OPINION AND ORDER
JON E. DEGUILIO, United States District Court Judge.
This began as a case about a living nativity scene. For the finale of its annual holiday show, called the Christmas Spectacular, Concord High School would present a living nativity scene during which students in costumes portrayed various nativity figures, while multiple ensembles from a cross-section of the performing arts department played a number of religious songs and a faculty member read excerpts from the Bible telling the story of Jesus' birth. This practice continued for many years. In 2015, however, a student and his father, along with the Freedom From Religion Foundation, filed suit, asserting that the religious content of the Christmas Spectacular violated the Establishment Clause. In response, the School made some changes to that portion of the show, proposing to omit the Bible readings and to
The show that was actually performed in 2015 thus bore little resemblance to the religious presentations of previous years. It did not include any Bible readings or a living nativity scene — the two subjects of the Plaintiffs' motion for a preliminary injunction. And while the show did include a brief display of a nativity scene (composed of mannequins), that scene was on stage for less than two minutes as the visual complement to a single song performed by a single ensemble. 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.
After the 2015 show, the Plaintiffs amended their complaint to assert Establishment Clause challenges against each of those three versions of the show — the show as it was performed in 2014 (and previous years); as it was proposed in 2015, prior to the preliminary injunction; and as it was actually performed in 2015. The parties have now filed cross-motions for summary judgment. For the reasons that follow, the Court finds that the show that was actually performed in 2015 did not violate the Establishment Clause. As to the first two shows, the Court orders supplemental briefing as to whether those claims remain live, and as to what remedy may be appropriate.
I. FACTUAL BACKGROUND
Concord Community Schools is a public school corporation located in Elkhart County, Indiana. It serves approximately 5,300 students from four elementary schools, one intermediate school, one junior high school, and one high school — Concord High School, which has an enrollment of about 1,700 students. Concord High School has a performing arts department that involves approximately half of the students at the school. The department includes a marching band, three different concert bands, two jazz bands, a pep band, a string orchestra, a symphony orchestra, and six different performance and show choirs. The department also offers other artistic outlets, with programs in dance, theatre, and stagecraft.
The performing arts department presents a number of programs throughout the school year that allow the students to experience performing in front of live audiences. Those include an annual musical, a variety show, a band festival, a choral pops concert, a jazz café, and a Christmas show, which is at issue here. The Christmas show originated in 1970 after the marching band attended the Radio City Christmas Spectacular during a trip to New York City. Every year since then, the School has presented the Christmas Spectacular, modeled after the Radio City version, as its holiday show. The Christmas Spectacular typically includes performances from two string orchestras, a symphony orchestra, a concert band, two jazz bands, five choirs, and small chamber groups. It also includes dance teams, students from the drama program, and stage technicians, and involves over 600 students in total. The Christmas Spectacular is performed five times each year, including four public performances over a weekend, and a school-day performance for younger students in the district on a Friday.
Each of the songs following the intermission in the 2014 show were listed on the next page of the program under the heading "The Spirit of Christmas." This portion of the show began with three songs related to the religious Christmas holiday. The rest of the songs, which lasted about twenty minutes, were listed in the program under the subheading "The Story of Christmas," and one of the ensembles performing during this portion was listed as the "Nativity Orchestra." This segment of the show had been performed in nearly the same manner since the Christmas Spectacular was first presented. It began with an announcement by a faculty member, stating: "Ladies and gentlemen: As we now present the Story of Christmas, we ask that you please hold your applause until the conclusion." [DE 36-1]. Thereafter, the faculty narrator, reading from a script, told the story of the birth of Jesus, reciting portions of the story as it appears in the Bible, as the various ensembles played a medley of ten songs, including Angels We Have Heard On High, Away in a Manger, We Three Kings, and Hark, the Herald Angels Sing. Parts of the narration were read over the musical performances, while other portions were read in between. During the third song, O Little Town of Bethlehem, a backdrop depicting a landscape scene appeared in front of the orchestra on stage, and students dressed in costumes as Mary and Joseph slowly walked across the front of the stage, as if walking to Bethlehem.
After a choir sang another song, the curtain raised to reveal a nativity scene on stage. The students dressed as Mary and Joseph stood over a manger inside a set depicting a stable. On each side of Mary and Joseph inside the stable stood three students dressed in white robes, portraying angels. More students dressed as shepherds stood on the sides of the stage outside of the stable. All of the students stood still in their places for the final twelve minutes of the show, while six songs were played. During the third-to-last song, We Three Kings, three more students dressed as the three wise men slowly walked on stage, one at a time, and took their place in front of the nativity scene, as if presenting their gifts to Jesus. Once the performers concluded the final song, a recorded version of Joy to the World began playing, and the nativity scene remained on stage for about another forty-five seconds as the audience applauded, until the curtain dropped.
