"Courts have long recognized the historical, social and cultural significance of religion in our lives and in the world, generally. Courts also have recognized that 'a variety of motives and purposes are implicated' by government activity in a pluralistic society. Accordingly, there is a legitimate time, manner and place for the discussion of religion in the public classroom," the 10th Circuit Court wrote in denying Bauchman's appeal.
The issue schools wrestle with today is just how much sacred music is allowed without triggering legal action.
"The courts have recognized that many choral pieces contain religious themes, and that’s especially true regarding holiday pieces. So schools may include some religiously themed pieces in a winter concert, but the program cannot be dominated by music from any one faith tradition," said Heather Weaver, staff attorney for the American Civil Liberties Union's Program on Freedom of Religion and Belief.
That means just tossing "The Dreidel Song" and "Jingle Bells" into an otherwise Christian-based Christmas program doesn't cover a school district legally. In fact, Haynes said such shortcuts — including abandoning religious music altogether just to avoid a lawsuit — usually create more problems than they solve.
He explained that the best approach is for a school district to address the issue from a broader view of year-round curriculum. That makes the annual school Christmas concert, in the view of the courts, a legitimate component of the school's educational program.
"If schools are trying at different times of the year to acknowledge and educate students about a variety of religions, then December isn’t burdened with so much anxiety about how much religion is going to be there," Haynes said.
That was the policy South Orangetown adopted after Sherman convened a committee of about 40 constituents in the community to decide what would be the best symbols to represent Christmas in the schools. A calendar of religious holidays from a variety of faiths became part of the curriculum, so when students passed by a menorah or creche in the hallway they knew what it meant.
"Basically, they wanted to have have the students care and respect each other’s deepest held beliefs," Sherman said.
The committee decided to prohibit any secular holiday symbols, including a Christmas tree, which upset some residents, including a woman who shaved a plush toy rabbit at a meeting. "She said, 'What are you going to do now that you have taken away my Easter bunny?'" Sherman recalled.
But the solution occurred in 1992, apparently simpler times, when the community within South Orangetown district was largely white, Christian and Jewish.
The policy and religious curriculum has since been abandoned. The only symbol now allowed in local schools is a snowflake, a district spokeswoman said.
“It’s the only thing we can do and not get into trouble,” spokeswoman B.J. Greco said. “We are so ethnically diverse that we would end up stepping on somebody’s toes, so it is safer” not to allow religious music or decorations during the holidays.
Haynes characterized that diversity, along with a more vocal and organized secular community, as new wrinkles in the ongoing battle over celebrating Christmas in public schools. Sherman said his district in Alexandria is so culturally diverse that there isn't an expectation of Christmas programs that include sacred music. But if it ever became an issue, he would involve the community in resolving it and stay out of court.
"The courts won’t give you a lot of guidance," he said. "The better guidance is to understand what you can do within the law, and then figure out what best works in your community."
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