked Mal to forward the policy to her as well, but Mal shrugged his shoulders, “No can do, Nancy. It is just a draft. You can have the final version when we work it out.”

This evening, Nancy showed up at the Committee meeting and even helped herself to a slice of pizza. But Mal was adamant that she not receive a copy of the draft policy until the Committee makes its recommendation at a public Board meeting.

Does the Ad Hoc Committee really have to keep Christmas out of the schools?

*        *        *

School officials must strike a balance regarding Christmas, and in so doing they must consider educational as well as legal issues. In addition, Mal should bone up on the Freedom of Information Act, and Bob should be aware of the rules on holidays.

From a legal perspective, school officials are obligated to avoid actions that can be seen as promoting a particular religion. However, holiday traditions have become part of our culture, and while it is not always easy to draw the line, school events that involve music and other activities related to various religious faiths are permissible.

For example, a few years ago the New York City Department of Education adopted a policy on holiday celebration that permits display of Christmas trees, a menorah, and a star and crescent as “secular” symbols. Christian parents sued over the prohibition in the policy against classroom displays of a crèche, claiming that the policy violated not only the Establishment Clause, but also their free exercise rights. The court rejected those arguments, holding that permitting display of a menorah and a star and crescent did not convey a message that Christianity is disfavored, but rather served the dual secular purposes of celebrating holidays and promoting greater understanding of cultural and religious differences. Interestingly, the court expressly stated that it was not deciding whether a crèche could be displayed in a public school. Skoros v. City of New York, 437 F. 3d 1 (2d Cir. 2006), cert denied, 127 S. Ct. 1245 (2007).

Many years ago, the Eighth Circuit Court of Appeals decided the leading case on this subject, holding that the curriculum can include discussion of holidays having both religious and secular significance, and that the study of these holidays can include religious symbols and religious music “in a prudent and objective manner and as a traditional part of the cultural and religious heritage of the particular holiday.” Florey v. Sioux Falls School District, 619 F.2d 1311 (8th Cir. 1980), cert. denied, 449 U.S. 987 (1980). While educators must be sensitive to the message any school activities send to religious minorities, it is not necessary to ban traditional holiday music from our schools.

Mal’s effort to help the Board navigate through the thicket is laudable, but in so doing he violated the Freedom of Information Act. To be sure, Mal appropriately permitted Nancy to attend his Committee meeting (although it is not clear whether the meeting was properly posted). Moreover, the FOIA does provide that “preliminary drafts and notes” are exempt from public disclosure. However, this exemption does not apply to “interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated.” In plain English, once the draft was shared with the committee, it was no longer exempt from disclosure as a “preliminary draft,” because it was part of the Committee’s decision-making process.

Finally, Bob raised an interesting point concerning holidays and school sessions. Legal holidays in Connecticut are identified in Section 1-4 of the General Statutes. In general, that statute permits school boards to schedule school on holidays, provided that the schools “hold a suitable nonsectarian educational program in observance of such holiday.” However, that option is not available during December and January, and schools must be closed on holidays during those two months.

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