By M.H. Cavanaugh
Christian Action League
December 16, 2016
“No one was particularly happy with the outcome of this,” Tim Simmons, a Wake County schools spokesman told the Raleigh News and Observer. “Some schools had been participating for several years.”
Simmons was referring to a recent decision by the Wake County school system to prohibit school choirs from participating in the annual Apex Christmas Nativity Celebration.
The Christmas festivity hosted by the Church of Latter-day Saints features nativity scenes. According to the nativity event’s website, “People throughout the area representing many faiths, loan their personal, treasured nativities for the celebration. Each set offers a unique representation of the birth of Christ.”
Choirs from Holly Springs High School, Holly Grove Elementary School, and Fuquay-Varina High School, were among the schools known for performances at the festival.
Barring the school choirs from further participation was made after persistent complaints from the Wisconsin-based Freedom From Religion Foundation (FFRF). The organization, which brags about its nearly 25,000 non-religious members and chapters across the country, contacted the Wake County school district after learning a church official said the celebration was “an opportunity to share the wonder and love of the Savior.”
In a news release by FFRF, the organization’s Staff Attorney Patrick Elliot said, “It is well settled that public schools may not advance or endorse religion…In order to avoid perception of school endorsement of a religious message, schools must not participate in overtly religious events.”
Simmons told the N&O Tharrington Smith (the district’s attorney), advised participation would “put the district in the position of potentially endorsing a religious viewpoint,” and violate the separation of church and state. Simmons also said, “the Apex decision doesn’t prevent schools from participating at other nativity events as long as those events are not an unconstitutional endorsement of religion.”
FFRF, Laurie Gaylor Co-President, responded to the school system’s decision with elation, saying, “It’s great that officials finally realized the dubiousness of school attendance at such an obviously religious ceremony. It was unacceptable that public school choirs were performing at this function.”
Dr. Creech, executive director of the Christian Action League, said he only learned of the decision by Wake schools after-the-fact.
“It’s sad that Wake schools were a victim of the half-truths, bold-faced lies, and bullying tactics of the FFRF,” said Dr. Creech.
“The FFRF promotes the myth that ‘separation of church and state’ means you have to scrub all religious references from the public square or that the state cannot acknowledge God, Christ, or religious principle. These non-religious zealots – these evangelists for atheism – are depriving our children of the cultural enrichment that comes from their exposure to religion,” Dr. Creech opined.
Dr. Creech added that he had contacted colleagues from Liberty Counsel (LC), an international non-profit litigation organization that specializes in religious liberty issues and asked them their assessment of the case. He said, Richard L. Mast Jr., Senior Litigation Counsel for LC responded in an email with the following analysis:
“As usual, the FFRF provides an incomplete picture of the law regarding sacred music, and school choirs singing in religious venues. School districts should not ban sacred music from choir repertoires, nor choirs themselves from singing in sacred venues. Both are constitutional, provided the intent of the district for doing so is for valid secular reasons, like appreciation of diversity, whether in art, culture, or music. There is no indication the district had an improper purpose here, no matter the subjective intent or hopes of the venue’s hosts.
“The best leading case factually similar to the situation here is Bauchman v. West High School. In Bauchman, the 10th Circuit upheld the school-sponsored performance of Christmas music not only in secular venues, but also in religious venues, including numerous churches. In dismissing a challenge to the music teacher’s “selection of the musical curriculum, including songs of an explicitly religious character, and the selection of explicitly religious sites for some performances,” the court found “a primarily secular purpose—to teach musical appreciation, to broaden the students’ understanding of musical culture, and to increase the students’ awareness of culture and diversity.” Bauchman v. West High School, 900 F.Supp. 254, 268 (D.Utah 1995), aff’d sub nom. Bauchman for Bauchman v. W. High Sch., 132 F.3d 542 (10th Cir. 1997).
“Citing Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, (1995), in which Justice O’Connor of that court said that the “reasonable observer” standard is an “objective inquiry” that “is not about the perceptions of particular individuals or saving isolated non-adherents from the discomfort of viewing symbols of faith to which they do not subscribe,” the court in Bauchman concluded “that the singing of Christmas carols and religious songs at Christmas time—not in conjunction with religious services—does not constitute the establishment of religion from the objective standpoint of a reasonable observer. The West High Christmas concerts during the school year 1994–95 were not without secular purposes or objectives and were not motivated by wholly religious purposes.” Bauchman, By & Through Bauchman v. W. High Sch., CIV. 95-C-506G, 1996 WL 407856 (D. Utah May 30, 1996) aff’d sub nom. Bauchman for Bauchman v. W. High Sch., 132 F.3d 542 (10th Cir. 1997) (Emphasis added).
“Liberty Counsel would have preferred that the school district ignore the FFRF letter, instead of banning school choir performances at the Apex Nativity Celebration. The district has stated that the Apex decision “doesn’t prevent schools from participating at other nativity events as long as those events are not an unconstitutional endorsement of religion.” Liberty Counsel is, therefore, prepared to defend other Christmas events if the district is true to its word.”
LC provides pro bono assistance and representation on these and related topics.
The average daily enrollment in Wake schools is more than 159,000 students. It’s the largest school system in North Carolina and the 16th largest in the nation. Its student population has tripled since 1980 and is expected to have roughly 10,000 additional children by the year 2020.