IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

FREEDOM FROM RELIGION

FOUNDATION, et al.,

Plaintiffs,

v.

CONCORD COMMUNITY SCHOOLS,

Defendant.

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Cause No. 3:15-CV-00463-JD-CAN

DEFENDANT’S MEMORANDUM IN OPPOSITION TO

PLAINTIFFS’ REQUEST FOR A PRELIMINARY INJUNCTION

Thomas E. Wheeler, II, #13800-49

Anthony W. Overholt, #16481-49

FROST BROWN TODD LLC

201 North Illinois Street, Suite 1900

P.O. Box 44961

Indianapolis, IN 46244-0961

317-237-3800

Fax: 317-237-3900

twheeler@fbtlaw.com

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TABLE OF CONTENTS

Page

I. Issue Statement. ........................................................................................................... 1

II. Facts............................................................................................................................. 2

A. The Plaintiffs, the FFRF and the Does. ....................................................................... 2

B. The Defendant, Concord Community Schools............................................................ 3

C. The Concord Performing Arts Department. ................................................................ 4

D. The Christmas Spectacular. ......................................................................................... 5

E. Design of the Christmas Spectacular........................................................................... 6

F. The 2015 Christmas Spectacular Program. ................................................................. 8

III. Discussion.................................................................................................................. 10

A. Preliminary Jurisdictional Issue based on Ripeness. ................................................. 10

B. Preliminary Injunction Standard................................................................................ 12

C. “Likelihood he will succeed on the merits.”.............................................................. 13

1. Selection of the appropriate framework to analyze the Establishment Clause

claim and the applicability of the so-called “coercion test.” ..................................... 13

2. Application of the modified Lemon test, “endorsement” of religion......................... 17

i. The “Purpose Prong” of the Lemon Test............................................................. 18

ii. The “Primary Effect Prong” of the Lemon Test – Living Nativity. .................... 22

iii. The “Primary Effect Prong” of the Lemon Test – Religious Songs.................... 25

2. Irreparable Harm........................................................................................................ 27

3. Balance of Harms. ..................................................................................................... 29

C. Judgment on the merits.............................................................................................. 29

IV. Conclusion. ................................................................................................................ 30

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TABLE OF AUTHORITIES

Page

Cases

Agostini v. Felton, 521 U.S. 203 (1997) ....................................................................................... 18

Am. Civil Liberties Union of New Jersey ex rel. Lander v. Schundler, 168 F.3d 92 (3rd

Cir. 1999)............................................................................................................................ 23, 24

Am. Humanist Ass’n v. S. Carolina Dep’t of Educ., 2015 WL 1268036 (D.S.C. 2015) .............. 16

Am. Jewish Cong. v. City of Chicago, 827 F.2d 120 (7th Cir. 1987) (Easterbrook, J.,

dissenting)................................................................................................................................. 29

Bauchman for Bauchman v. W. High Sch., 132 F.3d 542 (10th Cir. 1997)............................. 18, 26

Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010)...................................................................... 10, 12

Books v. City of Elkhart, Indiana, 235 F.3d 292 (7th Cir. 2000)............................................. 17, 23

Books v. Elkhart County, Indiana, 401 F.3d 857 (7th Cir. 2005)........................................ 2, 17, 27

Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d 1373 (9th Cir. 1994) ................................. 21

Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995)..................................... 24

Clever v. Cherry Hill Township Bd. of Educ., 838 F.Supp. 929 (D.N.J. 1993)............................ 19

County of Allegheny v. ACLU, 492 U.S. 573 (1989) ........................................................ 20, 24, 25

Curley v. Arpaio, 2010 WL 27923 (D.Ariz. 2010)....................................................................... 26

Doe ex rel. Doe v. Elmbrook Sch. Dist., 687 F.3d 840 (7th Cir. 2012) ....................... 13, 14, 15, 16

Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494 (5th Cir. 2007)............................................... 28

Doe v. Wilson Cnty. Sch. Sys., 564 F. Supp. 2d 766 (M.D.Tenn. 2008)................................. 20, 21

Doe. v. Duncanville Indep. Sch. Dist., 70 F.3d 402 (5th Cir. 1995).............................................. 26

Edwards v. Aguillard, 482 U.S. 578 (1987) ........................................................................... 18, 22

Elewski v. City of Syracuse, 123 F.3d 51 (2nd Cir. 1997) ............................................................. 24

Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) ........................................................... 12, 27

Figueroa v. Precision Surgical, Inc., 423 Fed.Appx. 205 (3rd Cir. 2011).................................... 27

Fleischfresser v. Directors of Sch. Dist. 200, 15 F.3d 680 (7th Cir. 1994) ................................... 22

Florey v. Sioux Falls Sch. Dist., 619 F.2d 1311 (8th Cir.), cert. denied, 449 U.S. 987

(1980).................................................................................................................................. 19, 26

Freedom From Religion Found. v. Hanover Sch. Dist., 626 F.3d 1 (1st Cir. 2010) ....................... 2

Freedom from Religion Found., Inc. v. New Kensington-Arnold Sch. Dist., 919 F. Supp.

2d 648 (W.D.Pa. 2013) ............................................................................................................. 14

Freedom From Religion Found., Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011) ....................... 2, 28

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Incredible Technologies v. Virtual Technologies, 400 F.3d 1007 (7th Cir. 2005) ........................ 13

Judge v. Quinn, 612 F.3d 537 (7th Cir. 2010) ......................................................................... 27, 29

Lee v. Weisman, 505 U.S. 577 (1992)........................................................................................... 15

Lemon v. Kurtzman, 403 U.S. 602 (1971) .............................................................................. 14, 22

Lynch v. Donnelly, 465 U.S. 668 (1984)................................................................................. 17, 20

Mazurek v. Armstrong, 520 U.S. 968 (1997)................................................................................ 12

McCreary Cnty., Ky. V. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005)......................... 23

Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010)........................................ 21

R.J.J. v. Shineman, 658 S.W.2d 910 (Mo.Ct.App. 1983) ....................................................... 19, 27

Rogers v. Hellenbrand, 118 F. App’x 80 (7th Cir. 2004)......................................................... 2, 18

Smith v. Jefferson Cnty. Bd. of Sch. Comm'rs, 788 F.3d 580 (6th Cir. 2015)............................ 9, 14

Spacco v. Bridgewater School Dept., 722 F.Supp. 834 (D.Mass. 1989) ...................................... 24

Staley v. Harris Cnty., Tex., 485 F.3d 305 (5th Cir. 2007)...................................................... 10, 11

Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist., 587 F.3d 597 (3rd Cir. 2009)....... 27

Utah Highway Patrol Ass'n v. Am. Atheists, Inc., -- U.S. --, 132 S. Ct. 12 (2011) ...................... 14

Weinbaum v. City of Las Cruces, N.M., 541 F.3d 1017 (10th Cir. 2008)................................ 23, 30

Wheeler v. Barrera, 417 U.S. 402 (1974)..................................................................................... 11

Constitutional Provisions

U.S. Const. amend. I, cl. 1 ............................................................................................................ 13

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I. Issue Statement.

On October 7, 2015, a “Complaint for Declaratory and Injunctive Relief” was filed by the

Freedom From Religion Foundation and two “Doe” Plaintiffs (collectively “FFRF”) against the

Concord Community Schools (“Concord” or “School”) challenging the School’s 2015 Christmas

Spectacular as violating the First Amendment’s Establishment Clause despite the fact that the

2015 program had not yet been set. As a consequence the FFRF has asked this Court to enjoin

something that does not exist; and, is effectively asking the court to micromanage the

development of the 2015 program. The FFRF’s Complaint also ignores the fact that the

challenged portions of the program based on their own Complaint make up only twenty (20)

minutes of the ninety (90) minute performance, and a microscopic percentage of all of the music

performances held during the school year. Because of the manner in which it was filed, the

preliminary injunction request also ignores the inclusion in the 2015 program of music from all

three major holidays celebrated in December, Chanukah, Kwanza, and Christmas. Finally, the

FFRF also ignores the fact that under School Board Policy 2240 Jack Doe may opt out of any

portion of the performance that he feels “conflict[s] with his/her religious beliefs or value

system” thus eliminating any coercive effect.

