Religious Music,the Public Schools,and the Establishment Clause

Florey v. Sioux Falls School District (1980)

In 1979, the Sioux Falls School District, in response to accusations that the school district was conducting Christmas assemblies in its schools that were religious in nature, adopted a policy defining the bounds of permissible school activities related to school holidays. The policy allowed the recognition of religious beliefs and customs, as well as their historic significance in the curriculum, saying, “Music, art, literature, and drama having religious themes or basis” are allowed as long as they are presented in a “prudent and objective manner” (p. 918). A group of citizens sued, arguing that the district’s policy violated the Establishment Clause. The Eighth Circuit Court of Appeals upheld the school district’s policy. Although the policy allowed schools to observe holidays that have both a religious and secular basis, the court concluded that the school board had not adopted the policy for the purposes of advancing religion.

Christmas songs with religious content were taught and performed for the purpose of providing students with a complete musical education. . . . the simple studying of Christmas songs with religious content in a classroom setting would not provide students with a complete musical education because an integral part of studying music is performing music. (p. 913)

In reaching a verdict, the court looked to the historical and cultural significance of religion in the development of music. Citing McCollum v. Board of Education (1948), the court noted, “Music without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view (p. 916).” The court found that the reasons for the selection of the music include its “inherent value . . . [and] because Christmas music with religious content has been assimilated into our culture . . . the performance of Christmas music with religious content does not constitute a religious activity per se” (Florey v. Sioux Falls School District, 1980, p. 916).

Even though the policy supported the use of religious music in holiday performances and the curriculum, the Eight Circuit added that it did not advance religion itself. Although the court counseled schools to remain “sensitive to the religious beliefs or disbeliefs of their constituents,” . . . they need not and should not sacrifice the quality of the students’ education. They need only ensure that the primary effect of the school’s policy is secular” as it “would be literally impossible to develop a public school curriculum that did not in some way affect the religious or nonreligious sensibilities of some of the students or their parents” (p. 1317).

Doe v. Aldine Independent School District (1982)

In Doe v. Aldine Independent School District (1982), a federal court examined a school district’s actions in setting a prayer to music and allowing school employees to lead students in singing the prayer at athletic contests, pep rallies, and graduation ceremonies. Specifically, the words of the musical prayer were as follows: “Dear God, please bless our school and all it stands for. Help keep us free from sin, honest and true, courage and faith to make our school the victor. In Jesus’ name we pray, Amen” (p. 884).

The federal court, using the three-part test articulated by the Supreme Court in Lemon v. Kurtzman (1971), declared the school’s practice of singing a musical prayer was a violation of the Establishment Clause. In the court’s opinion, the musical prayer had no secular purpose, had the effect of advancing religion, and excessively entangled the school district with religion.

Doe v. Duncanville Independent School District (1995)

Doe v. Duncanville, decided by the Fifth Circuit Court of Appeals, is one of the most instructive federal cases on the topic of religious music in schools. It remains a guiding principle for most policies on sacred music in Texas. Jane Doe argued that a Texas school district violated the Establishment Clause by allowing the high school choir to sing The Lord Bless You and Keep You as its theme song. Doe did not object to the choir singing religious songs as part of a secular music program but maintained the District crossed a constitutional boundary by selecting and repeatedly singing sacred music as its theme song.

The Fifth Circuit rejected Doe’s argument and ruled for the school district, saying, “Legitimate secular reasons exist for maintaining The Lord Bless You and Keep You as the theme song” (p. 407). There is a special note on the use of The Lord Bless You and Keep You. The school’s choir director, David McCullar, testified that the selection of the song was related to its pedagogical value in teaching sight-reading and a cappella singing and was “a good piece of music . . . by a reputable composer” (Doe v. Duncanville, 1995, p. 407). McCullar also testified that 60% to 75% of “serious choral music is based on sacred themes or text” (p. 407). The court ruled that forbidding the choir to have a religious theme song would “disqualify the majority of appropriate choral music simply because it is religious. Within the world of chorale music, such a restriction would require hostility, not neutrality toward religion” (pp. 407–408).

Bauchman v. West High School (1997)

In this Tenth Circuit case, Rachel Bauchman, a Jewish student at a Salt Lake City high school, filed a federal lawsuit alleging a variety of constitutional violations, centering on a teacher using sacred music in the a cappella choir class. While a student in the class, Bauchman claimed she was required to perform a “preponderance of Christian devotional music” (p. 546). She also claimed the teacher required the choir to “perform Christian devotional songs at religious sites dominated by crucifixes and other religious symbols” (p. 546). The district court dismissed Bauchman’s lawsuit, and the Tenth Circuit Court of Appeals affirmed.

In dismissing Bauchman’s Establishment Clause claims, the Tenth Circuit identified plausible secular reasons for using sacred choral music in the class. Specifically, the court noted, “It is recognized that a significant percentage of serious choral music is based on religious themes or texts” (p. 554). Thus, a choir director might reasonably choose sacred music, as well as secular music, for a choir class.

