Mort Sherman hadn’t even officially started his job as superintendent of South Orangetown Central School District in Blauvelt, N.Y., when a school board member approached him at a June welcoming reception and asked his opinion about having a crèche in the local school during Christmas.
“I first thought I hadn’t done my homework before taking this job,” recalls Sherman, who is now a superintendent in Alexandria, Va. “But I quickly figured out a conversation is going on in this community about what the right symbol was for Christmas in their public schools.”
More and more communities around the country are having similar conversations about what administrators and lawyers call the “December dilemma” — whether public schools can legally include the religious messages of the holidays in musical programs and displays that have become tradition in communities around the country.
The answer, according to the courts and those who have negotiated policies on the issue, is that they can. But as communities become more religiously and culturally diverse, striking a balance that keeps constituents happy and the school out of court can be difficult.
The solutions range from abandoning all holiday programs — sacred and secular — to making the Christmas musical part of a year-round curriculum on comparative religions. But the general guidelines coming from court rulings for musical performances are that the religious component cannot dominate the program and all the music should have an educational purpose for the students involved.
A recent poll by Lifeway Research, which is affiliated with the Southen Baptist Convention, found a large majority of Americans (86 percent) agree that public school choirs and bands should be allowed to perform religious Christmas music.
Americans from the South (65 percent) are most likely to strongly agree that religious Christmas music should be allowed. By comparison, 57 percent of those in the West strongly agree.
But public opinion can be trumped by a threat of legal action. That was the case earlier this month in Hawaii, where the state Department of Education canceled an annual Christmas concert at Moanalua High School.
In a letter to the department, the Hawaii Citizens for the Separation of State and Church said the school's involvment with the New Hope Church, which handled ticket sales to the event that generated proceeds for charity, crossed the line of entanglement between a public school and a church.
"Generally speaking, the ground rules under the First Amendment are clear," said Charles Haynes, director of the Religious Freedom Education Project, who has crafted national guidelines for addressing religion in schools. "But getting schools to understand how to apply them is challenging."
Hawaii education officials did not return calls seeking comment. But Haynes, who has mediated or consulted on many disputes involving school Christmas musical programs over the past two decades, said the courts have provided guidance for schools to preserve the religious aspects of Christmas without violating the First Amendment's establishment clause, which prohibits a school from endorsing a religion.
One of the more notable court rulings came out of Utah, where a Jewish student at West High School sued the Salt Lake City School District, the school and its choir director for having to sing two contemporary Christian songs during commencement.
The federal courts ruled against Rachel Bauchman's claim that her First Amendment rights were violated by having to perform music against her religious beliefs, ruling that a religious piece of music in a school program does not constitute endorsement.
"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."
Copyright 2016, Deseret News Publishing Company