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Freedom From Religion Foundation v. Concord Community Schools

United States District Court, N.D. Indiana, South Bend Division

September 14, 2016



          JON E. DEGUILIO Judge United States District Court

         This began as a case about a living nativity scene. For the finale of its annual holiday show, called the Christmas Spectacular, Concord High School would present a living nativity scene during which students in costumes portrayed various nativity figures, while multiple ensembles from a cross-section of the performing arts department played a number of religious songs and a faculty member read excerpts from the Bible telling the story of Jesus' birth. This practice continued for many years. In 2015, however, a student and his father, along with the Freedom From Religion Foundation, filed suit, asserting that the religious content of the Christmas Spectacular violated the Establishment Clause. In response, the School made some changes to that portion of the show, proposing to omit the Bible readings and to add songs celebrating other winter holidays. The Court found, though, that even with those changes, the proposed show was still likely to violate the Establishment Clause, so the Court granted the Plaintiffs' request to enjoin the presentation of a living nativity scene as part of the 2015 shows.

         The show that was actually performed in 2015 thus bore little resemblance to the religious presentations of previous years. It did not include any Bible readings or a living nativity scene-the two subjects of the Plaintiffs' motion for a preliminary injunction. And while the show did include a brief display of a nativity scene (composed of mannequins), that scene was on stage for less than two minutes as the visual complement to a single song performed by a single ensemble. The presentation of the nativity scene was thus not differentiated from the rest of the show, which featured a wide and engaging variety of visuals to augment the respective musical performances, including images and videos projected onto screens, dancing, choreography, costumes, and lighting displays.

         After the 2015 show, the Plaintiffs amended their complaint to assert Establishment Clause challenges against each of those three versions of the show-the show as it was performed in 2014 (and previous years); as it was proposed in 2015, prior to the preliminary injunction; and as it was actually performed in 2015. The parties have now filed cross-motions for summary judgment. For the reasons that follow, the Court finds that the show that was actually performed in 2015 did not violate the Establishment Clause. As to the first two shows, the Court orders supplemental briefing as to whether those claims remain live, and as to what remedy may be appropriate.


         Concord Community Schools is a public school corporation located in Elkhart County, Indiana. It serves approximately 5, 300 students from four elementary schools, one intermediate school, one junior high school, and one high school-Concord High School, which has an enrollment of about 1, 700 students. Concord High School has a performing arts department that involves approximately half of the students at the school. The department includes a marching band, three different concert bands, two jazz bands, a pep band, a string orchestra, a symphony orchestra, and six different performance and show choirs. The department also offers other artistic outlets, with programs in dance, theatre, and stagecraft.

         The performing arts department presents a number of programs throughout the school year that allow the students to experience performing in front of live audiences. Those include an annual musical, a variety show, a band festival, a choral pops concert, a jazz café, and a Christmas show, which is at issue here. The Christmas show originated in 1970 after the marching band attended the Radio City Christmas Spectacular during a trip to New York City. Every year since then, the School has presented the Christmas Spectacular, modeled after the Radio City version, as its holiday show. The Christmas Spectacular typically includes performances from two string orchestras, a symphony orchestra, a concert band, two jazz bands, five choirs, and small chamber groups. It also includes dance teams, students from the drama program, and stage technicians, and involves over 600 students in total. The Christmas Spectacular is performed five times each year, including four public performances over a weekend, and a school-day performance for younger students in the district on a Friday.

         The Christmas Spectacular traditionally runs about ninety minutes long, plus a fifteen minute intermission. The first portion of the show runs for about sixty minutes, and includes about twenty songs performed by the various ensembles. In the 2014 show, each of the songs for this portion of the show were listed on one page of the program under the heading “The Magic of Christmas.” This portion of the show was made up of secular songs relating to the Christmas season, like Jingle Bells, Deck the Halls, Carol of the Bells, Let it Snow, and White Christmas. Each song was generally performed by a different ensemble than the last, and the performances included a variety of visual complements to the musical performances, including images projected onto screens next to the stage, dancing, choreography, and lighting displays. Some performances also included costumes, props, and backdrops, and the auditorium was decorated in a holiday theme, with Christmas trees, lights, and garland.