After the performance of the 2014 show, the Freedom From Religion Foundation sent a letter to the School, objecting to the presentation of the Christmas Spectacular as a violation of the Establishment Clause. The Freedom From Religion Foundation is a not-for-profit organization that advocates for the separation of church and
Accordingly, on October 7, 2015, the Freedom From Religion Foundation filed suit, along with John Doe and his son, Jack Doe. They then moved for a preliminary injunction, asking the Court to prohibit the School from including the live nativity scene and the Bible readings portraying the story of the birth of Jesus as part of the Christmas Spectacular. [DE 13]. After the motion was filed, the School indicated that it intended to make two changes to the show as compared to previous shows. First, it decided to omit the narration that included the Bible readings. Second, it added songs pertaining to Chanukah and Kwanzaa in the second half of the show. The School planned to have the show resume after the intermission with one of the string ensembles playing "Ani Ma'Amin," in reference to Chanukah, after which one of the choirs would sing "Harambee," in reference to Kwanzaa. During each of those performances, images reflecting those holidays would be projected onto screens next to the stage, such as a menorah or a dreidel for Chanukah, and candles or a mat for Kwanzaa. After those songs, the Christmas segment would then be performed the same as in the past, except for the narration. In addition, each of the three holidays would be introduced by a student reading a short script noting the cultural significance of the respective holiday. The Chanukah and Kwanzaa segments were expected to last three or four minutes each, while the Christmas segment, as before, would last about twenty minutes, with the nativity scene on stage for the final twelve minutes. Ultimately, the Court found that the show as proposed by the School was still likely to violate the Establishment Clause as an endorsement of religion, so it granted the Plaintiffs' motion for a preliminary injunction. The School had already agreed to omit the narration from the Bible about Jesus' birth, but the Court granted the Plaintiffs' remaining request and enjoined the School from presenting a nativity scene composed of live performers as part of the 2015 Christmas Spectacular shows.
As in past years, the Christmas Spectacular that the School presented for its performances in December 2015 began with about twenty individual performances by many of the School's bands, orchestras, and choirs, as well as several solos and small-group performances.
After the intermission, the show resumed with a student reading the following introduction: "Welcome to the Spirit of the Season, where we observe the many cultural celebrations during this holiday season." She then continued with an introduction of Chanukah:
The string ensemble then played Ani Ma'Amin, which lasted about four minutes, as images reflecting Chanukah and the Jewish faith were projected onto the screen to the side of the stage. After that performance concluded, the student then read the following introduction of Kwanzaa:
The choir then sang Harambee, as images associated with Kwanzaa were projected onto the screens. This performance also lasted about four minutes.
The remaining songs during the show were each associated with the Christian Christmas holiday. These performances, including the spoken introduction, lasted about twenty-two minutes. After a choir sang a song entitled One Amazing Night, the student read the following introduction for the Christmas holiday:
Various ensembles then performed the final eight pieces of the show. As compared to the proposed version of the show, two of the proposed songs during this sequence were removed, while one, a piano solo, was added. As before, the image of an angel was projected on the side screen as a choir sang Angels We Have Heard on High. However, no student actors walked across stage during the performance of O Little
After the piano solo, the main curtain lifted to reveal a nativity scene on stage. Given the injunction, the scene did not include any student performers. Instead, five mannequins, depicting Mary, Joseph, and the three wise men, were situated inside the stable set. Unlike previous years, no angels were inside the stable and no shepherds were outside of it. The choir then sang O Holy Night, after which the lights dimmed and the nativity scene was not seen again. In total, the nativity scene was on stage for less than two minutes. The show then concluded with two songs jointly performed by the choirs and orchestra, after which a recording of Joy to the World played while the audience filed out of the auditorium.
After the performances of this show, the Plaintiffs filed an amended complaint. In addition to challenging the show that the School presented in 2014, the amended complaint added claims challenging the versions of the show that the School proposed to present in 2015, prior to the issuance of the preliminary injunction, and the show that the School actually presented in 2015. As to each of those three versions of the show, the Plaintiffs seek a declaratory judgment that the show was unlawful and a permanent injunction against presenting those versions of the show in the future. They also seek nominal damages and attorneys' fees. Finally, the amended complaint added two additional plaintiffs, both of whom are individuals with family members who have performed in the Christmas Spectacular. After a brief period for discovery, the parties have both moved for summary judgment, and those motions have been fully briefed.
