Skip to main content

'Silent Night' in schools is OK

By Danny Cevallos, CNN Legal Analyst
updated 1:17 PM EST, Tue December 24, 2013
Members of the news media record the arrival of the official White House Christmas Tree at the North Portico of the White House in Washington on Friday, November 29. According to the White House, the tree, on display in the Blue Room, is an 18.5-foot Douglas fir grown by Chris Botek, a second-generation Christmas tree farmer from Lehighton, Pennsylvania. Members of the news media record the arrival of the official White House Christmas Tree at the North Portico of the White House in Washington on Friday, November 29. According to the White House, the tree, on display in the Blue Room, is an 18.5-foot Douglas fir grown by Chris Botek, a second-generation Christmas tree farmer from Lehighton, Pennsylvania.
HIDE CAPTION
A White House Christmas Tour
A White House Christmas Tour
A White House Christmas Tour
A White House Christmas Tour
A White House Christmas Tour
A White House Christmas Tour
A White House Christmas Tour
A White House Christmas Tour
A White House Christmas Tour
A White House Christmas Tour
A White House Christmas Tour
A White House Christmas Tour
<<
<
1
2
3
4
5
6
7
8
9
10
11
12
>
>>
STORY HIGHLIGHTS
  • Danny Cevallos: A New York school district edited lyrics of "Silent Night"
  • He says courts have delved into issue of singing Christmas Carols in schools
  • First Amendment doesn't bar all religion from schools, but courts have set guidelines, he says
  • Cevallos: "Silent Night" is fine for a school choir in most cases

Editor's note: Danny Cevallos, a CNN legal analyst, is a criminal defense attorney practicing in Philadelphia, St. Thomas and St. Croix.

(CNN) -- Every year the holidays bring cold weather, family gatherings, gift-giving, and of course, the perennial debate over the Constitution and Christmas. Recently, a Long Island school district drew criticism following a performance that removed the holier lyrics from the traditional Christmas song "Silent Night."

Some parents objected when the fifth-grade choir at the school in Kings Park, New York, left out phrases such as "Christ the Savior".

The school superintendent said the principal and choir director removed the references to avoid "offense to people of other faith," according to Newsday.

Danny Cevallos
Danny Cevallos

But regardless of the reason, would it be legal for a school choir to perform "Silent Night" in its traditional form?

To enter the fray we have to understand some of the basics about the often-uncertain relationship between the First Amendment and public schools.

First, let's dispel the myths: The First Amendment does not ban all mention of any religion in public schools. As the Supreme Court has noted, "total separation (between church and state) is not possible in an absolute sense."

Choir's 'Silent Night' omits Christ

After all, when our kids study world history, they are often studying religion. Wars, civilizations, exploration, and human culture have always been motivated in part by some form of dogma.

To filter religion out of history leaves something that cannot, in good faith, still be called history. And while some Christmas music consists of light-hearted fare, other pieces are authored by Handel or Bach, and have undeniable value in a musical curriculum. Religion has always been a part of our civilization; the Constitution and our courts recognize this.

Instead, the Establishment Clause only prohibits the "advancement" or the "inhibition" of religion by the state. Of course, that's a distinction that's much easier to describe than it is to identify in real life. When does a school cross the line into advancing or inhibiting religion?

In 1971 the United States Supreme Court decided Lemon v. Kurtzman and formulated the "Lemon Test," which is a three-pronged evaluation of the constitutionality of legislation concerning religion. A court will consider the following:

1. The government's action must have a secular (non-religious) purpose.

2. The government's action cannot have the principal or primary effect of (a) advancing religion, or (b) inhibiting religion. It would be impossible to develop a public school curriculum that did not in some way affect the religious or nonreligious sensibilities of some of the students or their parents. Therefore, the test is not "any effect." Rather, the courts will look to the "principal or primary" effect.

3. The government's action cannot "excessively entangle" itself with religion -- that is, it cannot intrude into, participate in, or supervise religious affairs.

So how does this apply to singing Christmas carols in school? Fortunately, the courts have squarely dealt with that issue, in the context of ... you guessed it ... "Silent Night."

In perhaps the first case to deal specifically with Christmas music, an atheist father challenged the Sioux Falls, South Dakota, school board's use of "Silent Night" (and other songs) in the school's Christmas program. The Eighth Circuit Court of Appeals -- one of the last stops before the Supreme Court -- applied the Lemon test in Florey v. Sioux Falls School District, and held that both the study and performance of religious songs, including Christmas carols, are constitutional if their purpose is the "advancement of the students' knowledge of society's cultural and religious heritage, as well as the provision of an opportunity for students to perform a full range of music, poetry and drama that is likely to be of interest to the students and their audience."

The court also reiterated that:

"It is unquestioned that public school students may be taught about the customs and cultural heritage of the United States and other countries." And that schools may "allow the presentation of material that, although of religious origin, has taken on an independent meaning."