As a consequence, there are two fundamental flaws with the FFRF’s Complaint. First,

the claim as originally filed was not “ripe” in that on October 7, 2015 the 2015 Christmas

Spectacular’s program had not been established, and indeed the program is not generally set until

after the conclusion of the marching band season, which for Concord will not be until after the

State Finals on November 7, 2015. Second, because the Complaint as filed did not involve a

“ripe” set of facts, the Establishment Clause concerns raised in the Complaint do not readily

apply to the 2015 Christmas Spectacular. The 2015 Christmas Spectacular contains no Bible

readings, and only a short historical narrative and musical performance for each of the three

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major holidays celebrated in December, Chanukah, Kwanza, and Christmas. Moreover, the vast

majority of the program contains secular songs and performances. To the extent that some songs

and performances touch on religious themes, the primary purpose is not to endorse any religion,

nor do the songs and performances have the effect of endorsing religion1under the modified

Lemon test because “an objective, reasonable observer, ‘aware of the history and context of the

community and forum in which the religious display appears,’ would [not] fairly understand the

[2015 Christmas Spectacular] to be a government endorsement of religion.” Books v. Elkhart

County, Indiana, 401 F.3d 857, 867 (7th Cir. 2005) (parenthetical supplied).

As a consequence the FFRF’s request for declaratory and injunctive relief seeking to

enjoin the School from performing the 2015 Christmas Spectacular as it is currently formulated

is not well taken.

II. Facts.

A. The Plaintiffs, the FFRF and the Does.

According to the Complaint, the FFRF is an association “devoted to ... separation of

church and state.” (D. # 1; Complaint, ¶ 6). This FFRF devotion includes challenging all aspects

of what it believes are excessive government entanglements with religion. The scope of these

challenges and the arguments made therein indicate that the FFRF sees no room for religion of

any kind in government or public schools. See e.g. Freedom From Religion Found. v. Hanover

Sch. Dist., 626 F.3d 1 (1st Cir. 2010) (unsuccessful Establishment Clause challenge to the

recitation of the Pledge of Allegiance based on the inclusion of the words “Under God”) and

Freedom From Religion Found., Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011) (unsuccessful

Establishment Clause challenge to the statute creating the “National Day of Prayer”).

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“The mere fact that some religious material [will be] presented does not establish that the ‘principal or primary

effect’ of the [high school equivalent music] program was to advance religion.” Rogers v. Hellenbrand, 118 F.

App’x 80, 83 (7th Cir. 2004) (parenthetical supplied).

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According to the Complaint, the Does, a father and a son who live in Elkhart, Indiana and

who reside within the boundaries of the Concord Community Schools, are members of the FFRF

and share its goals and values. (D. # 1; Complaint, ¶ 27-29).

B. The Defendant, Concord Community Schools.

The Defendant, Concord Community Schools, is located in North Central Indiana with

boundaries in large portions of Elkhart County, and serves approximately 5,300 students from

four elementary schools, one intermediate school, one junior high school, and one high school.

The School’s administrative offices are located at 59040 Minuteman Way, Elkhart, Indiana

46517. The School’s website can be found at http://www.concord.k12.in.us. (Spradling Aff’d.,

¶ 2).

The School operates under the direction and control of a five (5) member Board of

School Trustees. Indiana law provides that the School Board is the ultimate decision-maker for

the School (I.C. § 20-23-4-26, I.C. § 20-26-5-4, I.C. § 20-26-3-1 through 6) and the School

Board exercises this authority through a series of policies for the School and its employees. The

School’s policies and procedures may be viewed at http://www.neola.com/concord-in.

(Spradling Aff’d., ¶ 3).

One of the policies enacted by the School Board is Board Policy 2240, entitled

“Controversial Issues”. This policy contains an “opt-out” provision that allows parents who

object to a portion of the educational curriculum to opt their students out of that portion of a class

without penalty:

The Board recognizes that a course of study or certain instructional materials may

contain content and/or activities that some parents find objectionable. If after

careful, personal review of the program lessons and/or materials, a parent files a

complaint in accordance with Board Policy 9130 regarding either the content or

activities that conflict with his/her religious beliefs or value system, the school

will honor a written request for his/her child to be excused from a particular class

for specified reasons. The student, however, will not be excused from

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participating in the course and will be provided alternate learning activities during

times of such parent-requested absences.

(Spradling Aff’d., ¶ 3; Exhibit “A”).

C. The Concord Performing Arts Department.

Unlike many schools that focus on extracurricular athletics, Concord has historically had

a very strong performing arts program. As noted in the Complaint, “the Performing Arts

Department ‘involves approximately half of the School’s 1,500 students at the high school.

Students are involved in marching band, 3 concert bands, 2 jazz bands, pep band, string

orchestra, symphony orchestra, 6 choirs, piano, and dance.’” (D. # 1; Complaint, ¶ 12; quoting

http://www.concordmusic.info; Spradling Aff’d., ¶ 4).

In addition to the music programs, the Performing Arts Department includes other

performance based courses, including classes or programs in dance, theater and stagecraft.

(Spradling Aff’d., ¶ 4; Exhibit “B”). As part of its educational program, the Concord High

School Performing Arts Department presents a variety of programs throughout the school year

that allow high school students to experience performing in front of live audiences. These

programs include the following:

 An annual high school musical which, for the 2014-15 school year was the

musical Footloose.

 An annual Carnival Variety Show featuring all components of the music,

choral and dance programs.

 An annual All School Band Festival featuring all components of the band

program.

 An annual Choral Music Pops Concert featuring all components of the

choral program.

 An annual Jazz Café Show that features the jazz band and various other

performers.

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 An annual Christmas Spectacular featuring all components of the music,

choral and dance programs.

(Spradling Aff’d., ¶ 5; Exhibits “C-1” through “C-6”).

D. The Christmas Spectacular.

As noted above, one aspect of the Performing Arts Department’s program is the annual

“Christmas Spectacular.” The Christmas Spectacular is designed as a holiday program that has

three purposes:

 To act as the culmination of the fall semester’s music instruction by

presenting a multi-pronged musical performance incorporating all aspects

of the High School’s music offerings, including band, orchestra, and

choral components as well as to incorporate other aspects of the

Performing Arts Department such as dance, theatre, and stagecraft;

 To provide music students with challenging and instructive live music

performance opportunities in front of a large audience; and,

 To provide educational instruction to both music students, the general

student population, and the general population as a whole regarding the

traditional underpinnings of the holidays (such as Chanukah, Kwanza, and

Christmas) celebrated during the season.

In the present case the FFRF is challenging a Christmas Spectacular that is in its 45th year of

performance, and was developed based on the “Christmas Spectacular” that has been performed

at the Radio City Music Hall for the last eighty-five (85) years. (Spradling Aff’d., ¶ 6). “The

Radio City Music Hall’s performance is “America’s #1 holiday production, the Christmas

Spectacular is attended by more than one million people annually and has played to 74 different

cities outside of New York with its regional touring production. Since 1932, the Christmas

Spectacular has played at the famed Radio City Music Hall and today’s show still features

beloved favorite numbers, including Parade of the Wooden Soldiers and the Living Nativity,

which have been performed since its inception.” http://www.radiocity.com/about/history.html.

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Over time the Concord Christmas Spectacular has parted ways with the Radio City

version as the educational needs of a performing arts program have taken precedence over a pure

entertainment product and as the School has attempted to freshen up the program and bring it to

a more modern and diverse audience and student population. Id., ¶ 7.

In recent years this holiday event has merged several educational and performing

ensembles within Concord’s Performing Arts Department. Ensembles that typically perform

include two string orchestras, a symphony orchestra, a concert band, two jazz bands, five choirs,

and small chamber groups. It also includes various dance teams, students from the drama

program, and stage technicians. The Performing Arts Department presents five sold-out holiday

concerts which involve over 600 students as either performers or technical support. (Spradling

Aff’d., ¶ 8).

