Court rules 2015 nativity scene did not violate establishment clause

The US District Court in the Northern District of Indiana issued a partial ruling in the lawsuit against Concord Community Schools. The lawsuit, brought about by an organization on behalf of a student and his father, alleged the Christmas Spectacular's nativity scene violated the establishment cause.

The plaintiffs requested summary judgment for the performance of the nativity scene during three different versions of the Christmas Spectacular - the version performed in 2014 and the years prior to that, the performance for 2015 as it was planned prior to the temporary injunction, and the 2015 Christmas Spectacular as it was actually performed.

In the opinion, the court ruled the 2015 version, which included a two minute nativity scene, with mannequins, and a single song with a single ensemble, did not violate the establishment clause. Therefore, it denied the plaintiffs' motion for summary judgment for that version of the performance.

The ruling stated, "The presentation of the nativity scene was thus not differentiated from the rest of the show, which featured a wide and engaging variety of visuals to augment the respective musical performances, including images and videos projected onto screens, dancing, choreography, costumes, and lighting displays."

As to the performances for 2014 and prior, as well as the 2015 proposed performance, the court could not rule. The court requested additional briefs from both parties regarding whether a decision in these two instances are moot and if they are not moot, whether a permanent injunction is required.

History of the case

The original lawsuit was filed in October 2015 after the school district indicated it would not remove religious aspects from the Concord High School Christmas Spectacular, as requested by the Freedom From Religion Foundation.

The Freedom From Religion Foundation filed suit, along with John Doe and his son Jack Doe, a Concord High School student, requesting a preliminary injunction to prevent the school from performing a live nativity scene in the 2015 performance.

The injunction was granted and the school could not perform a live nativity.

The school modified the nativity scene and included celebrations of Chanukah and Kwanzaa in the 2015 show as performed.

In previous performances, the nativity had been on stage for around 12 minutes. In the 2015 version as performed, the nativity was on stage for two minutes - while one group performed one song. The nativity scene itself was made up of five mannequins.

The plaintiffs filed an amended complaint alleging all versions of the show, the show performed prior to 2014, the show proposed prior to the preliminary injunction for the 2015 version of the show and the show actually performed in 2015.

The plaintiffs sought a permanent injunction for all three versions of the show.

Because a decision has been made on the show actually performed in 2015, the court will only need to rule on the performances in 2014 and before as well as the proposed version for 2015.

Freedom From Religion Foundation statement:

While pleased that a live nativity pageant in an Indiana public school has stopped for now, the Freedom From Religion Foundation expressed disappointment over a federal ruling today saying a school may employ mannequins in a Christian manger scene during a Christmas celebration.

U.S. District Judge Jon E. DeGuilio for the Northern District of Indiana, issued the 37-page ruling in a case brought by FFRF and the American Civil Liberties Union with parent and student plaintiffs. The federal suit challenged a live student tableau of students as part of Concord Community Schools' annual "Christmas Spectacular."

The ACLU and FFRF won a preliminary injunction Dec. 2 against the live nativity. The nearly 50-year violation involved students reenacting the supposed birth of the Christian savior, as school officials read passages from the New Testament and devotional Christmas hymns dominated the musical program.

The district responded to the lawsuit by adding one Chanukah song and one Kwanzaa song to its program. After the preliminary injunction, it replaced the student actors in its nativity scene with mannequins, but kept the usual 20 minutes of devotional Christmas songs performed by students during four public concerts.

The decision today held that the 2015 change from a live nativity enactment to a static nativity display did not violate the Establishment Clause. The ruling left untouched the court's earlier decision enjoining the live nativity.

The Court's ruling was predicated on what it saw as significant changes to the school district's program, brought on by the litigation. The judge called the changes sufficient to avoid any constitutional problem with the 2015 concert.

FFRF Co-President Annie Laurie Gaylor said, to the contrary, that in fact the unannounced inclusion of a manger scene was a disturbing shock and offense to the plaintiffs observing the concerts.

FFRF and the ACLU note that staging a nativity scene, live or otherwise, during a school event has no secular or educational purpose. "The nativity scene and the concert's heavy focus on the religious aspects of Christmas send an exclusionary message to our clients and others that the school prefers Christians over non-theists and people of other faiths," noted ACLU Senior Staff Attorney Heather Weaver.

The case is still ongoing. Judge DeGuilio has asked the parties to submit supplemental briefing on how to remedy the violations to plaintiffs' rights occurring in 2014 and earlier. Those issues should be fully briefed by the end of October.

FFRF thanks its local plaintiffs, who are under a protective order, for their willingness to challenge this longstanding violation despite community uproar and threats delivered against anyone perceived to be involved in the case.

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