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District court again rules against Concord Schools on ‘Christmas Spectacular’

March 8, 2017

A district court judge has once again entered judgment against a northern Indiana school district after finding it has not made “absolutely clear” that it will permanently nix overtly religious content from its annual Christmas program.

Judge Jon E. DeGuilio of the U.S. District Court for the Northern District of Indiana entered declaratory judgment against Concord Community Schools Monday, the latest in a series of judgments against the Elkhart school district stemming from its inclusion of a live nativity scene and reading of the Biblical account of Jesus’ birth in its annual Christmas Spectacular.

The American Civil Liberties Union and ACLU of Indiana brought the case of Freedom From Religion Foundation, et al. v. Concord Community Schools, 3:15-CV-463 on behalf of the FFRF, a local student, and local parents who expressed concern about the Biblical content in the public school-sponsored program. After the litigation was filed, the school proposed changes to its 2015 Christmas show – which would have eliminated the Bible reading but included an extended live nativity – but FFRF and the residents also took issue with that proposal, arguing that in a certain context, a nativity scene put on by a public school district would be a direct violation of the Constitutional Establishment Clause.

“The students standing there, portraying Biblical figures, we think that this is a great intrusion of religion into a public school setting,” said Gavin Rose, senior staff attorney with the ACLU of Indiana.

In previous litigation, the federal court ruled that the Christmas Spectacular, as previously performed, did, in fact, violate the Establishment Clause and issued a preliminary injunction against the proposed 2015 performance. The ACLU and FFRF then sought declaratory judgment, damages and a permanent injunction against the school district in the instant case. While DeGuilio ruled in favor of the plaintiffs on the first two complaints, he stopped short of issuing the permanent injunction.

In its filings in the current litigation, the school district opted not to address the ACLU and FFRF’s claims on their merits, but instead argued that the court lacked jurisdiction to consider the claims because they were moot. Per the testimony of Concord Superintendent John Trout in a submitted affidavit, the school district had decided through “informal conversations” to make permanent changes to its Christmas Spectacular to omit the objectionable content. Thus, because the school district had now voluntarily ceased the questionable actions, it held that the court did not have grounds to decide the case.

But DeGuilio disagreed, noting in his Monday decision that public opinion in Elkhart is strongly in favor of presenting the Christmas spectacular with the religious content. Rose pointed to a portion of DeGuilio’s decision that referenced a public survey, which found that 68 percent of voters wanted to resume the previous version of the nativity scene.

“All the school really did was they said they had informal conversations and community output that they are going to keep doing what they ultimately changed the program to,” Rose said. “But case law is very clear that they need to demonstrate something to prove that they’re not going back.”

As a remedy for the declaratory judgment, the district court awarded nominal damages to the plaintiffs of $1 for each time they were exposed to the Christmas Spectacular. Thus, Jack Doe was awarded $7 and John Doe, John Roe and the FFRF were each awarded $1.

In light of DeGuilio’s decision not to enter a permanent injunction against the school – a decision he made because “declaratory judgment affords the Plaintiffs the relief they seek” – Rose said the ACLU is hopeful that Concord Community Schools will continue to comply with the court order. While Monday’s opinion is the final step in the litigation for now, the ACLU is still looking at the issue of whether the Christmas Spectacular, as it has been amended, is constitutional, he said.

The court has previously held that the amended version – which uses mannequins in the nativity scene and utilizes less Christian imagery – is permissible because it is educational in nature. However, Rose said the ACLU is still concerned that the current version of the program is “still a 20-minute opus to the religious aspects of Christmas.”

In addition to the Christian themes throughout the program, Rose said the amended program also includes references to Hanukkah and Kwanza. While the ACLU has not looked into the permissibility of those religious aspects, the attorney said the Christian elements of the Christmas Spectacular are longer and more pronounced than other aspects of the show.

Trout said DeGuilio’s decision to enter declaratory judgment will not affect the current version of the Christmas Spectacular, which has already been altered to include the use of the mannequins instead of actual students in the nativity scene and the incorporation of other religious aspects, such as Hanukkah and Kwanza songs.

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