E. Design of the Christmas Spectacular.

Logistical planning for the Christmas Spectacular usually begins in August. Rehearsals

historically begin in October with more intensive preparation developing in late October largely

depending on when the Marching Band season concludes. This year the Marching Minutemen

have qualified for the ISSMA State Marching Band Finals, to be held at Lucas Oil Stadium in

Indianapolis, Indiana on November 7, 2015. (Spradling Aff’d., ¶ 9). Because of the success of

the Marching Band, selection of the music and program design have been pushed back into early

November. Id., ¶ 10.

Preparation for the event includes selecting music that will challenge and educate the

students in music performance and pedagogy. The music selections help students learn about

holiday music through historical and cultural context. The performance of the music is also

intended to provide an enjoyable auditory experience. (Spradling Aff’d., ¶ 11).

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In addition to the music portion of the program, it is also important for the Christmas

Spectacular to highlight other aspects of the Performing Arts Department’s program, including

dance and theatre. The drama and stagecraft students are involved in transforming the

performing arts center into a holiday wonderland that delights young and old. Artistic vision is a

high priority in developing the program so that the students and the audience can experience a

holiday event that is aesthetically invigorating. (Spradling Aff’d., ¶ 12).

As a part of the program students learn to create costumes, stage props, and stage

lighting. They also build or procure large Christmas trees, giant reindeer, thirty (30) to forty (40)

pre-lit Christmas trees, plastic snow, snow machines and set construction are all designed and

assembled. The front of the stage and the balcony are adorned by these students with garland,

lights, and ornaments. Over five hundred (500) strands of lights are hung throughout the

auditorium. (Spradling Aff’d., ¶ 13).

As part of the program students are also encouraged to audition for special solos and

small groups to further enhance the educational challenge presented by a program of this sort.

(Spradling Aff’d., ¶ 14).

The Christmas Spectacular also serves as an annual outreach activity designed to interest

students at the four Concord Community elementary schools and the Concord Intermediate

School in the performing arts. This outreach allows the high school students to experience

performing in front of a live audience while allowing for constructive dialogue during the

program to better prepare them for the public performances. Id., ¶ 15. The program presented to

the elementary school students only involves the first sixty minutes, the portion of program that

has not been challenged in this case. The latter part of the program, the portion after the

intermission, is not employed in the elementary school presentation due to time constraints. Id.

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F. The 2015 Christmas Spectacular Program.

Keeping the forgoing interests in mind, the 2015 Christmas Spectacular contains a wide

variety of song selections (both vocal and instrumental) designed to challenge choir and

instrumental students and provide opportunities for special solos, small group performances, and

performance pieces. These songs include:

 The Holly and The Ivy;

 Almost Christmas;

 That’s Christmas to Me;

 One More Sleep;

 Underneath the Tree;

 December Prayer;

 Winter Wonderland;

 Text Me Merry Christmas;

 Santa’s Workshop;

 Secret Agent Santa;

 White Winter Hymnal;

 Christmas Eve/Sarajevo 12/24;

 Jingle, Jangle Bells;

 A Mad Russian’s Christmas;

 Parade of the Wooden Soldiers;

 Let it Snow;

 Big Noise from the North Pole;

 It’s Our Christmas Cheer;

 White Christmas;

 Ani Ma’amin, Harambee;

 One Amazing Night;

 Christmas Medley consisting of one verse each from A Medieval

Christmas; Angels We Have Heard On High; O Little Town of

Bethlehem; Jesus, Jesus, Rest Your Head; Away in a Manger; Noel, O

Holy Night; We Three Kings; Peace, Peace; and Hark, the Herald Angels

Sing.

(Spradling Aff’d., ¶ 16; Exhibit “D”).

Several of the pieces incorporate musical numbers with performances by other elements

of the Performing Arts Program. For example, the dance program is incorporated in the “Santa’s

Workshop” piece which is performed by the Concord Dance Team, and the “Parade of Wooden

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Soldiers” incorporates the entire dance team. The stage design, the lighting, the costume

manufacture, and the “Living Nativity” are all designed to incorporate the theatre and stagecraft

programs with students creating the costumes, the sets, and the lighting as well as actually

portraying various characters. (Spradling Aff’d., ¶ 17; Exhibit “D”).

The 2015 Christmas Spectacular is scheduled to run ninety (90) minutes with a fifteen

(15) minute intermission. The first portion of the program, titled “The Magic of the Season”

lasts approximately sixty (60) minutes. The post-intermission portion of the program entitled the

“Spirit of the Season” lasts approximately thirty (30) minutes and includes a brief historical

narration and music from each of the three major holidays celebrated during the season,

Chanukah, Kwanza, and Christmas. (Spradling Aff’d., ¶ 18; Exhibit “D”).

The Christmas portion of the “Spirit of the Season” is scheduled to last approximately

nineteen (19) minutes and contains a medley of traditional Christmas Carols, with some portions

acted out by drama students, including the shepherds from “Angels we Have Heard on High”,

the three kings from “We Three Kings”, and a “Living Nativity” from “Away in a Manger.”

These actors are on stage for approximately the last twelve (12) minutes of the program.

(Spradling Aff’d., ¶ 19; Exhibit “D”). Thus the challenged portion of the program makes up

only 13% of the overall Christmas Spectacular program. Moreover, when the other five ninetyminute music/theatre performances throughout the remainder of the year are included, the

challenged portion of the School’s overall performing arts program totals only 2%, effectively

“de minimis religious references.” Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 788 F.3d 580,

590 (6th Cir. 2015).

Outside of a brief historical perspective of the holiday told in narrative form by a student

before each of the three holiday performances, Chanukah, Kwanza, and Christmas, there is no

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further oral reading, and specifically no reading from any religious texts of any kind. (Spradling

Aff’d., ¶ 20).

III. Discussion.

A. Preliminary Jurisdictional Issue based on Ripeness.

As an initial matter, as noted earlier, there is a jurisdictional problem with the FFRF’s

challenge to the 2015 Christmas Spectacular. They have brought it too early based on last year’s

program, and not based on this year’s program.

The FFRF’s claim as originally filed was not “ripe” in that on October 7, 2015, the 2015

Christmas Spectacular’s program had not been established, indeed the program is not generally

set until after the conclusion of the marching band season, which for Concord will not be until

after the State Finals on November 7, 2015. The problem with bringing a challenge to the 2015

program based on what happened in 2014, is that the 2015 program is substantially different

from the 2014 program.

The difference between a mootness argument and a ripeness argument was concisely set

out by the 7th Circuit in Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010): “To say that a claim is

moot is to say that it is too late for the judiciary to affect anyone’s entitlements. With respect to

Bauer’s claim, however, the suit is too early rather than too late. It is unripe, not moot.” Id., 620

F.3d at 708. In Bauer the 7th Circuit held that the case was not moot since the 2008 election had

passed and circumstances had changed. Instead the Court viewed the matter as a ripeness issue

since the challenge focused on what might happen in the upcoming 2010 elections. Because a

series of events had to take place before the individual judges were subjected to discipline arising

out of the 2010 election, the 7th Circuit held that the case was not ripe for adjudication.

Similarly, in the Establishment Clause arena, the Fifth Circuit in Staley v. Harris Cnty.,

Tex., 485 F.3d 305, 309 (5th Cir. 2007) noted as follows:

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Additionally, any dispute over a probable redisplay of the Mosher monument is

not ripe because there are no facts before us to determine whether such a redisplay

might violate the Establishment Clause. Indeed, no decision has been made

regarding any aspect of the future display of the monument. In the absence of this

evidence, we are unable to conduct the fact-intensive and context-specific

analysis required by McCreary and Van Orden. Thus, any claim that the

Establishment Clause may be violated after the Courthouse and grounds have

been renovated, is not ripe for review. See United States v. Carmichael, 343 F.3d

756, 761 (5th Cir. 2003) (“A claim is not ripe for review if ‘it rests upon

contingent future events that may not occur as anticipated, or indeed may not

occur at all.’” (citing Texas v. United States, 523 U.S. 296, 300 (1998) (internal

quotation marks omitted))).