Mangrum’s (2005) analysis of the case addresses the points of curricular choices of inclusion of religious music and performance of music at a religious site. On the use of sacred music as a part of the school’s curriculum, the court again used the Lemon test. The selection of music passed under all three prongs of the Lemon test: The singing of religious songs had a “primary secular purpose—to teach musical appreciation, to broaden the students’ understanding of musical culture, and to increase the students’ awareness of culture and diversity.” For similar reasons, the court held that the effect also was primarily secular: “to increase appreciation of music and culture, and to teach musical skills.” Finally, the court found the “inevitability” of a choir director choosing some religious music “does not constitute excessive entanglement under the Lemon test” (p. 819).

In addition, the court expressed no concern about the fact that the choir occasionally performed in religious venues saying, “[P]lausible secular reasons . . . exist for performing school choir concerts in churches and other venues” (Bauchman v. West High School, 1997, p. 554). These reasons range from the buildings’ superior acoustics, having appropriate seating arrangements, and projecting the choir in a more professional manner.

S.D. v. St. Johns County School District (2009)

An elementary school was preparing for an end-of-the-year assembly in which students would perform the contemporary song, In God We Still Trust. Lyrics of the song address a desire to prevent separation of church and state. The school permitted students to opt out of performing the song; however, those students choosing that option would be excluded from the entire assembly. Parents sued and asked a federal judge to enjoin the school from permitting the song’s performance at the assembly or rehearsal by students.

In granting the parents’ request for injunctive relief, the court noted the specific lyrics of the song, as well as the apparent lack of legitimacy as a musical work, worthy of study. When examining the facts of the case, the court noted,

The challenged song is not a sacred example of a choral music used to instruct students in music theory and appreciation. It is a modern, American country music song overtly espousing a specific religious viewpoint and attacking of those who do not share in the same belief. Additionally, the song degrades the doctrine of governmental separation from and neutrality towards the promotion of religious ideologies. (S.D. v. St. Johns County School District, 2009, p. 1101)

This particular case parallels closely with the Fifth Circuit’s decision in Doe v. Aldine Independent School District, where the court decided the music in question did further a religious purpose.

Stratechuk v. Board of Education (2009)

In response to complaints about a previous year’s Holiday Concert, the South Orange-Maplewood School district enacted Policy 2270, which stated there are three concepts in deciding whether or not a song is appropriate: “(a) The activity should have a secular purpose, (b) the activity should neither advance nor inhibit religion, and (c) the activity should have relevance to the curriculum” (p. 599). It was decided that certain religious music would be allowed if it pertained to the music curriculum but that curriculum would be limited so it could not “have a religious orientation or focus on religious holidays” (p. 600). Stratechuk filed a complaint in federal court arguing that the district “created, adopted and implemented a strict policy of banning all religious music, including instrumentals, from public schools in the district” and that “students . . . are no longer permitted to learn about, listen to and participate in the presentation of traditional Christmas music during such curricular and co-curricular events” (p. 602). Stratechuk alleged violations of both the Establishment Clause and the First Amendment in its entirety due to the focus on holiday music over sacred music, regardless of instrumental or vocal arrangements. Specific examples of prohibited music included Silent Night or Hark, the Herald Angels Sing; although the Board did approve Vivaldi’s Gloria in excelsis Deo because “[T]he program does not have a religious orientation and it does not refer to a holiday” (p. 601).

The District Court ruled in favor of the school, and the plaintiff appealed to the Third Circuit Court of Appeals, where applying the Lemon test found the policies in question met requirements to have a secular purpose: “The purpose of the policy was to avoid government endorsement of religious holidays and a potential Establishment Clause violation” (p. 604). The Third Circuit Court of Appeals upheld the constitutionality of the district’s policy, finding no unconstitutional motivation by the school.

Nurre v. Whitehead (2009)

Kathryn Nurre, a high school student, sued her school district after school officials prohibited her from performing an instrumental version of “Ave Maria” at her high school’s graduation ceremony. Nurre argued that the superintendent violated her constitutional right to free speech, that the superintendent’s decision exhibited hostility to religion in violation of the Establishment Clause, and that the superintendent treated her differently from other students in violation of the Equal Protection Clause.

The court noted that the district permitted sacred music at traditional school concerts. Nevertheless, the court approved the policy of banning religious music at graduation ceremonies involving captive audiences and limited time, stating it was entirely reasonable to limit musical performances at graduation ceremonies to secular selections.

We do not seek to remove all religious musical work from a school ensemble’s repertoire. Nor do we intend to substantially limit when such music may be played. We agree . . . that religious pieces form the backbone of the musical arts. To ignore such a fact would be to dismiss centuries of musical history. (Nurre v. Whitehead, 2009, p. 1095)

The Ninth Circuit emphasized, however, that its ruling did not require school districts to ban all religious music at graduation exercises.

We . . . wish to make clear that we do not hold that the performance of music, even Ava Maria, would necessarily violate the Establishment clause . . . We hold only that [Superintendent]Whitehead’s actions were reasonable in light of her past experience and her understanding of the law and did not violate Nurre’s constitutional rights. (p. 1098)

This opinion again supports previous decisions allowing the performance of religious music. On any Fourteenth Amendment violations, the court ruled the theory that “one group of graduates was permitted to select a song for graduation while another was not certainly involves neither a fundamental right nor a suspect class” (pp. 1098–1099). The court further ruled that Nurre’s claims became moot after she graduated from high school.