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SEE YOU IN COURT! - December 2012

CABE Journal

December 2012

Bob Bombast, veteran member of the Nutmeg Board of Education, was surprised when he called Acorn Elementary School to inquire about a meeting he was supposed to attend. “Ho- Ho- Happy Holidays!” answered the school secretary. Bob hung up in shock. The Nutmeg Public Schools shouldn’t be promoting religion, Bob thought to himself. What else is going on? Bob set about to find out.

Without any of the usual niceties, Bob drove right over to Acorn Elementary School. He was immediately concerned as he walked into the school and saw a Christmas tree in the foyer, with brightly wrapped “presents” beneath the tree. When he came into the office, the longtime school secretary greeted Bob with the same “Ho- Ho- Happy Holidays.” Bob was shocked to see her wearing a Santa hat. What next, he thought?

Bob looked around the office, and he saw a sign-up sheet for a Secret Santa party, admonishing the participants that they had to spend between $10 and $20 for the present. Then, “Fa la la la . . .” echoed in the hall, and the sound got louder. Bob opened the door to the school office, and he saw a group of students walking down the hall, Ms. Treble-Clef right behind them, singing Christmas carols.

Bob had seen enough. As the Chairperson of the Policy Committee, Bob was ready to act. He drafted a new policy prohibiting holiday celebrations: 

The Nutmeg Public Schools honor the religious traditions of all cultures.  However, religion has no place in a public school.  Any activities related to religion, directly or indirectly, are hereby prohibited.  Such activities include, but are not limited to impersonating or referring to Santa Claus or the Easter Bunny, or conducting holiday celebrations or music.

That should do it, Bob thought. But Bob decided to bring up this policy at the next Board meeting without warning so that the diehards would not be prepared to object.

During New Business at the meeting last night, Bob raised his hand and asked to be recognized. He asked the Board for an indulgence. “With the coming of Christmas and all the related activities, we need to act quickly. I have prepared a policy for Board action, and I ask that you vote to place this matter on this evening’s agenda.”

Red Cent noticeably stiffened when he heard the news. “Wait a minute, Bob. Though you chair the Policy Committee, you know that I am on the Committee as well. I don’t remember discussing this at any of our meetings. I must protest!”

“Don’t worry, Red. I simply exercised the prerogative of the Chair, had a little meeting at home with myself and wrote the draft policy,” Bob responded. “You can just vote along with the other Board members, OK?”

“Not really. I feel dissed now,” sulked Red.

However, the other Board members were perfectly happy to give Bob the courtesy of placing the matter of his draft policy on the agenda, and all but Red voted to do so. The more difficult question, however, was whether the Board should adopt Bob’s policy. What should it do? 

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The question of religion in the schools has been a challenge for the last forty plus years. It is clear that Bob overreacted. Some symbols and activities have become separate cultural icons disconnected from their religious roots. Moreover, school districts are not required to (and indeed sometimes may not) prohibit religious expression in school. However, irrespective of what is or is not permitted, school officials must strive to maintain an inclusive school atmosphere for all students.

Before discussing holiday celebrations in school, we should take a moment to review Bob’s “committee meeting.” Bob could not really conduct a Policy Committee meeting on his own if committees operate by quorum in Nutmeg. Under board bylaws, a quorum is usually defined as a majority of the members of the board or of the committee. Of course there was no quorum when Bob drafted this new policy.

This situation raises another issue. Committees of or created by a public agency are themselves public agencies. As such, they are subject to the FOIA requirements of posting and public access except for legitimate executive session topics. If a quorum is defined by board bylaws as a majority, a meeting of two members of a three-member committee can create a quorum that requires compliance with Freedom of Information Act requirements. All such meetings should be posted, minutes should be kept, etc.

As to Bob’s draft policy, there are both legal and practical problems. To start the analysis, we note that public school officials must be neutral in matters of religion. In accordance with the (in)famous test from Lemon v. Kurzman (1971), school officials must always ask (1) is there a secular purpose in an action, (2) does it advance or inhibit religion, and (3) does it entangle school officials with religion? Here, Bob’s draft policy clearly has a secular purpose, that of assuring that school personnel do not violate their constitutional obligations. However, its broad sweep violates the second prong and could also be seen as endorsing religion, an alternative test the Supreme Court has also used in considering such issues.

Specifically, as written the policy is problematic because it could be construed as hostile to religion. Religious speech should not be disfavored. Students have the right to engage in religious activities when they do so independently, and prohibiting student religious speech per se would inhibit religion.

Religious speech by school officials stands on a different footing, and teachers and others must be careful in school not to advance or inhibit religion, or to be seen as endorsing religion. However, music from various religious traditions is part of our culture, and celebrating those traditions in an even-handed way is certainly permissible.

We must also separate religious speech from cultural artifacts. Rudolf the Red-Nosed Reindeer is hardly religious speech. Moreover, Christmas trees, presents and Santa himself have come into our culture. Their presence in our schools would not likely be seen as promoting religion, especially if artifacts from other cultural traditions are also displayed. Thus, the premise of Bob’s policy – that such things must be banned from our schools – is flawed. The secretary’s greeting, Ho- Ho- Happy Holidays, for example, may be annoying to some, but it does not raise constitutional issues. However, we note that greeting callers and visitors is a job-related function, and thus the secretary has no free speech right to use such a greeting.

That all said, the fact that certain activities, such as Santa giving gifts or having a Christmas tree in the foyer, may be legal does not mean it is a good idea. School officials should exercise their discretion in a manner that welcomes all students and does not convey a message of exclusion to any. Thus, even though Bob was typically ham-handed in his response, his concerns were indeed legitimate.

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