Staley, 485 F.3d at 309. See also Wheeler v. Barrera, 417 U.S. 402, 426-27 (1974) (noting, in an

Establishment Clause challenge to certain types of school funding, that “[i]t would be wholly

inappropriate for us to attempt to render an opinion on the First Amendment issue when no

specific plan is before us. A federal court does not sit to render a decision on hypothetical facts,

and the Court of Appeals was correct in so concluding.”)

The present case is no different. At the time the Complaint was filed on October 7, 2015,

the program for the 2015 Christmas Spectacular had not yet been set because of the length of the

Marching Band Season. (Spradling Aff’d., ¶¶ 9-10). This is significant. As Mr. Spradling has

noted in his Affidavit, while the original program was designed based on the Radio City Music

Hall program, in recent years he has been making changes to the program: “Over time the

Concord Christmas Spectacular has parted ways with the Radio City version as the educational

needs of a performing arts program have taken precedence over a pure entertainment product.

These changes have accelerated over recent years as I have been attempting to freshen up the

program and bring it to a more modern and diverse audience and student population.” Id., ¶ 7.

Indeed as one can see from the draft 2015 Christmas Spectacular program attached as

Exhibit “D” to the Spradling Affidavit, there have been significant and substantive changes to

the program which likely nullify the concerns expressed in the original Complaint that was filed,

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essentially making this preliminary injunction request an exercise in futility. The FFRF’s claims

were not and are not ripe until the final program has been completed. Had the FFRF waited until

the program had been finalized, rather than filing their claim before the program had even been

drafted, relying on what happened in 2014, much of what has gone on would have been avoided.

This is, of course, why ripeness is a jurisdictional requirement. The presumption that the 2015

program would be identical to the 2014 program is too big a leap. As noted in Bauer “[t]hat’s

too many unlikely steps to justify constitutional adjudication.” Id., 620 F.3d at 708.

In the present case, as in Bauer, Staley, and Barrera this Court lacks jurisdiction over this

matter because the claims are not yet ripe for adjudication by it. “We modify the district court’s

judgment to provide that the challenge to the 2008 version of the Code is dismissed as unripe,

not as moot. As modified, the judgment is AFFIRMED.” Bauer, 620 F.3d at 718.

B. Preliminary Injunction Standard.

Obtaining an injunction, particularly a preliminary injunction, is a difficult task. “[A]

preliminary injunction is an extraordinary and drastic remedy, one that should not be granted

unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong,

520 U.S. 968, 972 (1997)(quoting 11 Charles Alan Wright et al., Federal Practice and Procedure,

§ 2948, at 129-130 (2d ed. 1995)).

The parties concur on the burden that the FFRF must carry in order to obtain a

preliminary injunction, “[t]he ‘threshold’ phase requires the moving party to establish that he

will suffer irreparable harm if a preliminary injunction is not issued, (2) that he has no adequate

legal remedy, and (3) there is some likelihood he will succeed on the merits.” Ezell v. City of

Chicago, 651 F.3d 684, 694 (7th Cir. 2011). See D. # 18; Plaintiffs’ Brief, p. 7-8.

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C. “Likelihood he will succeed on the merits.”

In the Complaint the FFRF seeks to enjoin the performance of the Christmas Spectacular

based on a single claim: “Legal Claim – The portion of the Christmas Spectacular with the Live

Nativity Scene and the telling of the story of the birth of Jesus violates the Establishment Clause

of the First Amendment to the United States Constitution.” (D. # 1; Complaint, ¶ 34).

This claim is fundamentally flawed because the FFRF cannot demonstrate “(1) a

likelihood that it will prevail on the merits of the lawsuit” and thus it is not entitled to any form

of declaratory or injunctive relief. Incredible Technologies v. Virtual Technologies, 400 F.3d

1007, 1011 (7th Cir. 2005). Moreover, these flaws also warrant the dismissal of the Complaint as

a matter of law.

1. Selection of the appropriate framework to analyze the Establishment

Clause claim and the applicability of the so-called “coercion test.”

The Establishment Clause states that “Congress shall make no law respecting an

establishment of religion.” U.S. Const. amend. I, cl. 1. The Establishment Clause was made

applicable to schools such as Concord through the application of the Fourteenth Amendment.

Doe ex rel. Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 849 (7th Cir. 2012)(en banc)(citing

Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8 (1947)).

To put it charitably, the Supreme Court has been less than clear as to the appropriate

framework to apply to Establishment Clause cases. As one court noted with some frustration:

Throughout the turbid history of Establishment Clause jurisprudence, the

Supreme Court has announced no less than four judicially crafted “tests” to

analyze whether governmental action violates the Constitution: the three-part

“Lemon test” derived from Lemon v. Kurtzman, 403 U.S. 602 (1971); the

“endorsement test” first advanced by Justice O'Connor in Lynch v. Donnelly, 465

U.S. 668, 687–94 (1984) (O'Connor, J., concurring) and later interpreted as

essentially the second Lemon prong; the “coercion test” pronounced in Lee v.

Weisman, 505 U.S. 577 (1992) and applied in Santa Fe Independent School

District v. Doe, 530 U.S. 290 (2000); and the “legal judgment test” formulated by

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Justice Breyer is his concurrence in Van Orden v. Perry, 545 U.S. 677, 698–706,

(2005) (plurality) (Breyer, J., concurring). Several members of the Supreme Court

have also theorized that other tests should govern, although their proposals have

not garnered majority support.

Freedom From Religion Found., Inc. v. New Kensington-Arnold Sch. Dist., 919 F. Supp. 2d 648,

653 (W.D.Pa. 2013). Indeed, members of the Supreme Court have expressed a similar

frustration. In dissenting from the denial of a writ of certiorari, Justice Thomas referred to an

“Establishment Clause jurisprudence in shambles” and noted that “[o]ur jurisprudence provides

no principled basis by which a lower court could discern whether Lemon / endorsement, or some

other test, should apply in Establishment Clause cases.” Utah Highway Patrol Ass’n v. Am.

Atheists, Inc., -- U.S. --, 132 S. Ct. 12, 14 (2011).

Nevertheless the Seventh Circuit has noted that in this circuit the three-pronged test set

out in Lemon v. Kurtzman, 403 U.S. 602 (1971) “‘remains the prevailing analytical tool for the

analysis of Establishment Clause claims.’” Elmbrook, 687 F.3d at 849. Under the Lemon test a

challenged activity violates the Establishment Clause if it: (1) lacks a legitimate secular purpose;

(2) has the primary effect of advancing or inhibiting religion; or (3) fosters an excessive

governmental entanglement with religion. Lemon, 403 U.S. at 612–13.2

Having said that, the Elmbrook court then went on to analyze the case using at least three

of the aforementioned tests, the modified Lemon test, the endorsement test, and at least in part,

the “coercion test.”

The FFRF devotes a fairly large chunk of its brief to the “coercion test”, arguing that it is

a separate and independent basis upon which to find an Establishment Clause violation. (D. #

2 Over time the “entanglement” prong has been subsumed within the “effect” prong, at least in the school context:

“[T]he Court has ‘recast Lemon’s entanglement inquiry [in the public school context] as simply one criterion

relevant to determining a statute’s effect.’ Mitchell v. Helms, 530 U.S. 793, 808 (2000) (plurality opinion) (citing

Agostini v. Felton, 521 U.S. 203, 232–33 (1997)).” Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 788 F.3d 580, 587

(6th Cir. 2015).

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18; Plaintiffs’ Brief, p. 10-14). There are several flaws with such an argument in the present

case.

First, the 7th Circuit in Elmbrook clearly indicated that coercion was generally just a subelement of the standard Lemon test noting that coercion and endorsement “are two sides of the

same coin.” Id., 687 F.3d at 855. The Court also went on to limit the application of a separate

“coercion test” to situations “when the government directs students to attend a pervasively

Christian, proselytizing environment.” Id. This limitation is consistent with statements made in

the seminal case of Lee v. Weisman, 505 U.S. 577 (1992) where an invocation and benediction

prayer were delivered by a rabbi during a high school graduation ceremony. Id., 505 U.S. at 580.

