Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
Season’s greetings! I love the holidays as much as the next guy. But this year I have a problem on which I need guidance from Legal Mailbag.
I am the principal of a K-5 school, and we acknowledge the holiday season in various ways, including red and green ribbons and a holiday tree in the lobby. But we live in a diverse community, and I want to go easy on the Christmas references. Many families in my school do not celebrate Christmas, and I want all children to feel welcome in our school.
One of the teachers in my school is not as sensitive, and she came in last week and went all out in decorating her room for the holidays. She hung green and red bunting up throughout her room, she put up posters on the classroom walls of Santa, various elves, and each of the reindeer that pull Santa’s sleigh, and she even put a small ceramic Christmas tree on her desk.
I met with the teacher and told her that she must take down all the holiday decorations in her classroom. I expressed sympathy for the time she spent in displaying (and now taking down) the decorations, but I explained that her over-the-top decorations have to go because they could make some of her students uncomfortable.
Rather than simply comply, the teacher went all constitutional on me, claiming that I was violating her free speech rights as protected by the First Amendment. She explained that she was just expressing her joy about the Christmas holiday, which she claimed is protected speech. She was polite about it, but she was also clear that she would not be removing the decorations from her classroom until after Three Kings Day, which is January 6 this year. Is this teacher correct in her claim that she can deck her room out with Christmas decorations?
Depending on the facts and circumstances, the teacher is likely not correct. The classroom is a place of work, and classroom displays are generally part of one’s job responsibilities. As a faithful reader of Legal Mailbag, you probably recall that public employees do not have First Amendment protection of their speech when it is “pursuant to duty,” i.e., when their speech is part of their job. Garcetti v. Ceballos (U.S. 2006). Unless teachers are given carte blanche in decorating (or not decorating) their classrooms, it is fair to consider their actions in decorating their classrooms as job-related and, as such, subject to reasonable employer controls.
The problem can arise when school officials permit personal displays by teachers in their classrooms. Teachers can then argue that the school has created (or permitted) a forum for their personal speech, and regulating that speech would be subject to the established test for whether speech by a public employee is protected by the First Amendment. That test, established by the United States Supreme Court in Connick v. Myers (U.S. 1983) is, first, whether the speech is on a matter of public concern. If it is not, it is not protected, but if it is, we move to the second test: balancing whether the disruption caused by the speech, if any, is outweighed by the importance of the speech. That will be a fact-based analysis, and Legal Mailbag hopes that you may simply assert that classroom displays are job-related and thus subject to your control.
More generally, the question of decorations in the public schools for the holidays is largely left to the discretion of educators. The United States Supreme Court has never weighed in on the subject, but the lower courts have held that holiday decorations are allowed as long as they do not overtly promote a religion. For example, in Skoros v. City of New York, 437 F. 3d 1 (2d Cir. 2006), cert denied, 127 S. Ct. 1245 (2007) the Second Circuit reviewed a policy of the New York City Department of Education on holiday celebration that permitted display of Christmas trees, a menorah, and a star and crescent as “secular” symbols. Christian parents sued over the prohibition in the policy against classroom displays of a crèche, claiming that the policy violated not only the Establishment Clause, but also their free exercise rights. The court rejected those arguments, holding that permitting display of a menorah and a star and crescent did not convey a message that Christianity is disfavored, but rather served the dual secular purposes of celebrating holidays and promoting greater understanding of cultural and religious differences.
Years before, the Eighth Circuit Court of Appeals decided the leading case on this subject, holding that the curriculum can include discussion of holidays having both religious and secular significance, and that the study of these holidays could include religious symbols and religious music “in a prudent and objective manner and as a traditional part of the cultural and religious heritage of the particular holiday.” Florey v. Sioux Falls School District 49-5, 619 F.2d 1311 (8th Cir. 1980), cert. denied, 449 U.S. 987 (1980). As long as holiday celebrations (decorations, concerts, etc.) meet this standard, the celebration will not raise legal concerns.
In closing, Legal Mailbag notes that there is a difference between what school officials are permitted to do in celebrating the holidays and what is best for the school community. Legal Mailbag applauds your sensitivity to the students and families in your school. While the decorations the teacher put up in your school may be permissible as a matter of constitutional law, you are right to consider whether such decorations could alienate members of your school community and take appropriate action in response.