Judge Says Nativity Scene in Indiana School District’s Holiday Concert Was Legal

More than a year ago, I posted about Concord High School in Indiana, where the holiday concert included a full-blown Nativity Play:

You could even watch it on YouTube (1:20:09):

The Freedom From Religion Foundation had written a letter to the District back in August of 2015 warning them against doing it again:

It is illegal for a public school to endorse religion to students by organizing a religious performance, such as acting out the exclusively Christian legend of Jesus’s birth. The performance has a clearly devotional message and thus would be appropriate in a church setting, but not in a public school…

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Centering the high school’s holiday concert around the nativity is illegal even if participation in the nativity scene is voluntary…

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The simple solution is for Concord Community Schools to devise a winter concert centered around secular values like family, giving, and community, rather than focusing on the religious aspects of one specific holiday.

At a School Board meeting that week, the room was packed with Nativity defenders, one of whom was the District’s Superintendent:

District Superintendent John Trout read his prepared statement.

“For more than 30 years, the Spectacular has been an important part of the Concord High School holiday experience. It will continue to do so,” Trout said, adding that Concord Schools would not engage in a public media fight.

He also noted that participation in the Nativity scene is voluntary and the scene is rehearsed after school, and stated that this scene provides historical context to the holiday season.

A better administrator would know it’s irrelevant that participation in the Nativity scene was voluntary and that rehearsals took place after school. If it’s a part of the show, it’s an endorsement by the school, full stop. That’s why it couldn’t remain in there. No other religion received that much air time during the program, and there was no secular purpose for including the birth of Christ in the show. (It’s also irrelevant that the District, in response to FFRF’s initial letter, promised to include a couple of Hanukkah and Kwanzaa songs and eliminated direct Bible readings. That didn’t balance out the Nativity reenactment.)

The ACLU and FFRF called for the courts to put a stop to this since the administrators were too irresponsible to do it themselves, and U.S. District Court Judge Jon DeGuilio issued a preliminary ruling against the District in December saying they could not have the Nativity Scene in the upcoming concert.

Because the live nativity celebrates a religious message, which a government entity like Concord cannot endorse, DeGuilio ruled, “the Plaintiffs are likely to succeed on the merits on their claim that the inclusion of the living nativity scene in the show, as currently proposed, violates the Establishment Clause.”

“A live nativity is a shocking violation to encounter in a public school, which has no business directing students to engage in devotional, sectarian performances,” said FFRF Co-President Annie Laurie Gaylor. “This decision is a win for everyone who recognizes that there can be no freedom of religious belief without freedom from religion in government and in our public schools.”

That seemed pretty definitive. No live nativity!

It’s also worth noting that the plaintiffs in the case included a student who would be performing in the show and his father, so this wasn’t just some “outside” groups coming into the community. These were people in the community who asked national groups to help them resolve a problem in their hometown. If push came to shove and there was a lawsuit, the plaintiffs would have legal standing.

So how did all of that finally play out?

The concert took place in mid-December… and the Nativity scene was still there.

Saturday’s performance of the school’s Christmas Spectacular included a different version of the nativity scene where the school used statues instead.

The sold out crowd at Concord High School erupted with applause following the school’s use of statues to keep the nativity scene.

So it wasn’t a “living” Nativity. It was a “still-life” Nativity. It’s like they found a loophole…

Guess what? It’s the same damn thing. A puppet show promoting the birth of Christ would have been equally problematic.

As expected, though, the ignorant locals who believe it’s the District’s job to promote Christianity and no other faith were thrilled:

“I’d like to say ‘we won.’ There was a lot of happy people in there tonight,” said Doug Johnson, the grandparent of a Concord student.

“It’s very emotional. I was actually tearful when I came out,” said parent Roberta Gooding.

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“I felt like it was all done in very good taste and we could honor the birth of Jesus and still other cultures could be, could have their say as well,” said Gooding.

Just to paraphrase that last parent, the concert honored the Christian faith… while paying lip service to a few other groups that she can’t even bring herself to name specifically.

The Freedom From Religion Foundation has not yet responded to the school’s use of the nativity scene. But, many parents say they don’t care what the FFRF thinks.

They finally responded to the District’s negligence in February.

The FFRF filed an amended lawsuit — with two more plaintiffs added to the case. In addition to the father/son duo, the other plaintiffs were both fathers of students who took part in the Christmas Spectacular show.

To blunt the criticism so often leveled at church/state separation groups, FFRF wasn’t doing this for money. They were asking the courts to award the plaintiffs only $1 each in damages (in addition to the usual court costs and lawyers’ fees).

Yesterday, Judge DeGuilio issued his ruling on the amended complaint… and, for some reason, he said the revised concert that used mannequins in place of students for a Nativity scene was perfectly fine. Because even though it promoted Christianity, it didn’t do it for that long:

Here, in arguing that the 2015 show endorsed religion, the Plaintiffs largely argue that the Court found that the proposed 2015 show endorsed religion, and that the only change to that version was replacing the student actors with mannequins. That is simply not true, though. Not only did the nativity scene in the actual 2015 show not include live actors, it was only on stage for under two minutes, while a single ensemble performed a single song. Those changes fundamentally altered the nativity scene’s role in the show as compared to previous versions.

So if they staged the resurrection of Jesus in a minute, that would be okay, too? It makes no sense. Promotion of Christian mythology has no place in a public school holiday concert, whether it’s with live students or statues, whether it’s twelve minutes or two.

FFRF and the ACLU note that staging a nativity scene, live or otherwise, during a school event has no secular or educational purpose. “The nativity scene and the concert’s heavy focus on the religious aspects of Christmas send an exclusionary message to our clients and others that the school prefers Christians over non-theists and people of other faiths,” noted ACLU Senior Staff Attorney Heather Weaver.

The silver lining in the case is that the District still has to figure out how to make up for the inarguably illegal Nativity scenes they put on prior to this recent one. The judge asked both sides to submit additional briefs so the issue can be resolved soon.

It’s appalling, though, that this District got away with promoting a blatantly Christian story as if it represents secular culture. They got away with it because it’s considered tradition, and it’s considered tradition because Christians have gotten away with it. The FFRF and ACLU tried to end that cycle for good, but the judge refused to acknowledge the problem.

(Large portions of this article were published earlier)