In analyzing the constitutionality of the prayer, the Lee Court adopted and applied what has now

been characterized as the coercion test: “[A]t a minimum, the Constitution guarantees that

government may not coerce anyone to support or participate in religion or its exercise.” Id., 505

U.S. at 587. The Court in Lee, however, expressly confined its holding to express formal

religious exercises at schools. “These dominant facts mark and control the confines of our

decision: State officials direct the performance of a formal religious exercise at promotional and

graduation ceremonies for secondary schools.” Id., 505 U.S. at 586; see also id. at 599 (“The

sole question presented is whether a religious exercise may be conducted at a graduation

ceremony ....”). Evidence of this limitation is the fact that the Lee court did not identify any

problems with the recitation of the Pledge of Allegiance, with “under God” in it at the same

graduation ceremony immediately before the challenged prayer. Id., 505 U.S. at 583.

In the present case the 2015 Christmas Spectacular is far from “[s]tate officials

direct[ing] the performance of a formal religious exercise” at school. Nor can the Spectacular in

any way be characterized as “a pervasively Christian, proselytizing environment” as the

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Elmbrook Court required before considering the application of the “coercion test.” Elmbrook,

687 F.3d at 855. Without this type of an environment the “coercion test” simply does not apply.

It is also important emphasize the unique facts underpinning the Elmbrook case that

caused it refer to the situation as a “pervasively Christian, proselytizing environment” and to

distinguish them from the facts in this case as a District Court in South Carolina recently did:

In Elmbrook, the venue for the graduation ceremony included not only the

presence of religious imagery upon driving up to the graduation ceremony

location, but also tables in the lobby where the graduates congregated filled with

evangelical literature, much of which addressed children and teens; religious

banners, symbols, and posters; a large circular desk displaying pamphlets directed

to young adults, middle school ministry, and high school ministry; church

members manning the information booths containing the religious literature;

church members passing out literature in the lobby; a large Latin cross hung over

the dias at the front of the chapel and dominating the proceedings; bibles and

hymnal books in the pews; and donation envelopes. Elmbrook, 687 F.3d at 846.

The court found the “environment was pervasively Christian, obviously aimed at

nurturing Christian beliefs and gaining new adherents among those who set foot

inside the church.” Id. at 853. Key in the court’s holding was its finding that the

environment was a “pervasively Christian, proselytizing environment.” Id. at

855. The court in Elmbrook was clear, however, that its opinion should not be

read as critical of cases permitting governmental use, in the proper context, of

certain church-owned facilities. Id. at 843.

Am. Humanist Ass’n v. S. Carolina Dep’t of Educ., 2015 WL 1268036, at *9 (D.S.C. 2015).

Such an environment is obviously far different from that posed in this case.

The second problem with utilizing a “coercion test” framework, if one exists independent

of the Lemon endorsement analysis, in this case is that such a test is applicable only where “the

government directs students to attend a pervasively Christian, proselytizing environment” and

where “the school district creates a captive audience, the coercive potential of endorsement can

operate.” Elmbrook, 687 F.3d at 855 (emphasis supplied). While the FFRF Brief glosses over

this fact with a passing reference in a footnote (D. # 18; FFRF Brief, p. 14, n. 2), the simple fact

is that School Board Policy 2240 specifically allows students such as Jack Doe to “opt-out” out

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of any portion of the educational curriculum if it presents any “conflict with his/her religious

beliefs or value system” without penalty. Under these circumstances Jack Doe would be

permitted to participate in “alternate learning activities during times of such parent-requested

absences.” (Spradling Aff’d., ¶ 3; Exhibit “A”). Thus the core element for the “coercion test”, a

“captive” audience that has been “directed” to attend an express religious exercise is absent, and

without this type of an environment the “coercion test” simply does not apply.

2. Application of the modified Lemon test, “endorsement” of religion.

In cases such as this, which involve public displays, relying on Supreme Court precedent,

the Seventh Circuit in Elmbrook utilized a slightly modified version of the Lemon test which,

applying the “primary effect” prong, focused on whether the challenged practice has “the effect

of communicating a message of government endorsement or disapproval of religion.” Lynch v.

Donnelly, 465 U.S. 668, 692 (1984)(O'Connor, J., concurring). This endorsement approach

requires the Court to “assess[ ] the totality of the circumstances surrounding the display to

determine whether a reasonable person would believe that the display amounts to an

endorsement of religion.” Books v. City of Elkhart, Indiana, 235 F.3d 292, 304 (7th Cir. 2000)

(parenthetical supplied) (“Books I”). Or to put it slightly differently, “whether an objective,

reasonable observer, ‘aware of the history and context of the community and forum in which the

religious display appears,’ would fairly understand the display to be a government endorsement

of religion.” Books v. Elkhart County, Indiana, 401 F.3d 857, 867 (7th Cir. 2005) (“Books II”).

In making the assessment it is important to again note that the Complaint’s allegations

and the FFRF’s materials all erroneously focus on the 2014 Christmas Spectacular and not the

program for the 2015 Christmas Spectacular. Key differences between the two include the fact

that the 2015 Christmas Spectacular does not contain “a faculty-member (acting as narrator)

recit[ing] the story [of the birth of Jesus] as it appears in the Christian Bible (Luke 2:6-14 and

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Matthew 2:1-11).” (D. # 1; Complaint, ¶ 18). Indeed there is no faculty reading or narration at

all. (Spradling Aff’d., ¶ 20). A second key difference is the allegation that “no faith other than

the Christian Faith has ever been represented in performances staged at the Christmas

Spectacular.” (D. # 1; Complaint, ¶ 22). The 2015 “Spirit of the Season” portion of the

Christmas Spectacular recognizes the three major holidays in December, Chanukah, Kwanza,

and Christmas, with a brief historical perspective through narration by a student and music and

symbols from each tradition. (Spradling Aff’d., ¶ 20).

With these significant differences in mind we turn to the specifics of the Lemon test to

determine whether the program endorses a specific religion.

i. The “Purpose Prong” of the Lemon Test.

The initial inquiry under the modified Lemon test is whether the 2015 Christmas

Spectacular, as a whole, has the primary purpose of “advancing or inhibiting religion.” Agostini

v. Felton, 521 U.S. 203, 222–23 (1997). As the Supreme Court has explained, “‘[t]he purpose

prong of the Lemon test asks whether the government’s actual purpose is to endorse or

disapprove of religion.’” Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (quoting Lynch, 465

U.S. at 690). In determining whether the 2015 Christmas Spectacular can be said to have a valid

secular purpose, the Court will need to evaluate the totality of the circumstances surrounding the

creation and production of the performance.

The fact that the 2015 Christmas Spectacular uses the word Christmas is not, in and of

itself, enough to strip it of a secular purpose.3Schools such as Concord have traditionally

3

See e.g. Bauchman for Bauchman v. W. High Sch., 132 F.3d 542, 545 (10th Cir. 1997) (“Courts have long

recognized the historical, social and cultural significance of religion in our lives and in the world, generally. . . . For

example, it is recognized that a significant percentage of serious choral music is based on religious themes or text.

Any choral curriculum designed to expose students to the full array of vocal music culture therefore can be expected

to reflect a significant number of religious songs.”) and Hellenbrand, 118 F. App’x at 83 (“The mere fact that some

religious material [will be] presented does not establish that the ‘principal or primary effect’ of the [high school

equivalent music] program was to advance religion.”).

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acknowledged a wide variety of holidays, some that have religious origins and significance,

others that do not. Teachers and students typically prepare displays, study the origin of holidays

and participate in plays or concerts. While some of these holidays have religious origins and

retain a religious significance, others do not, and they all have also become part of our national

culture and heritage.

The courts have also recognized that schools may choose to recognize these holidays, and

teach their students objectively about them, including their religious significance, without

offending the Establishment Clause when presented as part of an overall secular education

program. Florey v. Sioux Falls Sch. Dist., 619 F.2d 1311 (8th Cir.), cert. denied, 449 U.S. 987

(1980). In Florey, the Eighth Circuit upheld a school’s holiday policy, noting that it was

constitutionally permissible for a school to “advance the students’ knowledge and appreciation of

the role that our religious heritage has played in the social, cultural and historical development of

civilization.” Id., 619 F.2d at 1314. See also Clever v. Cherry Hill Township Bd. of Educ., 838

F.Supp. 929 (D.N.J. 1993) which considered the constitutionality of a school board’s policy

regarding “the use of cultural, ethnic, or religious themes in our educational program.” Id., 838

F.Supp. at 932. The court upheld the policy for a variety of reasons, observing that “the use of

appropriate classroom and central displays is clearly a recognized and legitimate educational

technique.” Id., 838 F.Supp. at 939.

The case law clearly suggests that context can be important to assure fair balance and

sensitivity to all students in these circumstances. A musical program consisting solely of

religious music, for example, is more problematic than a program that combines religious and

secular music. See e.g. R.J.J. v. Shineman, 658 S.W.2d 910, 913 (Mo.Ct.App. 1983) (winter

holiday concert constitutional where seasonal numbers such as “Jingle Bells” performed along

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with traditional Christmas carols). See also County of Allegheny v. ACLU, 492 U.S. 573 (1989)

(display of menorah next to Christmas tree acceptable whereas display of crèche alone would be

impermissible under the Establishment Clause); Lynch v. Donnelly, 465 U.S. 668 (1984) (context

of the crèche display is critical).

In the present case the core challenge in the Complaint that is applicable to the 2015

Christmas Spectacular appears to involve the “Living Nativity” scene. How the nativity scene is

displayed is critical to the determination of whether it “supports and promotes the Christian

praise to God that is the crèche’s religious message.” Allegheny County, 492 U.S. at 600. A

nativity scene may be displayed as one item among many secular symbols of Christmas and will

meet constitutional muster. See Lynch, 465 U.S. at 685–686. However, isolating a nativity scene

in such a way as to show government solidarity with the Christian faith violates the

Establishment Clause. See Allegheny County, 492 U.S. at 598–599.

The application of the Lemon test in the context of a school holiday program with a

similar living nativity scene was addressed in Doe v. Wilson Cnty. Sch. Sys., 564 F. Supp. 2d 766

(M.D.Tenn. 2008).

In this case, in the main secular portion of the Christmas program, students

assumed roles with costumes and special clothing, including members of the

chorus, the reader, soloist, ballerinas, toy doll, toy soldier, Santa Clause, jack-inthe-box, teddy bear, reindeer, Rudolph, and a mouse. It was much more of an

extravaganza with more student participation and fanfare than the rather meager,

stark nativity scene placed at the very end. The nativity scene included at the end

of the Christmas program was an example of the religious heritage of the holiday

and was very limited in duration as compared to the balance of the program.

Unlike in the secular presentation, there were no words spoken by the students or

narrated by others in the ending portion of the program. The Court concludes that

the nativity scene was presented in a prudent, unbiased, and objective manner to

present the traditional historical, cultural, and religious meaning of the holiday in

America.

Christmas is a national religious holiday, celebrated on December 25. To

Christians, the holiday commemorates the birth of a man named Jesus, who was

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also called Christ, from which the holiday derives its name. The Biblical account

of Jesus’ birth is that he was born in a crib or manger to mother Mary and father

Joseph. This is represented by the nativity scene. This is a recorded historical

event, but the birth of Jesus also is the center of the religious faith of Christians.

Each scene of the secular portion of the Christmas program included props,

animal and storybook characters, customs or designated dress, songs, narratives,

or spoken parts. Those in the audience clapped and took pictures of the

participating students as they sang and acted out their parts. The brief nativity

scene lasted only two minutes, less than 10% of the program, with no acting,

speaking or narrative. Considering the Christmas program as a whole, it was a

secular performance with a bit of religious symbolism at the very end to reflect

the historic, cultural and religious significance of the Christmas holiday. Taken as

a whole, the inclusion of the nativity scene as a part of the program did not offend

the Constitution.

Doe v. Wilson Cnty. Sch. Sys., 564 F. Supp. 2d 766, 799-801 (M.D.Tenn. 2008).4

Thus the visual depiction of the “Living Nativity” falls into a fairly standard and

frequently repeated legal analysis as noted above, and it depends on the context of the placement

and the surrounding activities as well as the purpose of the display.

In the present case the express secular purpose of the “Living Nativity” and the program

as a whole is to educate students regarding the various holidays celebrated during December,

including Chanukah, Kwanza, and Christmas. Moreover, this is designed to be done within the

context of the performing arts program as a whole utilizing all components of the program

including choral music, band and orchestra instrumental music, dance and drama performances,

and lighting and stagecraft. The Supreme Court has held that “the Court is normally deferential

4

It is important to note that the Wilson County case found no endorsement with a “Living Nativity” in a

kindergarten classroom, finding it did not constitute an unreasonable risk of government endorsement of religion to

a kindergarten student. Id., 564 F. Supp.2d at 784. “Courts thus have considered the more vulnerable nature of

school-age children when analyzing the primary effect of state actions in the elementary school environment.”

Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d 1373, 1378-79 (9th Cir. 1994). With high school students, as

we have in the present case, there is not the same concern that exists “for elementary school children, who are less

informed, more impressionable and more subject to peer pressure than average adults.” Id. Thus, “this Court will

take into account that the present case involves high school students taking an AP course when applying the

‘reasonable observer’ test” in an Establishment Clause context. Newdow v. Rio Linda Union Sch. Dist., 597 F.3d

1007, 1039 (9th Cir. 2010). Surely if a Living Nativity does not pose the risk of endorsing religion to a

kindergartener under this heightened standard, then a similar Living Nativity would not pose any problem in the

high school context.

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to a State’s articulation of a secular purpose, [but] it is required that the statement of such

purpose be sincere and not a sham.” Edwards v. Aguillard, 482 U.S. 578, 586-87

(1987)(parenthetical supplied).

The “Living Nativity” in this case, as in the Doe case is just one small portion of the

overall 2015 program and encompasses just about the same 10% figure.

The Establishment Clause is not violated because government action “happens to

coincide or harmonize with the tenets of some or all religions.” Harris v. McRae,

448 U.S. 297, 319 (1980) (citing McGowan v. Maryland, 366 U.S. 420, 422

(1961)). In this case, the primary or principal effect of the use of the reading

series at issue is not to endorse these religions, but simply to educate the children

by improving their reading skills and to develop imagination and creativity. Any

religious references are secondary, if not trivial. Therefore, the use of the series

withstands scrutiny under this prong of the test.

Fleischfresser v. Directors of Sch. Dist. 200, 15 F.3d 680, 689 (7th Cir. 1994).

Because the purpose of the 2015 Christmas Spectacular is secular and designed to

promote various musical, dance and theatre performances as part of the School’s performing arts

curriculum and to educate students and the general public regarding the historical context of the

three main holidays celebrated during December, the 2015 Christmas Spectacular complies with

the purpose prong of the modified Lemon test.

ii. The “Primary Effect Prong” of the Lemon Test – Living Nativity.

The second inquiry under the Lemon test is whether the 2015 Christmas Spectacular “has

the primary effect of advancing or inhibiting religion.” Lemon, 403 U.S. at 613. The Seventh

Circuit has described this prong as follows:

In County of Allegheny, the Court noted that, under this prong, courts have a

special responsibility to ensure that a government-sponsored display does not

have the purpose or the effect of endorsing a religion. See 492 U.S. at 592. As

we noted recently in Freedom from Religion Foundation, “[u]nder this test, ‘the

effect prong asks whether, irrespective of government’s actual purpose, the

practice under review in fact conveys a message of endorsement or disapproval.’”

203 F.3d at 493 (quoting Lynch, 465 U.S. at 690 (O’Connor, J., concurring)).

When employing this analytical approach, we are charged with the responsibility

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of assessing the totality of the circumstances surrounding the display to determine

whether a reasonable person would believe that the display amounts to an

endorsement of religion. See County of Allegheny, 492 U.S. at 597 (stating that

“the government’s use of religious symbolism is unconstitutional if it has the

effect of endorsing religious beliefs, and the effect of the government’s use of

religious symbolism depends on its context”).

Books I, 235 F.3d at 304.

