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The fourteen days of Christmas observance, a custom of Norway, is featured in the St. Mary's Academy holiday observance at a Denver school.
O Christmas tree, O Christmas tree…do you violate the establishment clause? Jack Riddle/The Denver Post via Getty Images

On the first day of Christmas…teachers got a legal headache over blurring the line between church and state

During a school year disrupted by pandemic-related closures, students across the U.S. will soon be absent for a scheduled reason: the annual Christmas break.

In New York City, the U.S.‘s largest school district, children will be off from Dec. 24 to Jan. 1. Officially called “winter” recess, the December hiatus coincides with Christian celebrations, adding to the number of approved days that many students take off from school on religious holidays, including Eid al-Fitr and Yom Kippur.

As an academic who writes and teaches on education and the law with a special interest in church-state issues, I find it fascinating to note how religious holidays came to be acknowledged in public schools. But these traditions also pose a legal challenge in the classroom and concern over blurring the line of separation between church and state. The reality is that in the lead-up to the winter break – or the “December dilemma,” as some call it – public school officials walk a fine line when it comes to what they can and can’t display in classrooms in relation to Christmas.

Holy days and holidays

The observance of selected religious holidays in public schools has a long history in the United States. When compulsory attendance laws emerged in the mid-19th century, they were heavily influenced by the religious beliefs and practices that followed the earliest European settlers to the American colonies.

In a piecemeal fashion that varied from one state to the next and even among school systems in the same states, school board officials recognized and broke for the Christian holidays of Christmas and Easter, including Good Friday.

The unofficial religion of American public schools until well into the mid-20th century was Protestantism and typically followed the teachings of the locally dominant Protestant churches.

Because Catholic immigrants – and their children – were often unwelcomed in the 19th-century United States, a meeting of bishops at the Third Plenary Council of Baltimore in 1884 decreed that all parishes had to maintain schools to which parents were obligated to send their children. As a result, time off for Christmas and Easter became firmly set in Catholic schools as it was in public schools.

Christianity remains the largest single faith in the United States. But growing religious diversity has seen more religious holy days being marked in public schools. Still, few school boards nationally close in honor of the Jewish holidays. And, until very recently, the holy days of other faiths were completely ignored. New York City was one of the earliest, acknowledging Muslim holidays from the 2015-16 school year.

Similarly, in 2017-18 six suburban school districts in New York state declared a holiday on the Hindu festival Diwali.

But these are the exception rather than the rule. A study of the 2017-18 school year, found that of the 20 largest school systems in the U.S., only New York City, Philadelphia and Palm Beach, Florida, closed for Rosh Hashana, and only New York City closed for Yom Kippur and Eid al-Adha. None of the school systems closed for Diwali.

Muslim holidays have been added to the school vacation days in New York City. AP Photo/Mark Lennihan

Things are changing in the face of growing religious diversity in the U.S. Educational leaders and lawmakers in states such as New York and Michigan have taken recent steps to ensure that the religious holy days of other faiths are commemorated in public school.

Mixed legal messages

Meanwhile the status of how religious holidays can be marked in class remains unclear. The Supreme Court has yet to address such a case directly. Arguably, the leading case on religious holidays arose 40 years ago, when the Eighth Circuit upheld guidelines that a school board in South Dakota developed for use in connection with religious observances, most notably Christmas.

The court suggested that explanations of historical and contemporary values relating to religious holidays were permissible, as was the use of religious symbols as examples and the integration of music, art, literature and drama with religious themes if they were presented objectively as a traditional part of the cultural and religious heritages of holidays.

Other rulings have teachers walking a fine, but murky, line. While the Supreme Court has ruled that educators cannot allow overt religious activities such as prayer and Bible reading in schools, justices added that “nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.”

The court has yet to set clear parameters about how religious holidays can be celebrated in public schools and whether granting access to all faith traditions is either constitutionally necessary or acceptable.

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To gift or not?

Classroom activities present three special concerns. Courts agree that public school teachers cannot permit religious activities such as prayer or the use of religious music in class absent curricular connections. The Sixth Circuit in 2008 went so far as to affirm that a fifth grader in Michigan could not sell candy cane Christmas tree ornaments he made as part of a school project if they were attached to religious cards “promoting Jesus.”

But a federal trial court in Texas two years later allowed students to sell “holiday” cards with biblical messages because doing so was not disruptive to school activities.

A second concern – the displays of religious art such as Nativity scenes or paintings – is trickier. Again, while there is no Supreme Court judgment in regard to K-12 schools, an argument can be made from lower court orders. One such case from South Dakota found that religious art in schools may be permissible as parts of larger displays but that it cannot be overtly Christian and must emphasize the secular aspects of the season. Under this interpretation, placing Nativity scenes or displaying religious objects or paintings alone in schools, regardless of the time of year, likely violates the First Amendment by endorsing Christianity.

A case illustrative of the confusion over classroom displays arose in New York City in 2006. The Second Circuit decided that public school officials could allow displays of menorahs during Hanukkah and stars and crescents during Ramadan because both were deemed multicultural secular symbols. But the court forbade the display of a Nativity scene due to its explicitly religious nature.

Gift-giving during the holiday season represents a third concern. Educators probably can permit “secret Santa” exchanges as long as they are secular in nature and do not invoke any references to Christmas. However, courts largely agree that teachers cannot allow students to exchange identifiable Christian gifts, such as candy canes or pencils with attached religious messages, while in class.

Teachable moments

What can be lost in this legal quagmire is, I believe, the chance to engage children in religious literacy. If educators and the courts prohibit students from learning about the religious traditions of their peers, especially when teachable moments emerge during holidays, one must wonder how children can develop tolerance of – and respect for – faiths different from their own.

The challenge, then, for public school educators is walking the fine line by exposing children to religious celebrations while steering clear of violating the Constitution by making certain that they teach about religion rather than proselytize a particular form of belief.

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