Freedom From Religion Foundation, Inc., et al., Plaintiffs-Appellees, Cross-Appellants,
Concord Community Schools, Defendant-Appellant, Cross-Appellee.
October 31, 2017
Appeals from the United States District Court for the
Northern District of Indiana, South Bend Division. No.
3:15-CV-463 -Jon E. DeGuilio, Judge.
Wood, Chief Judge, and Easterbrook and Sykes, Circuit Judges.
ancient times, people have been celebrating the winter
solstice, which occurs around the third week of December in
the Northern Hemisphere. Many of these celebrations are
religious in nature, and so in the modern United States they
have led to a depressingly steady stream of First Amendment
challenges, in which one party wishes to express its
religious views in the public sphere and the other party
asserts that the Establishment Clause would be violated by
case fits that pattern to a T. It arose in Elkhart, Indiana,
which is served by the Concord Community Schools. For nearly
half a century, Concord High School spread holiday cheer with
a "Christmas Spectacular"-a winter concert
featuring an elaborate, student-performed nativity scene.
Things changed, however, when some parents, a student, and a
non- profit organization objected to what they perceived to
be an impermissibly religious program. The school suggested
that the 2015 version of the show would reflect modest
alterations to the 2014 version. After the district court
preliminarily enjoined the school from putting on even the
revised show in 2015 as proposed, Concord scrubbed more of
the religious content from the show.
district court agreed with the plaintiffs that the 2014
Spectacular and the version initially proposed for 2015
violated the First Amendment's Establishment Clause and
awarded nominal damages. But the court sided with the school
in finding the latest version of the show constitutional.
Because we also find that the school's second round of
adjustments to the Spectacular were enough to push it over
the line for compliance with the Constitution, we affirm the
judgment of the district court.
decades, students at Concord High School have staged and
performed the Christmas Spectacular, a holiday show featuring
students' choral, instrumental, and dance performances.
The students not only perform, but also handle the design and
creation of costumes, sets, and props. They spend months
preparing for the annual show in their performing arts
classes and extracurricular activities. Concord's
production is extraordinary: it involves about 600 students
and puts the lie to those who suggest that arts and music are
not important parts of a high school program. While the
Spectacular showcases the talents of Concord students, it
also celebrates the holiday season, with a particular focus
August 2015, the Freedom From Religion Foundation, Inc.
("FFRF"), a non-profit organization focused on
defending the constitutional line between church and state,
wrote a letter to the school's superintendent on behalf
of one of FFRF's members, a parent of a Concord High
School student. FFRF expressed concerns about the religious
nature of the Spectacular's second half. After the
superintendent found no merit in the parent's position,
FFRF, along with the parent and his child, sued the school,
alleging that the Christmas Spectacular violated the First
Amendment's Establishment Clause. Two more parents later
joined the suit. Because the school made changes to the
program over the course of litigation, we describe each of
the different iterations at issue.
the first half of the show, which featured non- religious
pieces tied to an annual theme, varied from year to year, the
second half did not. For 45 years (through 2014), Concord
followed a consistent script, to which we refer as the
"2014" show. The 30-minute second half contained a
20- minute segment called "The Story of Christmas."
This section included religious songs interspersed with a
narrator reading passages from the New Testament. Student
actors walked across stage (as if going to Bethlehem) before
posing for a nativity scene; in all, this lasted about 12
Plaintiffs took issue with this portion of the Spectacular in
their initial letter and subsequent lawsuit. That suit, filed
in October 2015, asked for declaratory and injunctive relief,
as well as nominal damages and attorneys' fees. With
December fast approaching, the plaintiffs asked the district
court for a preliminary injunction to prevent the school from
performing the 2014 version of the second half in the
December 2015 show. Before the court ruled on plaintiffs'
motion, Concord volunteered to make two changes to the 2015
program (the "proposed" version). First, it said
that it would remove the scriptural reading from the nativity
scene, which otherwise would remain unchanged. Second, it
added two songs to kick off the second half: "Ani
Ma'amin" and "Harambee." These
performances were intended to represent Hanukkah and Kwanzaa.
district judge concluded that the proposed edits did not
adequately address the Establishment Clause problems, and so
on December 2, 2015, it granted a preliminary injunction
forbidding the school from performing the proposed version.
In response to the district court's ruling, Concord
quickly edited the Spectacular further. The post-intermission
segment actually performed in 2015 (the "2015"
show) is, to our knowledge, the one performed in 2016 and
2017. The first half, "The Magic of the Season, "
continues to feature seasonal and non-religious songs and
skits, such as "Winter Wonder- land, " "Text
Me Merry Christmas, " and "Secret Agent
Santa." It lasts about an hour.
second half, "The Spirit of the Season, " is still
about a half-hour in length and takes a more reverential
tone. After announcing that the Spectacular will now
"observe the many cultural celebrations during this
holiday season, " the show spends about four and a half
minutes each explaining and performing a song to represent
Hanukkah and another for Kwanzaa. Images are projected onto
large screens to accompany both songs. For the remaining 20
minutes, students per- form numerous Christmas songs that are
more religious in nature (e.g., "Jesus, Jesus,
Rest Yo u r Head, " "O Holy Night"). During
one of the songs, a nativity scene appears on stage for two
minutes. The manger uses mannequins, not student actors.
There are no New Testament readings. In February 2016, the
plaintiffs amended their complaint to allege that the 2015
version was also unconstitutional.
2016, both parties moved for summary judgment. The district
court ruled that the 2015 show did not violate the
Establishment Clause and granted partial summary judgment in
favor of Concord. After supplemental briefing on whether the
plaintiffs' challenges to the 2014 and proposed versions
were moot, the court decided that they were not. It granted
the plaintiffs a declaratory judgment that the 2014 and
proposed versions were unconstitutional and awarded $10 in
nominal damages; it denied ...