As noted earlier, both “purpose” and “effect” under the test articulated in Lemon are

viewed from the perspective of a reasonable observer who is informed of the text, context, and

circumstances surrounding the challenged governmental act. McCreary Cnty., Ky. V. Am. Civil

Liberties Union of Ky., 545 U.S. 844 at 862 (2005)(“The eyes that look to purpose belong to an

‘objective observer,’ one who takes account of the traditional external signs that show up in the

text, legislative history, and implementation of the statute or comparable official act.”).5

It is also important to note that this analysis is not just some mathematical calculation,

comparing the size and frequency of symbols. Such a rote approach was rejected in cases such

as Am. Civil Liberties Union of New Jersey ex rel. Lander v. Schundler, 168 F.3d 92 (3rd Cir.

1999) which noted that “any suggestion that these factors are dispositive for Establishment

Clause purposes is belied by the Supreme Court’s holding in Allegheny County that the display

of a large menorah and one secular symbol, a Christmas tree, in front of the City–County

Building in Pittsburgh was constitutional.” Schundler, 168 F.3d 92, 104-05. As the Court so

5 The fact that this challenge has occurred in the school context has little impact on the analysis: “With this in mind,

we must conjure a slightly different objective observer for purposes of challenges to a school district’s conduct. The

Supreme Court has in one case considered an Establishment Clause challenge from the perspective of ‘an objective

Santa Fe High School student,’ see Santa Fe, 530 U.S. at 308. In another First Amendment case, this court has

analyzed whether ‘students, parents, and members of the public might reasonably perceive’ that government conduct

‘bear[s] the imprimatur of the school.’ See Roberts v. Madigan, 921 F.2d 1047, 1057 (10th Cir. 1990) (quoting

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988)). In yet another case, the Supreme Court expressly

declined any Establishment Clause standard that would bar ‘a group's religious activity ... on the basis of what the

youngest members of the audience might misperceive.’ Good News Club v. Milford Cent. Sch., 533 U.S. 98, 119

(2001). Notwithstanding these varying articulations, each of these cases seems to be focused on the same standard:

an objective standard based on reasonableness and informed knowledge, with due consideration for the concern that

school children will see the governmental message or symbol.” Weinbaum v. City of Las Cruces, N.M., 541 F.3d

1017, 1032 (10th Cir. 2008).

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elegantly put it, such a mathematical approach leads to the absurd result of analyzing “how many

candy canes offset one Jesus?” Id.

This endorsement inquiry is a “highly fact-specific test” that requires a court to ascertain

whether “a reasonable observer of the display in its particular context [would] perceive a

message of governmental endorsement or sponsorship of religion.” Allegheny, 492 U.S. at 593.

See also Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995). The Second

Circuit in Elewski v. City of Syracuse, 123 F.3d 51 (2nd Cir. 1997) noted that “[t]hus, if a

[religious symbol’s] context—like the context of the crèche in Lynch or that of the menorah in

Allegheny—neutralizes the message of governmental endorsement, then the [religious symbol]

passes muster under the Establishment Clause.” Elewski, 123 F.3d at 54. The context is

important because “it is not the simple exposure to religious symbols that is constitutionally

impermissible; rather, it is the message conveyed, particularly to impressionable youngsters, by

linkage of such symbols to their public school.” Spacco v. Bridgewater School Dept., 722

F.Supp. 834, n. 1 (D.Mass. 1989) (citing Larkin v. Grendel’s Den. Inc., 103 S.Ct. 505 (1982),

and Allegheny, 492 U.S. 573)).

The simple fact is that the “Living Nativity” is a very small portion (12%) of a secular

program celebrating the holidays that is rife with other secular performances, other religious and

holiday songs and symbols and only 2% of the entire annual performing arts music

performances. Within this context using “an objective standard based on reasonableness and

informed knowledge, with due consideration for the concern that school children will see the

governmental message or symbol” the “Living Nativity” does not have the primary effect of

endorsing religion any more than the menorah did in Allegheny County.

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One of the pillars of the FFRF’s attack on the “Living Nativity” is their reliance on the

contention that it is performed with a scriptural reading. Relying on cases finding that school

officials reading the Bible in school violates the Establishment Clause, the FFRF goes on to note

in its challenge to the “Living Nativity” that “[t]here is no useful distinction between a scriptural

reading and a religious performance containing a scriptural reading.” (D. # 18; FFRF Brief, p.

14; emphasis in original). The problem, of course, is that the 2015 Christmas Spectacular

contains no Bible reading at all. Indeed the only narrative in that portion of the program is a

brief historical context done by a student for each of the three holidays for which songs are

performed, Chanukah, Kwanza and Christmas. (Spradling Aff’d., ¶ 20).

Within this context “a reasonable observer of the display in its particular context [would

not] perceive a message of governmental endorsement or sponsorship of religion.” Allegheny,

492 U.S. at 593 (parenthetical supplied).

iii. The “Primary Effect Prong” of the Lemon Test – Religious Songs.

While the FFRF also mentions the fact that “various religious hymns—either singing or

instrumentally—such as ‘Christ in the Manger’, ‘Silent Night’, and ‘Hark! The Herald Angels

Sing’” are in the program, it is unclear whether they are actually challenging that music in

particular, or just using it as a “contextual” element supporting the overall effect of the “Living

Nativity.” (D. # 18; FFRF Brief, p. 16-17). As noted in the Spradling Affidavit, in conjunction

with a five minute Chanukah narrative and musical performance, and a five minute Kwanza

narrative and musical performance, the Christmas portion of the “Spirit of the Season” contains a

medley of traditional Christmas Carols. (Spradling Aff’d., ¶¶ 18-20).

If such a challenge to the music is indeed being made, it will not succeed as the courts

have almost unanimously rejected challenges to the singing of religious choral music utilizing

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the purpose/effect prongs of the Lemon test. As the Fifth Circuit noted in Doe. v. Duncanville

Indep. Sch. Dist., 70 F.3d 402 (5th Cir. 1995):

Neither does utilizing The Lord Bless You and Keep You as a theme song

advance or endorse religion. The Does do not argue that the choir sings the theme

song as a religious exercise per se so we do not accept the notion that repeated

singing of a particular religious song amounts to an endorsement of religion. At

trial, Mr. McCullar estimated that 60–75 percent of serious choral music is based

on sacred themes or text. Given the dominance of religious music in this field,

DISD can hardly be presumed to be advancing or endorsing religion by allowing

its choirs to sing a religious theme song. As a matter of statistical probability, the

song best suited to be the theme is more likely to be religious than not. Indeed, to

forbid DISD from having a theme song that is religious would force DISD to

disqualify the majority of appropriate choral music simply because it is religious.

Within the world of choral music, such a restriction would require hostility, not

neutrality, toward religion

Id., 70 F.3d at 407-08. The Court went on to note: “A position of neutrality towards religion

must allow choir directors to recognize the fact that most choral music is religious. Limiting the

number of times a religious piece of music can be sung is tantamount to censorship and does not

send students a message of neutrality... . Such animosity towards religion is not required or

condoned by the Constitution.” Id.

Virtually every court that has been asked to review year-end holiday concerts or musical

programs that have included religious music or music associated with religious holidays has

upheld those programs against identical Establishment Clause challenges. See e.g., Florey, 619

F.2d at 1314 (holding that the study and performance of religious songs in the public schools,

including the singing of Christmas carols, is constitutional); Bauchman, 132 F.3d at 543

(selecting explicitly Christian religious music and Christian religious sites for performance by

the high school choir did not violate the Establishment Clause); Curley v. Arpaio, 2010 WL

27923 (D.Ariz. 2010)(holiday music chosen by correctional officer to be played throughout

prison during the Christmas season included both secular and non-secular songs from various

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traditions, and the presence of secular melodies negated inmate’s contention that officer’s actions

constituted a religious endorsement); R.J.J. v. Shineman, 658 S.W.2d 910 (Mo.Ct.App.

1983)(winter holiday concert constitutional where seasonal numbers such as “Jingle Bells”

performed along with Christmas carols). See also Stratechuk v. Bd. of Educ., S. OrangeMaplewood Sch. Dist., 587 F.3d 597, 605 (3rd Cir. 2009) (noting that “cases from the Eighth,

Tenth, and Fifth Circuits that upheld the constitutionality of performing religious music in public

schools”).

Because the “various religious hymns—either singing or instrumentally” are part of a

program that includes a majority of overtly secular songs, there is no endorsement of religion

from these songs.

Based on the foregoing, and applying the Lemon test as modified in this Circuit, “an

objective, reasonable observer, ‘aware of the history and context of the community and forum in

which the religious display appears,’ would [not] fairly understand the [2015 Christmas

Spectacular] to be a government endorsement of religion.” Books II, 401 F.3d at 867

(parenthetical supplied). As a consequence, the FFRF cannot demonstrate a “likelihood [it] will

succeed on the merits.” Ezell, 651 F.3d at 694.

2. Irreparable Harm.

The Seventh Circuit has noted that “[i]t is not enough for the plaintiffs to show a

likelihood of success on the merits. Critically, they must also show why they will suffer

irreparable harm if the preliminary injunction they want does not issue.” Judge v. Quinn, 612

F.3d 537, 557 (7th Cir. 2010).

“In the context of the grant of a preliminary injunction in this Circuit, irreparable injury

has been defined as ‘potential harm which cannot be redressed by a legal or an equitable remedy

following a trial.’” Figueroa v. Precision Surgical, Inc., 423 Fed.Appx. 205, 210 (3rd Cir. 2011).

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The problem for the FFRF is that based on the content of the 2015 Christmas Spectacular

it cannot show irreparable harm or injury. Indeed it may well not be able to demonstrate an

injury in fact thus undermining its standing as a whole. The irreparable injury cited in the

FFRF’s preliminary injunction materials is “the denial of constitutional rights [which] is

irreparable harm in and of itself.” (D. # 18; FFRF Brief, p. 18). In the present case, as discussed

in detail above, the 2015 Christmas Spectacular passes the modified Lemon test, and thus there is

no endorsement of religion and as a consequence, no Establishment Clause violation. If there is

no Establishment Clause violation, there has been no “denial of Constitutional rights” and there

is no irreparable harm. At best they simply do not like the fact that the program includes some

religious themes with no endorsement of a specific religion. That is not enough to confer a legal

injury.

“Our plaintiffs are covered by the rule of Valley Forge and St. Charles that offense at the

behavior of the government, and a desire to have public officials comply with (plaintiffs’ view

of) the Constitution, differs from a legal injury. The ‘psychological consequence presumably

produced by observation of conduct with which one disagrees’ is not an ‘injury’ for the purpose

of standing. Valley Forge, 454 U.S. at 485.” Freedom From Religion Found., Inc. v. Obama,

641 F.3d 803, 807-08 (7th Cir. 2011).6

“We detect no irreparable injury that will be avoided through preliminary relief. Bearing

in mind that our review is under ‘the highly deferential abuse of discretion standard,’ we see no

6

It should be noted that with respect to the FFRF and John Doe there is no coercion element with respect to the

Christmas Spectacular. At best they simply have hurt feeling or feel slighted because they disagree with the

contents of a public performance that they do not have to attend. As Judge Easterbrook noted: “[b]ut let us suppose

that plaintiffs nonetheless feel slighted. Still, hurt feelings differ from legal injury. The “value interests of concerned

bystanders” (United States v. SCRAP, 412 U.S. 669, 687 (1973)) do not support standing to sue.” Freedom From

Religion Found., Inc. v. Obama, 641 F.3d at 807. Moreover, with respect to Mr. Doe, “[a] parent may be permitted

to bring an action as the next friend of his or her children; however, for an action for themselves as well, parents

must ‘assert an injurious deprivation of their own legal rights or interests’. Ward v. Santa Fe Indep. Sch. Dist., 393

F.3d 599, 606 (5th Cir.2004).” Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494, 505 (5th Cir. 2007). See also Elk

Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).

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reason to upset the district court’s decision to deny the preliminary injunction.” Judge, 612 F.3d

at 557.

3. Balance of Harms.

The FFRF’s argument on the balance of harms is bare bones. They simply argue that

“once a plaintiff demonstrates a likelihood of success on the merits” this prong is met. (D. # 18;

FFRF Brief, p. 19). Similarly, as here, where they have not demonstrated a likelihood of

success, they have not met their injunction burden.

However, there is also another very real harm in this case based on the timing and nature

of the FFRF’s claims, and that is the invitation to this Court to essentially run the School’s

performing arts program.

This decision [Lynch], like others requiring multi-factor balances, gives judges of

the inferior federal courts fits. The Court avoided creating a rule about the

treatment of religious symbols and instead announced that judges should examine

each symbol’s context. But which items of the context matter? If different

elements cut in different directions, what is to be done? It is discomfiting to think

that our fundamental charter of government distinguishes between painted and

white figures—a subject the parties have debated—and governs the interaction of

elements of a display, thus requiring scrutiny more commonly associated with

interior decorators than with the judiciary. When everything matters, when

nothing is dispositive, when we must juggle incommensurable factors, a judge can

do little but announce his gestalt.

Am. Jewish Cong. v. City of Chicago, 827 F.2d 120, 128-29 (7th Cir. 1987) (Easterbrook, J.,

dissenting).

C. Judgment on the merits.

In addition to requesting that the Court deny the FFRF’s prayer for declaratory and

injunctive relief, the School also respectfully requests that the Court enter judgment in its favor

on the merits of the Complaint. As a general matter, courts have held that cases such as this are

relatively amenable to summary judgment, assuming the facts are undisputed, since the standard

to be applied is an objective one:

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Finally, we address whether granting summary judgment on certain claims below

was permissible under our Establishment Clause jurisprudence. Our Lemon

endorsement test is an “objective inquiry,” and we accordingly do not ask

“whether particular individuals might be offended” by the government’s conduct.

Bauchman, 132 F.3d at 555. We need not sift through empirical evidence—

polling data, statistics, or the like—because we need “not ask whether there is any

person who could find an endorsement of religion ... or whether some reasonable

person might think [the State] endorses religion.” Capitol Square Review &

Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (O’Connor, J., concurring) (quoting

Ams. United for Separation of Church and State v. Grand Rapids, 980 F.2d 1538,

1544 (6th Cir. 1992) (en banc)) (brackets in original). Instead, we must simply

view the symbol through an objective observer’s eyes. Accordingly, the question

can be decided as a matter of law, and is therefore appropriate for summary

judgment on a sufficient record. See O’Connor, 416 F.3d at 1231 n. 7. We

conclude that the record supported the district court’s grants of summary

judgment, as well as the court’s post-trial judgments.

Weinbaum, 541 F.3d at 1038.

IV. Conclusion.

Wherefore the Defendant, the Concord Community Schools, respectfully requests that the

Court deny the Plaintiffs’ Request for a Preliminary Injunction. Moreover, the School also

requests that the Court enter judgment in its favor, as under the undisputed facts, it is entitled to

judgment as a matter of law, together with all other just and proper relief in the premises.

FROST BROWN TODD LLC

By: /s/Thomas E. Wheeler

Thomas E. Wheeler, II, #13800-49

Anthony W. Overholt, #16481-49

Attorneys for Defendant

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 5th day of November, 2015, a copy of the

foregoing was filed electronically. Notice of this filing will be sent to the following parties by

operation of the Court’s electronic filing system. Parties may access this filing through the

Court’s system:

Daniel I. Mach

Heather L. Weaver

American Civil Liberties Union

915 15th Street, NW, 6th Floor

Washington, DC 20005

Gavin M. Rose

ACLU of Indiana

1031 E. Washington Street

Indianapolis, IN 46202

Ryan D. Jayne

Samuel T. Grover

Freedom From Religion Foundation

10 N. Henry Street

Madison, WI 53701

/s/Thomas E. Wheeler

Thomas E. Wheeler, II

FROST BROWN TODD LLC

201 North Illinois Street, Suite 1900

P.O. Box 44961

Indianapolis, IN 46244-0961

317-237-3800

Fax: 317-237-3900

twheeler@fbtlaw.com

LR00264.0631345 4841-0701-3162v1

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