II. STANDARD OF REVIEW
On summary judgment, the moving party bears the burden of demonstrating that there "is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A "material" fact is one identified by the substantive law as affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" exists with respect to any material fact when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Where a factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). In determining whether a genuine issue of material fact exists, this Court must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in that party's favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir.2008); King v. Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir.1999). However, the non-moving party cannot simply rest on the allegations contained in its pleadings, but must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir.2000).
The Plaintiffs assert that three different versions of the Christmas Spectacular violated the Establishment Clause: (1) the version presented in 2014; (2) the version the School proposed to present in 2015 prior to the issuance of the preliminary injunction; and (3) the version the School
A. Christmas Spectaculars as Performed in 2014 and Proposed in 2015
The Plaintiffs argue that the versions of the Christmas Spectacular that the School performed in 2014 and that it proposed to perform in 2015 prior to the issuance of the preliminary injunction each violated the Establishment Clause. In issuing the preliminary injunction, the Court found that the Plaintiffs had shown a likelihood of success of proving that the proposed 2015 show would violate the Establishment Clause. The Plaintiffs argue for those same reasons that they are now entitled to judgment as a matter of law that the proposed 2015 show would in fact have violated the Establishment Clause. They further argue that the 2014 version, which placed even greater emphasis on religion and Christianity, violated the Establishment Clause as well.
In response, the School does not present any argument in defense of the constitutionality of those versions of the show. The Court does not adjudicate the merits of these claims at this time, however, because there are two other questions that need further consideration, one of which goes to the Court's jurisdiction to decide these issues: first, whether the Plaintiffs' challenges to these shows have become moot, such that the Court lacks the power to adjudicate them; and second, what remedy may be appropriate should the Court reach the merits and resolve these claims in the Plaintiffs' favor.
The School argues that the Plaintiffs' challenges to the 2014 show and the proposed 2015 show are moot. It argues that it has made changes since those versions of the show and does not intend to present those versions in the future, so there is no longer a live controversy as to whether those shows complied with the Establishment Clause. The School did not raise the issue until its surreply,
Article III of the Constitution states that the power of the federal courts extends to "cases" and "controversies." U.S. Const. art. III, § 2. Thus, "[u]nder Article III, `cases that do not involve actual, ongoing controversies are moot and must be dismissed for lack of jurisdiction.'" Wisc. Right to Life, Inc. v. Schober, 366 F.3d 485, 490-91 (7th Cir.2004) (quoting Fed'n of Advert. Indus. Representatives, Inc. v. City of Chi., 326 F.3d 924, 929 (7th Cir.2003)). Mootness has been described as "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 2, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). That description is
A case can become moot if the conduct a plaintiff seeks to stop comes to an end on its own, in which case the result a plaintiff is seeking has already occurred. However, "[i]t is well settled that `a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.'" Laidlaw, 528 U.S. at 189, 120 S.Ct. 693 (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1983)); see also Chi. United Indus., Ltd. v. City of Chi., 445 F.3d 940, 947 (7th Cir.2006) ("It is true that the mere cessation of the conduct sought to be enjoined does not moot a suit to enjoin the conduct, lest dismissal of the suit leave the defendant free to resume the conduct the next day."). Only when "subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur" will a case become moot by voluntary cessation. Laidlaw, 528 U.S. at 189, 120 S.Ct. 693; accord Doe ex rel. Doe v. Elmbrook Sch. Dist. (Elmbrook I), 658 F.3d 710, 719 (7th Cir.2011), adopted in pertinent part en banc, 687 F.3d 840, 842-43 (7th Cir.2012). The Supreme Court has described this burden of proof as "stringent," "heavy," and "formidable." Laidlaw, 528 U.S. at 189-90, 120 S.Ct. 693. When the defendants are public officials, though, courts "place greater stock in their acts of self-correction, so long as they appear genuine." Schober, 366 F.3d at 492.
The Seventh Circuit addressed a mootness-by-voluntary-cessation argument in a context similar to this case in Elmbrook I, 658 F.3d at 718-21.
Here, the School declares in its surreply that it "has made it clear that it will not return to the pre-2015 program," [DE 60 p. 5], but it fails to cite even a single piece of evidence to support that assertion. The evidence that is actually in the record is not so conclusive, either. Following the 2015 show, the School's superintendent stated in response to an interrogatory that "[a]t this time, [the School] does not anticipate making significant changes to the program in future years." [DE 52-7]. That statement is plainly insufficient in a number of respects to establish mootness. First, it does not reflect a commitment not to present the previous versions of the show, it merely indicates that "[a]t this time," the School "does not anticipate" doing so. As the Seventh Circuit held in Elmbrook, the lack of a present intent to resume the challenged conduct is not equivalent to a commitment not to resume that conduct. 658 F.3d at 720. Second, by qualifying this statement as representing the School's intent "[a]t this time," the School does not make clear what, if anything, might affect that intent. Perhaps the School does not intend to change the show at this time, during the pendency of litigation, but may wish to present the previous versions of the show should it prevail in this litigation.
The School also asserts (again, without citing any evidence) that "the evidence is undisputed that [the School] had already made significant changes even before this suit was filed." [DE 60 p. 5]. That argument directly contradicts the School's argument at the preliminary injunction stage, though, which was that this case was not ripe because the School had not yet decided the content of the upcoming show. [DE 26 p. 10-11]. Nor is the School's presentation of a modified show in 2015 enough on its own to moot the Plaintiffs' challenge to the previous versions. In Elmbrook, the school had not held its most recent graduation ceremonies at the church, yet that did not moot the case. 658 F.3d at 719-20. In fact, even when a defendant repeals a challenged ordinance and replaces it with a different ordinance, a challenge to the repealed ordinance will not be moot if it is "sufficiently similar" to the new ordinance. Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662, n.3, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993); Smith v. Exec. Dir. of Ind. War Mem'ls Comm'n, 742 F.3d 282, 287-88 (7th Cir.2014).
Finally, in a footnote, the Plaintiffs acknowledge testimony by the School's music director from a deposition taken before the preliminary injunction issued, in which he stated that the changes incorporated into the proposed 2015 show were "permanent." [DE 33-2 p. 48]. That testimony makes a stronger case for mootness as to the 2014 show (but at the same time would undermine a case for mootness as to the proposed 2015 show). The director also acknowledged, though, that this was not any official or unofficial policy or position of the School, but only a decision he had made as the director. It is also unclear
For those reasons, the Court cannot conclude at this time that the School has met its heavy burden of establishing that the claims for prospective relief as to the 2014 and proposed-2015 shows are moot due to voluntary cessation. However, mootness affects a court's subject matter jurisdiction to decide a claim, so a court has a duty to inquire further when the prospect of mootness is present. Elmbrook I, 658 F.3d at 718-19 (noting that the court raised the issue of mootness sua sponte and ordered supplemental briefing to confirm its jurisdiction). And given the limited briefing and support that has been presented thus far, requiring additional briefing is the appropriate course. Accordingly, the Court directs the parties to submit supplemental briefs as to whether the Plaintiffs' claims for prospective relief as to the 2014 and proposed-2015 shows are moot. The parties should also submit any additional evidence pertinent to that issue.
There is another aspect of mootness that bears further exploration, too. The Plaintiffs state in a footnote that, even if their request for prospective relief (a declaratory judgment and a permanent injunction) as to these shows is moot, their claim as to the 2014 show is still live and justiciable as to their request for nominal damages.
The second question as to the 2014 and proposed-2015 shows that requires
A related issue that needs to be addressed is the scope and construction of any permanent injunction. Rule 65(d) requires every injunction to "state its terms specifically" and "describe in reasonable detail — and not by referring to the complaint or other document — the act or acts restrained or required." Fed. R. Civ. P. 65(d)(1). "[A] court has an independent duty to assure that the injunctions it issues comply with" these requirements. Chi. Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 631-32 (7th Cir.2003) (internal citation omitted). The Plaintiffs' request for "an injunction prohibiting the presentation of any of the three versions of the event at issue in this litigation" fails to comply with those requirements, as it is neither specific nor self-contained. [DE 54 p. 33]. In addition, as the Court noted at the preliminary injunction stage, the fact-intensive nature of these claims makes crafting an appropriate injunction particularly challenging. Books v. City of Elkhart, Ind. (Books I), 235 F.3d 292, 307 (7th Cir.2000) ("In crafting equitable relief to comply with our judgment today, the district court must ensure that, although the condition that offends the Constitution is eliminated, Elkhart retains the authority to make decisions regarding the placement of the monument."). That is also a factor to consider in deciding whether an injunction is justified. Badger Catholic, 620 F.3d at 782 ("As for the choice between declaratory judgment and an injunction: that's a matter left to the district judge's discretion.... The problem with issuing an injunction straight off is that the details required by Fed. R.Civ.P. 65(d)(1)(C) would be considerably more elaborate than the terms of a declaratory judgment. The district judge was not
Accordingly, the Court directs the parties to submit supplemental briefs addressing whether a permanent injunction is warranted if Plaintiffs prevail on these claims on their merits, and, if so, what specific injunction should issue. In particular, the Plaintiffs' filing must include a proposed injunction and explain both why that particular injunction is warranted and how it complies with Rule 65(d).
B. Christmas Spectacular as Performed in 2015
The Plaintiffs also challenge the version of the Christmas Spectacular that was actually presented in 2015. The Court can proceed to the merits of this claim, as there is no question that it presents a live and justiciable controversy. The School has given no indication that this claim may be moot, and in fact has stated that it does not anticipate making significant changes to the program in future years. The Plaintiffs also have standing to challenge this show. The individual plaintiffs have come, or will come, into direct and unwelcome contact with the display to which they object — Jack Doe as a student performer in the show, and the remaining individual plaintiffs as attendees with children or family members in the show. Under the existing law of the Seventh Circuit, that gives these plaintiffs the requisite interest to have standing. Books v. Elkhart Cty., Ind. (Books II), 401 F.3d 857, 861 (7th Cir.2005) (holding that a party has standing to raise an Establishment Clause challenge if they "must come into direct and unwelcome contact with the religious display to participate fully as a citizen and to fulfill legal obligations"); Sherman ex rel. Sherman v. Koch, 623 F.3d 501, 507 (7th Cir.2010) (holding that a student at a public school who was exposed to a practice that allegedly violated the Establishment Clause had standing to challenge that practice); Croft v. Governor of Tex., 562 F.3d 735, 746 (5th Cir.2009) (likewise as to parents). The Freedom From Religion Foundation also has associational standing since one of its members has standing, the interests it seeks to protect are germane to its organizational purpose, and neither the claim asserted nor the relief requested requires the participation of individual members, as it is not seeking compensatory damages. Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Ezell v. City of Chicago, 651 F.3d 684, 696 (7th Cir.2011).
The Court therefore considers whether the 2015 show complied with the Establishment Clause. The First Amendment states, in part, that "Congress shall make no law respecting an establishment of religion...." U.S. Const. amend I, cl. 1. Though this provision specifically refers to Congress, courts have held that the Fourteenth Amendment made this provision equally applicable to state and municipal governments. Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8, 67 S.Ct. 504, 91 S.Ct. 711 (1947); Elmbrook II, 687 F.3d at 849. In Lemon v. Kurtzman, the Supreme Court articulated a three-pronged test to identify violations of the Establishment Clause: Under the Lemon test, a governmental practice violates the Establishment Clause if it (1) lacks a legitimate secular purpose; (2) has the primary effect of advancing or inhibiting religion; or (3) fosters an excessive entanglement with religion. 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). The Seventh Circuit recognizes that this test "`remains the prevailing analytical tool for the analysis of Establishment Clause claims.'" Elmbrook
The Supreme Court has also articulated two other approaches by which an Establishment Clause violation can be detected. Id. First, a governmental practice violates the Establishment Clause if it has "`the effect of communicating a message of government endorsement or disapproval of religion.'" Id. (quoting Lynch v. Donnelly, 465 U.S. 668, 692, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring)); see also Cty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592-93, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). Under that test, a court must "`assess the totality of the circumstances surrounding the display to determine whether a reasonable person would believe that the display amounts to an endorsement of religion.'" Elmbrook II, 687 F.3d at 850 (quoting Books I, 235 F.3d at 304). The Seventh circuit has "viewed the endorsement test as a legitimate part of Lemon's second prong," id., so the Court uses this test to apply Lemon's primary-effect prong. See Sherman, 623 F.3d at 517 (articulating Lemon's primary-effect prong as asking, "irrespective of government's actual purpose, whether the practice under review in fact conveys a message or endorsement or disapproval"). Second, the government violates the Establishment Clause if it "applie[s] coercive pressure on an individual to support or participate in religion." Elmbrook II, 687 F.3d at 850; see also Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000); Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). Though it is not clear whether or where this test belongs in the Lemon test, "it is evident that if the state `coerce[s] anyone to support or participate in religion or its exercise,' an Establishment Clause violation has occurred." Elmbrook II, 687 F.3d at 850 (quoting Lee, 505 U.S. at 587, 112 S.Ct. 2649) (alteration in original).
Here, the parties focus most heavily on the endorsement test, so the Court considers that test first. The Court then considers whether the show was religiously coercive, and whether it had a legitimate secular purpose.
"[T]he prohibition against governmental endorsement of religion `precludes government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.'" Allegheny, 492 U.S. at 593, 109 S.Ct. 3086 (quoting Wallace v. Jaffree, 472 U.S. 38, 70, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O'Connor, J., concurring)) (alteration and emphasis omitted). The endorsement test "`asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.'" Books II, 401 F.3d at 867 (quoting Freedom From Religion Found., Inc. v. City of Marshfield, Wisc., 203 F.3d 487, 493 (7th Cir. 2000)). In applying this test, courts "evaluate the effect of the challenged government action by `assessing the totality of the circumstances surrounding the display to determine whether a reasonable person would believe that the display amounts to an endorsement of religion.'" Id. (quoting Books I, 235 F.3d at 304). More specifically, courts ask "whether an objective, reasonable observer, `aware of the history and context of the community and forum in which the religious display appears,' would fairly understand the display to be a government endorsement of religion." Id. (quoting Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (O'Connor, J., concurring)).
In addition, "the case law has evinced special concern with the receptivity of schoolchildren to endorsed religious messages,"
That does not mean, though, that any content or imagery that carries an inherently religious meaning must be purged from the school setting. Stone v. Graham, 449 U.S. 39, 42, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980); Sch. Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). Rather, context and circumstances remain key; as the Supreme Court noted in Lynch, to "[f]ocus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause." 465 U.S. at 680, 104 S.Ct. 1355. Applying this fact-specific analysis, courts have held that school choirs can perform sacred music, Bauchman ex rel. Bauchman v. W. High Sch., 132 F.3d 542, 554 (10th Cir.1997) ("Any choral curriculum designed to expose students to the full array of vocal music culture ... can be expected to reflect a significant number of religious songs."); that Christmas carols can be sung at school assemblies, Florey v. Sioux Falls Sch. Dist. 49-5, 619 F.2d 1311, 1315 (8th Cir.1980); that students can reenact religious rituals as part of a secular curriculum, Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d 1373, 1380 n. 6 (9th Cir.1994); and even that students can present a living nativity scene as a part of a holiday program, Doe v. Wilson Cty. Sch. Sys., 564 F.Supp.2d 766, 800 (M.D.Tenn. 2008). None of those cases establishes bright-line rules, but each illustrates how in appropriate circumstances, religious content can permissibly intersect with a secular education. Conversely, the Court found on the preliminary injunction in this case that the living nativity scene the School proposed to present in 2015 was improper — not because living nativity scenes are categorically impermissible, but because the context and extent of that particular presentation would convey an endorsement of religion, which justified the injunction the Plaintiffs requested against performing a living nativity scene in that particular show.
Here, in arguing that the 2015 show endorsed religion, the Plaintiffs largely argue that the Court found that the proposed 2015 show endorsed religion, and that the only change to that version was replacing the student actors with mannequins. That is simply not true, though. Not only did the nativity scene in the actual 2015 show not include live actors, it was only on stage for under two minutes, while a single ensemble performed a single song.
The portrayal of the nativity scene in the 2015 show was very different. As just noted, the nativity scene was on stage for less than two minutes. It did not span multiple performances, either, as it was only on stage while a choir sang a short version of O Holy Night,
When presented in that limited manner, the nativity scene did not stand out from any other portion of the show, during which almost every performance was accompanied by some sort of visual complement in order to make the show visually as well as musically pleasing and engaging. For example, during a number of performances, images were projected onto the screens on each side of the stage. Many of the choir performances included dancing or choreography. Some of the performances by the string ensembles were accompanied by lighting shows. For one performance, the bands played a song called Secret Agent Santa, while actors on stage and in a recorded video projected over center stage showed Santa Claus apprehending present-thieves. In another, a percussion ensemble played a song called the 12 Drum Fills of Christmas, while the screen over center stage showed slides corresponding with the twelve days of Christmas as each day would have been mentioned in the song. The dance team also performed in multiple numbers, including one in which about twenty students dressed in costumes as wooden soldiers and other characters presented a choreographed routine while the bands played the Parade of the Wooden Soldiers. Other songs included decorations, costumes, props, and choreography, too.
Set against that context, nothing about the presentation of the nativity scene, which likewise provided the visual complement for a single song, drew additional emphasis to or suggested a preference for the nativity. To the contrary, it was presented on par with each of the other performances. Under those circumstances, even though the nativity scene is undoubtedly religious in nature, a reasonable observer would not perceive the show as expressing a preference for the nativity scene or endorsing its religious message. Compare Books II, 401 F.3d at 868 (holding that where the Ten Commandments
The nativity scene also differed from previous years in that it did not portray a narrative of the story of Jesus' birth, thus further reducing its likelihood of conveying a religious message. In previous years, a narrator read passages from the Bible of the story of Jesus' birth during this portion of the show. As noted above, this segment also began with students walking across stage prior to the appearance of the nativity, as if walking to Bethlehem, after which the nativity scene appeared on stage, and the three wise men would then walk up to and take their place in front of the nativity, as if presenting their gifts to Jesus. The sequence of songs also roughly correlated with the nativity story, further reinforcing that narrative. As presented in that manner, the nativity was not just a pleasing aesthetic complement to the performance of Christmas songs, but conveyed a deeply religious message.
Those elements were each absent from the 2015 show, except that it included a similar sequence of songs. It would be asking far too much of the reasonable observer, though, to presume that they would perceive those songs (only some of which include words) as constituting a narrative of Jesus' birth. Rather, without those other cues, the observer would merely perceive them as a number of mostly-familiar songs that relate to Christmas, some of which include corresponding visuals. Thus, even though this portion of the show still includes religious songs and some religious imagery, it does not embody nearly the same religious content.
In addition, the show's inclusion of Chanukah and Kwanzaa, and its spoken introductions of each of the holidays, further served to place those performances in a secular context.
Courts have found those sorts of explanations meaningful in deciding whether a display containing religious components sends a message of endorsement. For example, in Books II, the Seventh Circuit approved of a display containing the Ten Commandments in part because it contained a written explanation of the significance of each of the documents in the display. 401 F.3d at 868. Similarly, Justice O'Connor emphasized in Allegheny that a display containing a Christmas tree and a menorah also included a sign stating that the city saluted liberty and freedom, so the display as a whole conveyed a message of pluralism and freedom of belief, not a message of endorsement of any of its religious components. 492 U.S. at 635, 109 S.Ct. 3086 (O'Connor, J., concurring). Conversely, the Seventh Circuit in O'Bannon found that a display containing the Ten Commandments endorsed religion in part because it lacked "any marker explaining why these particular texts have been combined." 259 F.3d at 773. Here, the student-read introductions underscored that the performances during this portion of the show were meant to observe holidays celebrated by different cultures and religions, and thus conveyed a message of inclusion and education rather than endorsing the religious or cultural content of any of the performances. See Books II, 401 F.3d at 868 ("In a pluralistic society, reasonable people can usually tell the difference between preaching religion and teaching about the role of religion in our history.").
Granted, the show still included more Christmas songs than Chanukah
The same would be true even when comparing the actual 2015 show to the proposed show. Though the changes from that version were small in number, they were large in effect, and the presentation of the passive nativity scene for such a brief time was simply not comparable to the elaborate, live, extended nativity scene the School had proposed to present. If the reasonable observer was actually oriented to that proposed version of the show, they would understand that the School did not merely swap out students for mannequins, but also substantially changed the role the nativity scene played in the latter portion of the show. If anything, a reasonable observer would likely perceive the brief inclusion of a nativity scene as a nod to the show's tradition, not an effort to retain the religious message conveyed by prior shows. Thus, the history of the show would not cause the reasonable observer to believe that the show that was actually presented in 2015 endorsed religion, either.
At bottom, the endorsement test involves a holistic, qualitative assessment of the totality of the circumstances of a given display. Here, based on the circumstances and presentation of the show as a whole, and the way in which an objective, reasonable observer would likely perceive it, the Court finds that the Christmas Spectacular that was actually performed in 2015 did not convey a message of endorsement of religion. Like the display containing the Ten Commandments in Books II, as to which the Seventh Circuit concluded that a reasonable observer would "think history,
Having found that the Christmas Spectacular did not convey a message of endorsement, the Court must also consider the Plaintiffs' argument that the Christmas Spectacular was unlawful because it was impermissibly coercive. In Lee, the Supreme Court stated that "the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which `establishes a state religion or religious faith, or tends to do so.'" 505 U.S. at 587, 112 S.Ct. 2649 (quoting Lynch, 465 U.S. at 678, 104 S.Ct. 1355) (internal alteration omitted). Though the show here did not involve any exercise of religion, like prayer, the Seventh Circuit has held that this principle extends beyond the coercion of religious activity itself. Elmbrook II, 687 F.3d at 855. In Elmbrook II, the court explained that endorsement of religion and coercion of religion are "two sides of the same coin," as a government endorsement of religion will apply "`indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion.'" Id. (quoting Wallace, 472 U.S. at 60 n. 51, 105 S.Ct. 2479). Here, for the reasons just discussed, the Court does not find that the Christmas Spectacular as performed in 2015 endorsed religion, so the performers and audience members would not have been subjected to any indirect coercive pressure to conform to Christianity under that theory.
The Seventh Circuit also held in Elmbrook II that coercion will be present "when the government directs students to attend a pervasively Christian, proselytizing environment." 687 F.3d at 855. There, the school held its graduation ceremony in a church that was full of religious imagery. The lobby of the church also had posters and banners directing religious messages to students; pamphlets that advertised the church's ministries for students and that called on the students "to live and love like Jesus"; and staff members ready to discuss the church's religious offerings. Id. at 852. The court described this environment as "obviously aimed at nurturing Christian beliefs and gaining new adherents among those who set foot inside the church." Id. at 853. The court found that this environment was coercive since it would "create subtle pressure" to conform to those beliefs, particularly if some attendees began partaking of the church's offerings, in which case the "law of imitation" would operate. Id. at 855.
Those same concerns are not present here. First, unlike the church in Elmbrook, there were no proselytizing materials that might have called students to partake in religious offerings or activities. And though the show included some religious songs and briefly displayed some religious imagery, it was not pervasively Christian. To the contrary, the show was pervasively secular, as the majority of the show was devoted to purely secular themes, and even the religious songs were mostly familiar songs that have become part of the secular culture. Further, because the manner in which the nativity scene was presented in this show did not convey a message of endorsement, the performers who were singing while the nativity scene was on stage would not have reasonably felt as if they were being coerced to celebrate a religious message through their performance.
Nor was there any opportunity for students or audience members to engage in any religious activity or observance such that the law of imitation would have exerted
The Plaintiffs finally argue that the Christmas Spectacular was unlawful because its religious components lacked a legitimate secular purpose. "When the government acts with the ostensible and predominant purpose of advancing religion, it violates th[e] central Establishment Clause value of official religious neutrality, there being no neutrality when the government's ostensible object is to take sides." McCreary, 545 U.S. at 860, 125 S.Ct. 2722. This prong of the Lemon test "asks whether the government's actual purpose is to endorse or disapprove of religion." Books II, 401 F.3d at 863. "[A] secular purpose need not be the exclusive one," though; "it is sufficient if the government has `a secular purpose.'" Sherman, 623 F.3d at 507 (quoting Bridenbaugh v. O'Bannon, 185 F.3d 796, 800 (7th Cir. 1999)) (internal alteration omitted). Courts also generally give deference to a government's stated purposes, but the stated secular purpose "has to be genuine, not a sham, and not merely secondary to a religious objective." McCreary, 545 U.S. at 864, 125 S.Ct. 2722. Accordingly, courts evaluate a display's purpose in light of its particular presentation and circumstances, again through the eyes of an objective observer. Id. at 862, 125 S.Ct. 2722.
Here, the School has articulated a number a secular purposes that guide the production and performance of the Christmas Spectacular. The show as a whole is intended to provide students with experience performing in front of live audiences. The School thus integrates as many aspects of the Performing Arts Department as possible into the show, including its bands, orchestras, choirs, and jazz bands, in addition to its dance teams, drama students, and stage technicians. The show is designed so as "to provide intense challenges to each performer through the planning and programming of this event." [DE 27 ¶ 8]. In addition, "[a]rtistic vision is a
The Court finds that the Christmas Spectacular that was performed, including its religious aspects, was fully consistent with those secular purposes. As to the nativity scene itself, it provided a visual complement to one of the musical performances, and thus served the goal of making the show both musically and visually pleasing and engaging. It also presumably involved a degree of stagecraft and lighting design, thus providing outlets for students in those areas, too. The manner in which the nativity scene was presented did not belie its secular purposes, either. As discussed above, the nativity was presented on par with each of the other performances during the show, which featured a wide array of visual displays, ranging from backdrops and stage decorations to acting, dancing, and choreography, to projections of videos and still images onto screens, all of which served to make the show "aesthetically invigorating."
As to the selection of music, all of the pieces, whether religious or secular, appeared to satisfy the goals of being challenging and educational, while also aesthetically pleasing and suited to be performed at a high level. And there is no outward indication that any of the religious songs were performed to promote their religious content instead of for those secular purposes. The number of Christmas songs performed was largely commensurate with the degree to which those songs are widely familiar and have become part of the secular culture. See Florey, 619 F.2d at 1317 n.5. The music director also explained that a reason why fewer Chanukah and Kwanzaa songs were included in the show was that there are comparatively fewer quality arrangements available at appropriate levels of difficulty for songs celebrating those holidays. That is a plausible and reasonable explanation, and the Plaintiffs do not suggest otherwise. In addition, the performance of songs celebrating the holidays of Chanukah, Kwanzaa, and Christmas, along with the spoken introductions for each of the holidays, served to expose the performers and audience to and educate them about those holidays.
Therefore, the Court finds that the Christmas Spectacular that was actually presented in 2015 had secular purposes, and thus satisfied Lemon's purpose prong, too. Accordingly, having found that the Christmas Spectacular satisfied each of the Establishment Clause tests at issue, the Court concludes that the show did not violate the Establishment Clause.
The Court takes both parties' motions for summary judgment under advisement as to the 2014 and proposed-2015 shows. The School's supplemental brief as to mootness is due by October 5, 2016, with any response from the Plaintiffs due by October 26, 2016. The Plaintiffs' supplemental brief as to the appropriate remedy, if any, for those shows is due by October 5, 2016, with any response from the School due by October 26, 2016. Finally, the Court grants the School's motion for summary judgment as to the 2015 show, finding that it did not violate the Establishment Clause. The Court denies the Plaintiffs' motion for summary judgment to the same extent.