Q: Our high school choir and band directors are planning a combined performance one evening during the holidays this year. The directors would like to use both secular and religious songs during the performance, including some Christian and one Jewish song. Can we allow them to use the religious songs?
A: Most likely yes, but the choir and band students must be able to opt-out from participating in the performance if it conflicts with their religious or moral beliefs.
Courts generally agree that religious elements may be introduced and included in school curriculums and events “so long as they do not constitute speech prohibited by the First Amendment.” Essentially, “prohibited speech” includes speech that either establishes or endorses religion, generally, or favors one religion over the other. This includes speech found in school-sponsored artistic and musical performances. In the scenario above, religious songs may be included in the combined performance so long as the directors can ensure that (a) the religious songs are presented objectively for instructional purposes rather than for religious purposes, (b) the school does not endorse any particular religion in their selection of music, and (c) students are not coerced into participation.
With regard to the first element, the performance of a religious song or even several religious songs within a larger performance does not necessarily constitute a religious purpose. Generally, when multiple religions are showcased (whether by song, art or visual aids) in addition to secular traditions, the performance reflects a broad, historical perspective rather than religious purpose. In the present case scenario, the selection of songs from three different categories (secular, Christian, and Jewish), assuming equal time is given to each, would also refute an argument under the second element, that the school endorses any one particular category of religion over another. And lastly, so long as the school does not require participation by the band and choir students, the final element of noncoercion can be easily met. Evidence of consent is generally established with a written option to opt-out of any performance that conflicts with a student’s religious or moral beliefs. Where the performance is required for class or is a large part of the school’s band or choir curriculum for the year, however, an opt-out option may not be enough to combat a coercion claim if non-participation could impact a student’s grade or standing or opportunities to participate in the organization.
Districts considering holiday parties or performances with religious content are advised to contact their school attorney before the performance to ensure there is no violation of the Establishment Clause.