         Each of the songs following the intermission in the 2014 show were listed on the next page of the program under the heading “The Spirit of Christmas.” This portion of the show began with three songs related to the religious Christmas holiday. The rest of the songs, which lasted about twenty minutes, were listed in the program under the subheading “The Story of Christmas, ” and one of the ensembles performing during this portion was listed as the “Nativity Orchestra.” This segment of the show had been performed in nearly the same manner since the Christmas Spectacular was first presented. It began with an announcement by a faculty member, stating: “Ladies and gentlemen: As we now present the Story of Christmas, we ask that you please hold your applause until the conclusion.” [DE 36-1]. Thereafter, the faculty narrator, reading from a script, told the story of the birth of Jesus, reciting portions of the story as it appears in the Bible, as the various ensembles played a medley of ten songs, including Angels We Have Heard On High, Away in a Manger, We Three Kings, and Hark, the Herald Angels Sing. Parts of the narration were read over the musical performances, while other portions were read in between. During the third song, O Little Town of Bethlehem, a backdrop depicting a landscape scene appeared in front of the orchestra on stage, and students dressed in costumes as Mary and Joseph slowly walked across the front of the stage, as if walking to Bethlehem.

         After a choir sang another song, the curtain raised to reveal a nativity scene on stage. The students dressed as Mary and Joseph stood over a manger inside a set depicting a stable. On each side of Mary and Joseph inside the stable stood three students dressed in white robes, portraying angels. More students dressed as shepherds stood on the sides of the stage outside of the stable. All of the students stood still in their places for the final twelve minutes of the show, while six songs were played. During the third-to-last song, We Three Kings, three more students dressed as the three wise men slowly walked on stage, one at a time, and took their place in front of the nativity scene, as if presenting their gifts to Jesus. Once the performers concluded the final song, a recorded version of Joy to the World began playing, and the nativity scene remained on stage for about another forty-five seconds as the audience applauded, until the curtain dropped.

         After the performance of the 2014 show, the Freedom From Religion Foundation sent a letter to the School, objecting to the presentation of the Christmas Spectacular as a violation of the Establishment Clause. The Freedom From Religion Foundation is a not-for-profit organization that advocates for the separation of church and state, and it wrote the letter on behalf of one of its members, John Doe, [1] a parent of a student who had performed in the 2014 show. After receiving the letter, the School's superintendent read a statement at a school board meeting on September 8, 2015, during which he defended the Christmas Spectacular and indicated that the School would not comply with the Freedom From Religion Foundation's request to remove the religious aspects of the show.

         Accordingly, on October 7, 2015, the Freedom From Religion Foundation filed suit, along with John Doe and his son, Jack Doe. They then moved for a preliminary injunction, asking the Court to prohibit the School from including the live nativity scene and the Bible readings portraying the story of the birth of Jesus as part of the Christmas Spectacular. [DE 13]. After the motion was filed, the School indicated that it intended to make two changes to the show as compared to previous shows. First, it decided to omit the narration that included the Bible readings. Second, it added songs pertaining to Chanukah and Kwanzaa in the second half of the show. The School planned to have the show resume after the intermission with one of the string ensembles playing “Ani Ma'Amin, ” in reference to Chanukah, after which one of the choirs would sing “Harambee, ” in reference to Kwanzaa. During each of those performances, images reflecting those holidays would be projected onto screens next to the stage, such as a menorah or a dreidel for Chanukah, and candles or a mat for Kwanzaa. After those songs, the Christmas segment would then be performed the same as in the past, except for the narration. In addition, each of the three holidays would be introduced by a student reading a short script noting the cultural significance of the respective holiday. The Chanukah and Kwanzaa segments were expected to last three or four minutes each, while the Christmas segment, as before, would last about twenty minutes, with the nativity scene on stage for the final twelve minutes. Ultimately, the Court found that the show as proposed by the School was still likely to violate the Establishment Clause as an endorsement of religion, so it granted the Plaintiffs' motion for a preliminary injunction. The School had already agreed to omit the narration from the Bible about Jesus' birth, but the Court granted the Plaintiffs' remaining request and enjoined the School from presenting a nativity scene composed of live performers as part of the 2015 Christmas Spectacular shows.

         As in past years, the Christmas Spectacular that the School presented for its performances in December 2015 began with about twenty individual performances by many of the School's bands, orchestras, and choirs, as well as several solos and small-group performances.[2] These performances were almost entirely secular in nature, and were not affected by the injunction. As in the past, they also included a wide range of visual complements to the musical performances. For example, two string ensembles played songs by the Trans-Siberian Orchestra, during which they stood towards the front of the stage with the lights dimmed, while stage lights overhead presented a light show in synch with the music. The dance team performed for two songs in which they presented choreographed dance routines using costumes and props, one of which was accompanied by the combined bands. Many of the choir pieces included choreography, dancing, and movement about the stage. During other songs, images were projected onto screens to the sides of the stage, or videos were projected onto a screen over the center of the stage. Still others included backdrops, stage decorations, or costumes. This portion of the show lasted about seventy-three minutes, concluding with the intermission.

