Sherry Hall Culves 2013-11-05 09:29:13
Advice to follow during the upcoming holiday season to stay on the right side of the law and make your schools welcoming places for everyone Twas the night before Christmas Winter Break when all through the school, There exists not a sign of religion nor reference to Yule. The secular décor was hung in the classes with care, In hopes that no lawyer soon would be there. The symbols of faith were nestled all snug in their drawers, While visions of Santa and snowflakes hung on the doors. And the teacher in her “holiday sweater” and I in my bow Had just settled down to watch a neutral student show. When out on the court steps there arose such a clatter I knew all our planning would soon really matter. Our country’s traditions are rooted in principles of “One Nation Under God,” “In God We Trust,” and “God Bless America.” However, our society and our schools increasingly are pluralistic, with students coming from many different religious, ethnic, and cultural backgrounds. Schools walk a tightrope between protecting an individual’s rights to freedom of religion, speech, and expression versus avoiding the First Amendment’s Establishment Clause prohibitions. As a result, what used to be known as the Christmas holiday season has long ago become the winter holiday season. When recitals used to be filled with classic carols and traditional Christian hymns, they are now carefully planned as secular, content-neutral events. Does all of this mean that schools must remove any signs of Christmas—either the Christian holiday or the commercialized version—and that individuals must shed their own religious beliefs and holiday spirit? These suggestions can guide you to stay not only on the right side of the law, but also to make your schools welcoming for all of your students, staff, and families. On the First Day of Christmas, My Lawyer Said to Me: Watch Those Decorations! Holiday displays should be temporary in nature. Secular symbols such as snowmen, reindeer, Santa Claus, snowflakes, and candy canes are all allowed. Christmas trees have become a secular symbol of the winter holiday season and do not violate the Establishment Clause. If you use a religious symbol, such as a nativity scene, you must also include other religious symbols, such as menorahs, dreidels, kinaras, etc. You also must ensure that the primary purpose of the religious symbols is to show examples of cultural and religious heritage, not to teach religion. Finally, the religious symbols should not be substantially larger or more prominent than the secular decorations. On the Second Day of Christmas, My Lawyer Said to Me: Make Reasonable Accommodations! Requests for time off to observe religious holidays should generally be given. Unless you have sound reasons to suspect abuse, don’t question an employee’s or student’s adherence to their faith. Courts have struck down school policies that limited students or teachers to just two excused absences a year for religious reasons. Instead, apply your policies neutrally—allowing employees to use their personal days as paid time off, and taking any excess holidays off as leave without pay. Students should be marked as “excused” and be allowed to make up work when taking time off for religious observances. On the Third Day of Christmas, My Lawyer Said to Me: Teach Historical Context! Educators may teach about religious holidays, but not promote religion or celebrate a religious holiday at school. So long as the purpose of the teaching is to educate students about the history and meaning of various holidays, the activity should be allowed. Teachers should be careful to ensure that the material is presented objectively and does not promote or inhibit any faith. Additionally, teachers would be wise to send communications home to parents about what is being taught in order to avoid misperceptions and to be respectful of any potential concern. On the Fourth Day of Christmas, My Lawyer Said to Me: Have Your Party But Don’t Get Carried Away! Holiday parties are allowed at school. “Christmas” parties are not. Ask yourself whether the party sends a message of government-endorsed religion, or whether the party simply promotes a time of inclusion, sharing, and giving. Holiday parties can be a great venue to practice character education principles such as philanthropy, proper manners, love, kindness, acceptance, etc. Giving to the needy, sharing our blessings and talents, and respecting each other’s beliefs are all appropriate focuses of celebration. On the Fifth Day of Christmas, My Lawyer Said to Me: Don’t Discriminate! School districts are prohibited from discriminating against employees based on their religious beliefs, and also from discriminating against students’ rights to exercise their religious expression. School systems should train administrators on recognizing and protecting the various rights that employees and students enjoy, and should include a complaint and resolution mechanism within the district to remedy any concerns. Naturally, any discovered acts of discrimination should be dealt with swiftly, and protections should be put in place to prevent any instances of retaliation. On the Sixth Day of Christmas, My Lawyer