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 8:35 AM EDT, Mon July 21, 2014
Frida Ghitis: Anger over MH17 is growing against pro-Russia separatists. It's time for the Dutch government to lead, she writes
updated 8:27 AM EDT, Mon July 21, 2014
Julian Zelizer says President Obama called inequality the "defining challenge" of our time but hasn't followed through.
updated 7:57 AM EDT, Mon July 21, 2014
Gene Seymour says the 'Rockford Files' actor worked the persona of the principled coward, charming audiences on big and small screen for generations
updated 10:17 AM EDT, Mon July 21, 2014
Daniel Treisman says that when the Russian leader tied his fate to the Ukraine separatists, he set the stage for his current risky predicament
updated 12:42 PM EDT, Fri July 18, 2014
Andrew Kuchins says urgent diplomacy -- not sanctions -- is needed to de-escalate the conflict in Ukraine that helped lead to the downing of an airliner there.
updated 9:50 PM EDT, Fri July 18, 2014
Jim Hall and Peter Goelz say there should be an immediate and thorough investigation into what happened to MH17.
updated 11:07 AM EDT, Fri July 18, 2014
Pilot Bill Palmer says main defense commercial jets have against missiles is to avoid flying over conflict areas.
updated 1:55 PM EDT, Sun July 20, 2014
Valerie Jarrett says that working women should not be discriminated against because they are pregnant.
updated 3:53 PM EDT, Mon July 21, 2014
David Wheeler says the next time you get a difficult customer representative, think about recording the call.
updated 3:33 PM EDT, Fri July 18, 2014
Newt Gingrich says the more dangerous the world becomes the more Obama hides in a fantasy world.
updated 6:11 AM EDT, Fri July 18, 2014
Michael Desch: It's hard to see why anyone, including Russia and its local allies, would have intentionally targeted the Malaysian Airlines flight
updated 3:14 PM EDT, Thu July 17, 2014
LZ Granderson says we must remember our visceral horror at the news of children killed in an airstrike on a Gaza beach next time our politicians talk of war
updated 8:06 AM EDT, Thu July 17, 2014
Sally Kohn says now the House GOP wants to sue Obama for not implementing a law fast enough, a law they voted down 50 times, all reason has left the room.
updated 8:14 AM EDT, Thu July 17, 2014
A street sign for Wall Street
Sens. Elizabeth Warren, John McCain and others want to scale back the "too big to fail" banks that put us at risk of another financial collapse.
updated 4:16 PM EDT, Thu July 17, 2014
Newt Gingrich writes an open letter to Robert McDonald, the nominee to head the Veterans Administration.
updated 12:01 PM EDT, Fri July 18, 2014
Paul Begala says Dick Cheney has caused an inordinate amount of damage yet continues in a relentless effort to revise the history of his failures.
updated 10:04 AM EDT, Fri July 18, 2014
Kids who takes cell phones to bed are not sleeping, says Mel Robbins. Make them park their phones with the parents at night.
updated 1:29 PM EDT, Thu July 17, 2014
Buzz Aldrin looked at planet Earth as he stood on talcum-like lunar dust 45 years ago. He thinks the next frontier should be Mars.
updated 2:04 PM EDT, Wed July 16, 2014
Mark Zeller never thought my Afghan translator would save his life by killing two Taliban fighters who were about to kill him. The Taliban retaliated by placing him on the top of its kill list.
updated 11:18 AM EDT, Thu July 17, 2014
Jeff Yang says an all-white cast of Asian characters in cartoonish costumes is racially offensive.
updated 9:24 PM EDT, Wed July 16, 2014
Gary Ginsberg says the late John F. Kennedy Jr.'s reaction to an event in 1995 summed up his character
updated 12:41 PM EDT, Wed July 16, 2014
Meg Urry says most falling space debris lands on the planet harmlessly and with no witnesses.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT