Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

As the principal of an elementary school, I love the holiday season. Every year, I cannot wait to get through Thanksgiving dinner to start the festivities. Of course, I enjoy the excitement of Black Friday and Cyber Monday. But nothing compares to the joy of picking out a fresh Christmas tree to decorate and place in the foyer of my school to welcome students and celebrate the holidays.

Sadly, I work for a Grinch, and I need your help. Earlier this month, my superintendent sent out a grim directive prohibiting Christmas carols, gift exchanges, and even Christmas trees in our schools. Apparently, the superintendent is laboring under the misapprehension that the public schools cannot celebrate Christmas. I don’t know where he is getting his legal advice, but I know for a fact that he is wrong. There is nothing wrong with a little Christmas cheer, and I have my own right to celebrate. What I need from Legal Mailbag for Christmas is a clear response that I can wave around next week so that I can go out and buy that tree.

Thank you,
Glad Tidings of Joy

Dear Glad:

Legal Mailbag wishes you and your family all the best for the holiday season. But you will not be getting a supportive response in your stocking this year.

Let’s start with your “right” to celebrate Christmas in your school. That claim is incorrect. As the leader of the school, you act on behalf of the school district, and you don’t have the right as an individual, under the First Amendment or otherwise, to use your position to celebrate Christmas. The United States Supreme Court ruled in 2006 that public employees do not have free speech protections under First Amendment when they are doing their jobs, and when you are decorating the foyer of your school, you are indeed doing your job.

The United States Supreme Court has never ruled on exactly what is, and is not, permissible in celebrating Christmas in our public schools. However, lower court rulings have given us guidance. Given your public responsibility to be neutral in matters of religion, it is important that you not celebrate Christmas as a religious holiday or use your position to endorse religion more generally. Those rules, however, leave room for acknowledging the holiday in secular ways. School choirs may sing Christmas carols, for example, as long as the selection of songs is not overtly religious and, in that regard, it is helpful to assure a selection of songs across the different religious traditions. Similarly, the courts have ruled that the display of secular symbols – wreaths, stockings, candy canes and even Christmas trees – is permissible, because such symbols are not overtly religious. A good summary of these court rulings was published in 2012 by the Anti-Defamation League, available online here: “Religion in the Public Schools. Teaching about Religious Holidays – ‘The December Dilemma.’”

In considering issues regarding the celebration of religious holidays in the schools, we must differentiate between what we may do and what we should do. As a legal matter, public schools may celebrate holidays, including religious holidays, in a secular manner, i.e., by displaying only secular symbols and by avoiding actions that promote a particular religion, as discussed above. However, determining the activities of a school or a school district involves more than legal judgments. Those decisions are educational in nature; and educational decisions include consideration of whether a particular activity will make all students feel welcome or whether the activity will alienate students and families who do not share the same religious tradition. Your superintendent has every right to make the educational decision that it is better for you and your school not to display overt signs of Christmas, albeit secular in nature, such as a Christmas tree. When you get the big promotion and are yourself a superintendent, you may reach a different conclusion, but for now, follow the directive. And merry Christmas!