         After the intermission, the show resumed with a student reading the following introduction: “Welcome to the Spirit of the Season, where we observe the many cultural celebrations during this holiday season.” She then continued with an introduction of Chanukah:

Our first holiday we will celebrate tonight is Chanukah, also known as the Festival of Lights. Chanukah is a Jewish holiday commemorating the rededication of the Holy Temple, also known as the Second Temple, in Jerusalem. Chanukah is observed for eight days and nights, by the lighting of a candle held in a unique candelabrum, called a menorah, each night of the holiday. “I Believe” is the English translation for the title of our first selection that is performed during Chanukah. Performing Ani Ma'Amin, here are the Concord Chamber Strings.

         The string ensemble then played Ani Ma'Amin, which lasted about four minutes, as images reflecting Chanukah and the Jewish faith were projected onto the screen to the side of the stage.

         After that performance concluded, the student then read the following introduction of Kwanzaa:

Kwanzaa is a week-long celebration held in the United States and in other nations where Western African population centers exist. The celebration honors African heritage in African-American culture, and is observed the last week of the year, culminating on January 1st with a feast and gift-giving. Kwanzaa possess seven core principles represented by seven candles. Harambee is chanted after the 6th day of celebration dedicated to creativity. Please enjoy the Symphonic Choir as we celebrate Kwanzaa with Harambee!

         The choir then sang Harambee, as images associated with Kwanzaa were projected onto the screens. This performance also lasted about four minutes.

         The remaining songs during the show were each associated with the Christian Christmas holiday. These performances, including the spoken introduction, lasted about twenty-two minutes. After a choir sang a song entitled One Amazing Night, the student read the following introduction for the Christmas holiday:

Our country's Christmas season originated and is based on the Christian celebration of the birth of Jesus Christ. The Bible tells the story that Jesus was born to poor parents in a small town; angels announced his birth and he received many visitors, from shepherds to kings, in the manger where he was born. He worked as a carpenter and for three years as a traveling preacher. He had no family and never traveled far from his birthplace. The Bible recites that in his early 30s, Jesus was tried and executed. His life, particularly his birth and death, now serve as the basis of the celebration of two major holidays widely recognized by many throughout the United States and the world.

         Various ensembles then performed the final eight pieces of the show. As compared to the proposed version of the show, two of the proposed songs during this sequence were removed, while one, a piano solo, was added. As before, the image of an angel was projected on the side screen as a choir sang Angels We Have Heard on High. However, no student actors walked across stage during the performance of O Little Town of Bethlehem, as they had in the past.

         After the piano solo, the main curtain lifted to reveal a nativity scene on stage. Given the injunction, the scene did not include any student performers. Instead, five mannequins, depicting Mary, Joseph, and the three wise men, were situated inside the stable set. Unlike previous years, no angels were inside the stable and no shepherds were outside of it. The choir then sang O Holy Night, after which the lights dimmed and the nativity scene was not seen again. In total, the nativity scene was on stage for less than two minutes. The show then concluded with two songs jointly performed by the choirs and orchestra, after which a recording of Joy to the World played while the audience filed out of the auditorium.

         After the performances of this show, the Plaintiffs filed an amended complaint. In addition to challenging the show that the School presented in 2014, the amended complaint added claims challenging the versions of the show that the School proposed to present in 2015, prior to the issuance of the preliminary injunction, and the show that the School actually presented in 2015. As to each of those three versions of the show, the Plaintiffs seek a declaratory judgment that the show was unlawful and a permanent injunction against presenting those versions of the show in the future. They also seek nominal damages and attorneys' fees. Finally, the amended complaint added two additional plaintiffs, both of whom are individuals with family members who have performed in the Christmas Spectacular. After a brief period for discovery, the parties have both moved for summary judgment, and those motions have been fully briefed.


         On summary judgment, the moving party bears the burden of demonstrating that there “is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A “material” fact is one identified by the substantive law as affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists with respect to any material fact when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Where a factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)). In determining whether a genuine issue of material fact exists, this Court must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in that party's favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); King v. Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999). However, the non-moving party cannot simply rest on the allegations contained in its pleadings, but must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).


         The Plaintiffs assert that three different versions of the Christmas Spectacular violated the Establishment Clause: (1) the version presented in 2014; (2) the version the School proposed to present in 2015 prior to the issuance of the preliminary injunction; and (3) the version the School actually presented in 2015. The Court addresses the first two versions together, as they share common questions as to the Court's continuing jurisdiction and as to what remedies may be appropriate should the Court adjudicate those claims in the Plaintiffs' favor. The Court then addresses the 2015 show that was actually performed.

         A. Christmas Spectaculars as Performed in 2014 ...

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