After Florey, it appears that the Establishment Clause does not prevent the singing of Christmas carols with religious origins by public school choirs, though the line seems very thin. For example, if instead of singing "Silent Night," the kids were made to take a quiz testing them on the religious facts undergirding the song:

Q: In the song Silent Night, who is the "Saviour"?

A: Jesus Christ!

Then the school likely crosses into administration of religious training, which is the domain of family and church, not schools. If nothing else though, it certainly appears that "Silent Night," though much more religious than "Jingle Bells," or "White Christmas," is a street-legal public school choir song.

So it appears that schools may include even religious Christmas carols in their curriculum without violating the Constitution. But, can a school go the other direction, and prohibit all Christmas carols from the curriculum?

At least one federal court has held that they can. In Stratechuk v. Board of Educ., South Orange-Maplewood School Dist., the Third Circuit Court of Appeals held that a school district's policy to bar performance of religious holiday music at seasonal shows, while allowing it to be taught in class, had a legitimate secular purpose of avoiding potential Establishment Clause problems, and was not "hostile" to religion.

So schools appear to have broad discretion to include or prohibit Christmas carols, as long as they don't run afoul of the Lemon test.

Navigating the constitutional perils of religion in school is not easy -- indeed, every year the holiday season brings with it an Establishment Clause debate. The courts and schools will continue to struggle with defining permissible non-secular content. At least there are some less contentious holiday traditions that we can always count on: egg nog, gift returns, and bad decisions at office parties. Happy holidays indeed.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Danny Cevallos.

ADVERTISEMENT
Part of complete coverage on
updated 7:22 PM EDT, Fri September 19, 2014
Is ballet dying? CNN spoke with Isabella Boylston, a principal dancer at the American Ballet Theatre, about the future of the art form.
updated 5:47 PM EDT, Fri September 19, 2014
Sally Kohn says it's time we take climate change as seriously as we do warfare in the Middle East
updated 9:02 AM EDT, Fri September 19, 2014
Dean Obeidallah says an Oklahoma state representative's hateful remarks were rightfully condemned by religious leaders..
updated 3:22 PM EDT, Fri September 19, 2014
No matter how much planning has gone into U.S. military plans to counter the Islamic State in Iraq and Syria, the Arab public isn't convinced that anything will change, says Geneive Abdo
updated 11:44 AM EDT, Fri September 19, 2014
President Obama's strategy for destroying ISIS seems to depend on a volley of air strikes. That won't be enough, says Haider Mullick.
updated 9:03 AM EDT, Fri September 19, 2014
Paul Begala says Hillary Clinton has plenty of good reasons not to jump into the 2016 race now
updated 11:01 AM EDT, Fri September 19, 2014
Scotland decided to trust its 16-year-olds to vote in the biggest question in its history. Americans, in contrast, don't even trust theirs to help pick the county sheriff. Who's right?
updated 9:57 PM EDT, Thu September 18, 2014
Ruben Navarrette says spanking is an acceptable form of disciplining a child, as long as you follow the rules.
updated 11:47 AM EDT, Fri September 19, 2014
Frida Ghitis says the foiled Australian plot shows ISIS is working diligently to taunt the U.S. and its allies.
updated 3:58 PM EDT, Fri September 19, 2014
Young U.S. voters by and large just do not see the midterm elections offering legitimate choices because, in their eyes, Congress has proven to be largely ineffectual, and worse uncaring, argues John Della Volpe
updated 9:58 PM EDT, Thu September 18, 2014
Steven Holmes says spanking, a practice that is ingrained in our culture, accomplishes nothing positive and causes harm.
updated 2:31 PM EDT, Thu September 18, 2014
Sally Kohn says America tried "Cowboy Adventurism" as a foreign policy strategy; it failed. So why try it again?
updated 10:27 AM EDT, Thu September 18, 2014
Van Jones says the video of John Crawford III, who was shot by a police officer in Walmart, should be released.
updated 10:48 AM EDT, Thu September 18, 2014
NASA will need to embrace new entrants and promote a lot more competition in future, argues Newt Gingrich.
updated 7:15 PM EDT, Tue September 16, 2014
If U.S. wants to see real change in Iraq and Syria, it will have to empower moderate forces, says Fouad Siniora.
updated 8:34 PM EDT, Wed September 17, 2014
Mark O'Mara says there are basic rules to follow when interacting with law enforcement: respect their authority.
updated 9:05 AM EDT, Tue September 16, 2014
LZ Granderson says Congress has rebuked the NFL on domestic violence issue, but why not a federal judge?
updated 7:49 AM EDT, Tue September 16, 2014
Mel Robbins says the only person you can legally hit in the United States is a child. That's wrong.
updated 1:23 PM EDT, Mon September 15, 2014
Eric Liu says seeing many friends fight so hard for same-sex marriage rights made him appreciate marriage.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT