Judge Bans Students From Performing in Live Nativity Scene

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High school students who have been rehearsing a live nativity scene as part of their annual Christmas Spectacular are now scrambling to rework the show — sans Mary and baby Jesus — after a federal judge issued an order to nix the religious reenactment from the show.

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But for a public school to have planned to perform a nativity scene in the first place is “really out there,” Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation, tells Yahoo Parenting. The national organization joined the ACLU of Indiana in filing a lawsuit against Concord High School in Elkhart, Ind., on behalf of an unnamed, non-Christian family that complained about the religious scene. “It’s the kind of thing you’d expect in a Catholic school or private school or something out of the ’50s, but not today,” Gaylor says. “This had our jaws dropping.”

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The inclusion of the scene was “so egregious,” she explains, and the show so close to happening — it’s scheduled to be performed this Friday — that the organization asked the court for a temporary injunction, which was granted on Wednesday by U.S. District Court Judge Jon DeGuilio. “The living nativity scene impermissibly conveys an endorsement of religion and thus runs afoul of the Establishment Clause,” DeGuilio noted in his decision, referring to the First Amendment clause that forbids government from establishing an official religion and from favoring one religion over another.


A scene from Concord High School’s annual Christmas Spectacular in 2014. (Photo: YouTube/Ed Man)

“Holiday celebrations that proselytize students are inappropriate in public schools,” Heather L. Weaver, ACLU senior staff attorney, said in a statement. “Today’s ruling makes that clear and ensures that all students and families, regardless of faith or belief, will feel welcome at Concord High’s winter concert.”

The Concord Community Schools district responded to the ruling through a press statement, released on Wednesday, from superintendent John Trout. “Concord Community Schools is disappointed in the decision rendered today by the United States District Court for the Northern District of Indiana,” it reads. “The Concord High School music department is working overtime to insure [sic] that this year’s Christmas Spectacular performance complies with the Court’s order. Additionally, Concord Community Schools is presently researching the possible appeal of the Court’s preliminary injunction. A decision on whether to take that step will be made in the next few days.”

Issues similar to this one come up annually around holiday time. In 2013, some parents and students were upset when a New York school decided to omit all religious references from “Silent Night” for a performance by fifth-graders. And this year so far, the word “Christmas” has been banned from school flyers in a New Hampshire town, and a judge ordered a nativity scene — along with a Christmas tree and Santa decorations — be removed from an Arkansas courthouse lawn. And while some decry such events as small battles in a “war on Christmas,” Gaylor calls the pushback “a war against separation of Church and state.”

Concord High School has performed its Christmas Spectacular — inspired by the Radio City holiday show in New York City — every year since 1970. It has included the living nativity scene “for at least the last twenty seven years, and likely the last forty five,” the judge’s order reads, calling out that continuity as part of the problem. “The fact that this segment has remained constant while the other portions have changed or rotated could itself suggest a preference for that segment and its message,” he writes. “In addition, until this year, every show has included a narration by a faculty member that includes readings from the Bible of the story of Jesus’s birth. … The religious and Christian message conveyed by those performances with both the live nativity scene and the Biblical narration is unmistakable.”

In responding to the motion, the school noted that it had made certain changes this year, including the addition of songs about Hannukah and Kwanzaa, and the removal of any readings from the Bible, although it had planned to keep the nativity scene in the show. But that effort, says Gaylor, “just shows their misunderstanding of the issue.” As does the reaction of some parents and students in the community, she adds.

“We’ve been to several performances in the past, and it’s extraordinary,” parent Brenda Bertha told WNDU. “Disappointed to see Christ taken out of Christmas. Truly, that’s the reason why we celebrate it.”

Concord senior Janae Hall told the news station, “I find [the decision] very odd, because you don’t have to go, and you don’t have to be a part of it if you don’t want to be a part of it.”

But that “so-called voluntariness,” says Gaylor, “is not an excuse, and is dishonest. A student should not have to absent him or herself from a major event like this. It’s basically saying, ‘If you don’t like it, don’t go,’ which is very vitriolic.”

When students do step forward to complain about these situations, she adds, there is often speculation and a “let’s get them” mentality within the community, which has led to students being harassed, attacked, or disciplined. That’s why names are kept private. “And this is why religion shouldn’t be in schools,” she says, “because it endangers children.”

(Top photo: A scene from Concord High School’s annual Christmas Spectacular in 2014/YouTube/Ed Man)

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