SEE YOU IN COURT - December 2019

Last year, the holiday season was awash in controversy for the Nutmeg Public Schools after the principal of Acorn Elementary School came to school dressed as Santa Claus and passed out presents to students the day before the holiday vacation.  One parent went on Facebook and blasted the principal as “an insensitive nincompoop” who promotes a divisive school environment.  That post then provoked a flurry of contrary posts and tweets, which lauded the principal as “a keeper of our finest traditions.”

At the Board meetings that followed, speakers during Public Comment argued vehemently on both sides of the issue, and for three meetings running, Public Comment devolved into loud arguments between the Board members on opposite sides of the issue.  However, with the spring came a thaw.  The Board members started talking to each other respectfully about whether and how religious holidays should be celebrated in the schools.  The Policy Committee took up the issue, and it came up with a draft policy, which the Board discussed in executive session last month as a confidential preliminary draft.  After a lengthy discussion in executive session, the Board reconvened in open session to take action. 

On behalf of the Policy Committee, Penny Pincher presented the new policy to the Board members and the public.  It was simple in design and broad in its sweep:

Out of respect for the many cultures and traditions of the members of the Nutmeg Public Schools community, the Nutmeg Board of Education prohibits any and all references to religious holidays in the Nutmeg Public Schools, including but not limited to songs played at concerts and related symbols and characters such as Santa Claus and the Easter Bunny.

The Board then passed the policy unanimously with no further comment from the Board members.

The day after the meeting, social media was abuzz with indignant tweets and posts about the “cowardice” of the Board and the problem of political correctness.  At the Board meeting that followed, speaker after speaker stood up during public comment to excoriate the Board members for their action.  One member of the public even singled out Penny as Chairperson of the Policy Committee, suggesting that she should seek God’s forgiveness for coming up with such a policy.

For some, mere words were not opposition enough.  Peter Pious, a longtime Nutmeg resident, sought an injunction in federal court against enforcing the Board policy, claiming that a policy prohibiting celebration of religious holidays in the public schools is unconstitutional because it is “anti-religious” and interferes with the First Amendment right of his children to receive information.  He also filed a complaint with the Freedom of Information Commission, claiming that the Board violated the FOIA by discussing the draft policy in executive session.

What are the chances that the court will enjoin enforcement of this new policy?  And how will the Board fare before the Freedom of Information Commission?

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Whether and how to celebrate religious holidays in our public schools is a constant challenge.  School officials are free to include activities in schools that acknowledge the religious holidays, but they must assure that the schools do not promote any particular religious tradition.  Adding to the challenge is the fact that decisions on such matters do not simply relate to the legal issues of what school officials are permitted to do under the First Amendment.  Rather, these issues involve questions of what school officials should do to promote an inclusive school environment.

We start the analysis with a review of the well-known “three-part test” announced by the United States Supreme Court in its 1971 decision in Lemon v. Kurtzman.  There, the Court established an analytical framework for considering whether actions by school officials violate the Establishment Clause of the First Amendment:  (1) does the action have a secular purpose? (2) does the action neither advance nor inhibit religion, and (3) does the action avoid excessive entanglement with religion.  When questions can be answered yes, the action will be held constitutional.

Over the years, this Lemon test has been variously endorsed, criticized and ignored by the Court, but it remains a helpful tool.  The United States Supreme Court has never ruled on the specific issue of celebrating religious holidays in the schools, but in 1980 it let stand an Eighth Circuit decision holding that permitting the performance of religious holiday music and discussion of religious holidays in school does not violate the First Amendment.  Florey v. Sioux Falls School District 49-5, 619 F.2d 1311 (8th Cir.), cert. denied, 449 U.S. 987 (1980).

In the Florey case, the court applied the Lemon test.  It found that these activities had the secular purpose of educating students about religious traditions, that they neither advanced nor inhibited religion, and that they did not entangle school officials with religion.  However, the court recognized that “when Christmas carols, or other music or drama having religious themes, can be sung or performed by students in elementary and secondary public schools without offending the First Amendment” will depend upon the specifics of the activities involved.

More recently, the Third Circuit rejected a challenge similar to the challenge brought here by Peter Pious.  Stratechuk v. Board of Educ., South Orange-Maplewood School Dist., 587 F.3d 597 (3d Cir. 2009).  There, the court upheld a board of education policy that essentially prohibited the playing of religious music in the schools.  The court noted that playing such music is permitted (subject to limitations described above), but it held that playing such music may also be prohibited: “Certainly, those of us who were educated in the public schools remember holiday celebrations replete with Christmas carols, and possibly even Chanukah songs, to which no objection had been raised. . .Many decisions about how to best create an inclusive environment in public schools, such as those at issue here, are left to the sound discretion of the school authorities.”  School officials may thus decide what activities will be permitted and should consider whether they will promote an inclusive school environment.

Finally, we note that Peter will have better luck with his claim under the Freedom of Information Act that the Nutmeg Board should not have discussed the draft policy in executive session.  “Preliminary drafts and notes” are indeed confidential, but once a draft is shared with members of a public agency, it is “part of the process by which governmental decisions and policies are formulated,” and, as such, is no longer confidential.  Accordingly, the discussion by the Nutmeg Board of Education of the proposed new policy should have been held in open session.