The case Stratechuck v. Board of Education, 587 F.3d 597, 610 (C.A.3 (N.J.), 2009), (which the United States Supreme Court declined at the start of this term to hear), involved a parent, Mr. Stratechuck, who challenged the school district’s policy on prohibiting the performance of celebratory religious music at school sponsored events, arguing that the school district’s policy was a violation of the Establishment Clause and his children’s First Amendment rights. Id. at 599.

A district court concluded that the board policy did not violate the First Amendment establishment or expression clauses. Mr. Stratechuck appealed to the Third Circuit Court of Appeals. Applying the well known three pronged “Lemon Test”, the Third Circuit affirmed the lower court’s decision. First, the court concluded that a restriction on the performance of religious holiday music had a secular purpose and did not automatically convey a message of disapproval of religion, especially since the school district did not ban all religious music from its school curriculum, just public events. Id., at 607. It further noted that “neutrality towards religion is quite distinct from hostility towards it.” Id. Second, the Court rejected Mr. Stratechuck’s argument that the fact that numerous students and parents petitioned the school board and strongly urged it to reverse its policy demonstrated that a reasonable observer could only perceive that the policy disfavored religion. Third, the policy did not foster excessive entanglement with religion despite the fact that the policy required teachers to make musical selections with religious concerns in mind. Id.

While the Stratechuck decision does not mandate the removal of religious music from school sponsored holiday concerts, it does permit school districts to ban religious music from such events. In deciding how best to create an inclusive environment in public schools, school districts have many factors to consider including the effect such music may have on children whom identify with less predominant religions. Such decisions warrant careful consultation with your school district’s attorney.