Hark! The Herald Angels Sing — Or Maybe Not

charles-c-haynes Commentary
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

’Twas the nightmare before Christmas late last month for Michael Stratechuk of Maplewood, N.J., when a federal appeals court upheld a local school district policy barring religious music from school events during the holiday season.

Stratechuk, a parent with two children in the district, filed suit in 2004, arguing that eliminating sacred music from holiday programs discriminates against Christianity in violation of the First Amendment. On Nov. 24, the 3rd U.S. Circuit Court of Appeals disagreed, ruling that public schools are not constitutionally compelled to include religious music.

Students in the South Orange-Maplewood School District do study some religious music in the curriculum. But school administrators decided that one way to ensure “religious neutrality” in the schools was to make holiday programs religion-free zones.

While Stratechuk vows to continue his legal battle all the way to the U.S. Supreme Court, two outraged Californians are determined to put the Christmas carol conundrum up for a vote.

Last month, Merry Susan Hyatt (yes, her real first name) and her brother, David Joseph Hyatt, began gathering signatures to put a referendum on the November 2010 ballot that would require California public schools to include Christmas music in classrooms and assemblies during the holiday season.

Signing up 433,971 registered voters by March 29 is no easy task, but Merry Hyatt — a substitute teacher with horror stories about schools that celebrate Christmas without Christ — is confident that churches will line up to help. She may be right. After all, in referendum-crazed California, anything is possible.

Oddly enough, the Hyatts’ ballot initiative doesn’t explicitly define “Christmas music” as religious — which would likely have the unintended consequence of adding more renditions of Frosty and Rudolph to the playlist. But even if victorious next November, the measure might not pass constitutional muster.

Courts have consistently ruled that including religious songs in school events is constitutional, as long as the program is educational and not devotional or proselytizing. But any state mandate that sacred music must be a part of holiday programs is likely to run afoul of the establishment-clause prohibition on government endorsement of religion.

The First Amendment solution is stunningly simple: Schools should plan holiday programs that are educational in purpose and balanced in content. Nothing in the First Amendment prohibits public schools from educating students about music, religious and secular, as part of a comprehensive music program that exposes students to a variety of traditions and cultures.

Of course, it is also true that nothing in the First Amendment requires schools to include religious songs (as Michael Stratechuk has discovered). But millions of Americans celebrate Christmas in December, and for schools to pretend that Christmas either doesn’t exist or is entirely secular is just plain silly.

For those who are nostalgic for the “good old days” in public schools when we all sang the same songs, it’s worth recalling that Americans have been fighting about the role of religion in schools since the founding of public education.

In the 19th century, lest we forget, we fought Bible Wars over whose version of the Scriptures would be read in schools — Protestant or Catholic. Riots broke out, churches were burned. In other words, there were no good old days. We were divided over religion then, and we are divided over religion now.

Since somewhere in the firmament it is written that every public school must have a holiday concert in December, school officials need to get it right. That means ignoring the Restorers who want to re-impose an earlier regime by converting school auditoriums into local churches. But it also means ignoring the Removers who seek to eliminate all mention of religion in public schools.

In this, our season of perennial discontent, a little good will combined with a dose of common sense is the best recipe for school holiday programs we can all cheer.

Charles C. Haynes is senior scholar at the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: E-mail: [email protected].