Said to Me: Make Your Concerts Balanced and Inclusive! Courts have not banned faith-based music or art at holiday programs and concerts. However, courts have held that musical programs should not be dominated by religious music, and that if nonsecular songs are used, then a variety of pieces from different religions should be included in order to ensure that one religion is not advanced over another. Concerts or programs that promote the knowledge of various cultural and religious heritages are permissible, and courts have recognized this as a proper way for students to fully appreciate our various cultures. In evaluating any Establishment Clause claims, courts will look to surrounding evidence such as the location of the event, the program insignia used, and the décor, so be sure to keep those secular and neutral as well. On the Seventh Day of Christmas, My Lawyer Said to Me: Don’t Forget Your Policies! School lawyers are fond of saying, “The only thing worse than not having a policy at all is having one and not following it.” Many school systems have simple policies that prohibit the entanglement of church and state, but do not prescriptively describe the actions to be taken. If your system has a specific policy, you should be sure to include it in your annual training, and take steps to ensure that it is followed in your district. Distributing the policy in advance of the traditional holiday season is a proactive step you can take. While a violation of a policy, in and of itself, does not necessarily make a successful legal claim, it certainly lends support to the suing party’s case. On the Eighth Day of Christmas, My Lawyer Said to Me: Be Careful About Religious Fliers! Material distribution policies and decisions are a hotbed for lawsuits. Policies that prohibit the distribution of religious fliers but allow fliers from other community groups will be struck down as an unconstitutional. On the other hand, there have been numerous cases finding violations where religious literature was distributed directly to students by outside groups. The rules vary depending on whether students, staff, or third parties are the ones distributing the literature. The rules also vary depending on the age of the children, the forum in which the material is being distributed, and whether the materials are being handed directly to the students or simply being made available for pick up. If your district has not reviewed its material distribution policy with your lawyer in advance of this holiday season, now is the time. On the Ninth Day of Christmas, My Lawyer Said to Me: Watch What You Wear! Teachers should wear holiday sweaters that focus on secular symbols as described above. A small inclusion of a religious symbol will not ban the entire outfit, but should not be prominently displayed. Students enjoy the freedom of expression at school, and if uniform policies or dress codes are lifted during the holiday season to allow students to wear holiday attire, then students may wear clothing that promotes their particular religion. On the 10th Day of Christmas, My Lawyer Said to Me: Keep the Faith! Simply because an individual goes to work for a public school district does not mean that he or she must shed personal religious beliefs. The prohibition is against proselytizing or attempting to advance or discourage a religious faith to our students. Educators may keep copies of their Bible or Koran in their personal belongings and engage in prayer when students are not around. Educators may even form faith-based study groups amongst themselves so long as such groups are nondiscriminatory or harassing of others, are purely voluntary, and meet during nonworking hours. On the 11th Day of Christmas, My Lawyer Said to Me: Take Complaints Seriously! Few issues ignite passion and debate as much as the tension between our rights to freedom of religion and expression versus the prohibitions contained in the Establishment Clause. When complaints do come in, administrators would be wise to treat them as a top priority. Not only are they fertile grounds for costly litigation, they also can divide a community, draw national media attention, and create a major distraction to the educational focus of the school. Treating the concern with respect, open communication, and an inclusion of stakeholders with differing viewpoints will go a long way toward warding off expensive legal claims. On the 12th Day of Christmas, My Lawyer Said to Me: Call Me Before You Make a Mistake! The law in this area evolves on a regular basis. School districts cannot simply “err on the side of caution,” as the law prohibits both the advancement and the inhibition of religion. School leaders would be wise to seek guidance from their district lawyer before the start of the holiday season. Policy review, training, and proactive guidance can help you avoid making a decision that violates any one of a number of rights held by our students, employees, and community. Sherry Hall Culves (email@example.com) is a partner at Jones, Cork & Miller, LLP, in Macon, Ga., and a member of NSBA’s Council of School Attorneys. She is a frequent speaker in the area of education law.
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