Does music with a sacred text have a place in the public schools?
It is the position of MENC: The National Association for Music Education that
the study and performance of religious music within an educational context is
a vital and appropriate part of a comprehensive music education. The omission
of sacred music from the school curriculum would result in an incomplete
educational experience.
The First Amendment...
The First Amendment does not forbid all mention of religion in the public
schools; it prohibits the advancement or inhibition of religion by the state.
A second clause in the First Amendment prohibits the infringement of
religious beliefs. The public schools are not required to delete from the
curriculum all materials that may offend any religious sensitivity. For
instance, the study of art history would be incomplete without reference to
the Sistine Chapel, and the study of architecture requires an examination of
Renaissance cathedrals. Likewise, a comprehensive study of music includes an
obligation to become familiar with choral music set to religious texts.
The chorales of J. S. Bach, the "Hallelujah Chorus" from George Frideric
Handel's Messiah, spirituals, and Ernest Bloch's Sacred Service all have an
important place in the development of a student's musical understanding and
knowledge.
In order to ensure that any music class or program is conforming to the
constitutional standards of religious neutrality necessary in public schools,
the following questions raised in 1971 by Chief Justice Warren E. Burger in
Lemon v. Kurtzman1 should be asked of each school-sanctioned observance,
program, or institutional activity involving religious content, ceremony, or
celebration:
1. What is the purpose of the activity?Is the purpose secular in nature, that
is, studying music of a particular composer's style or historical period?
2. What is the primary effect of the activity? Is it the celebration of
religion? Does the activity either enhance or inhibit religion? Does it
invite confusion of thought or family objections?
3. Does the activity involve excessive entanglement with a religion or
religious group, or between the schools and religious organizations?
Financial support can, in certain cases, be considered an entanglement.
If the music educator's use of sacred music can withstand the test of these
questions, it is probably not in violation of the First Amendment.
Since music with a sacred text or of a religious origin (particularly choral
music) constitutes such a substantial portion of music literature and has
such an important place in the history of music, it should and does have an
important place in music education.
Legal History
In the first court case that dealt specifically with music, Roger Florey, the
father of a primary student, challenged the rules set up by the Sioux Falls,
South Dakota, school board. The plaintiff, an avowed atheist, touched off a
statewide furor in 1978 when he complained about the use of the hymn "Silent
Night" in the school's Christmas program. He contended that the use of the
song violated the doctrine of separation of church and state. At a hearing on
the plaintiff's motion for an injunction in December 1978, the motion was
denied. The plaintiff's request for declaratory and final injunctive relief
was denied in February 1979. The case Florey v. Sioux Falls School District
49-52 was appealed to the Eighth U.S. Circuit Court of Appeals in St. Louis.
This court, in April 1980, upheld the Sioux Falls school policy, allowing
religious songs for educational purposes. The Appeals Court said the policy
was not promulgated with religious purposes in mind.
In a more recent court case (1995), U.S. District Judge J. Thomas Greene
dismissed a lawsuit (Bauchman v. West High School) filed by 15-year-old
Rachel Bauchman over Christian songs performed by the choir at Salt Lake
City's West High School. Ms. Bauchman claimed that the songs were sung
prayers and therefore constituted a violation of the establishment clause.
Rejecting this argument, the court said that music has a purpose in education
beyond the mere words or notes in conveying a mood, teaching cultures and
history, and broadening understanding of arts and that the selection of the
music had a primarily secular purpose of teaching music appreciation.3
Several other cases, most notably Brandon v. the Board of Education of the
Guilderland Central School District,4 involving free exercise of religion,
and Widmar v. Vincent,5 involving freedom of speech, suggest that in the
court's opinion, college and university students have the maturity to
understand the religiously neutral role that public schools must play in
dealing with the subject of religion, where younger students may not.
Therefore, college teachers may not be required to emphasize this neutrality
so much. According to the Brandon decision, "Our nation's elementary and
secondary schools play a unique role in transmitting basic and fundamental
values to our youth. To an impressionable student, even an appearance of
secular involvement in religious activities might indicate that the state has
placed its imprimatur on a particular creed."
Teachers of young children have a special responsibility in treating this
sensitive subject. Young students (and their parents) sometimes become
confused and upset by what they view as contradictions to their religious
teaching. It is important to communicate that music learning, not religious
indoctrination, is the motivation in choosing repertoire. One way to
reinforce this is to list the music concepts/skills associated with each song
in a printed program.
Religiously Neutral Programs
With this volatile topic, music educators should exercise caution and good
judgment in selecting sacred music for study and programming for public
performances. During the planning phase of each program, the following
questions should assist the teacher in determining if the program is, indeed,
religiously neutral:
1. Is the music selected on the basis of its musical an educational value
rather than its religious context?
2. Does the teaching of music with sacred text focus on musical and artistic
considerations?
3. Are the traditions of different people shared and respected?
4. Is the role of sacred music one of neutrality, neither promoting nor
inhibiting religious views?
5. Are all local and school policies regarding religious holidays and the use
of sacred music observed?
6. Is the use of sacred music and religious symbols or scenery avoided? Is
performance in devotional settings avoided?
7. Is there sensitivity to the various religious beliefs represented by the
students and parents?
Abraham Schwadron summarized the problems facing the music educator in the
use of religious music in the public schools:
Obviously, the key to an adequate solution rests ultimately with the
sensitive and well-informed music educator. Of singular importance is the
development of the attitude that participation in actual performance produces
a better grasp of the aesthetic import of great music than mere listening or
nonparticipation.
If it is possible to study Communism without indoctrination or to examine the
ills of contemporary society without promoting the seeds of revolution, then
it must also be possible to study sacred music (with performance-related
activities) without parochialistic attitudes and sectarian points of view.
This position statement is not to be construed as finite. It cannot hope to
answer all specifics. It does give some guidelines to help the music
educator. Like any issue with legal ramifications, the final answers often
can only be found in a court of law. However, this issue involves more than
just court cases. It calls for increased understanding and sensitivity on the
part of students, teachers, principals, and the community.
It is hoped that with sensitivity to the issues raised, with careful
understanding of legal aspects, and with consideration for personal feelings,
educators will use the full range of music literature in an appropriate
contextual setting. Notes
1. 403 U.S. 602, 612 (1971).
2. 619 F. 2d 1311 (8th Cir. 1980).
3. 900 F. Supp 254 (D. Utah 1995).
4. 635 F. 2d 971 (2nd Cir. 1980), Cert denied. 454 U.S. 1123 (1981).
5. 454 U.S. 263 (1981).
6. Abraham Schwadron, "On Religion, Music, and Education," Journal of
Research in Music Education 18, no. 2 (Summer 1970), 157-66.
Suggested Bibliography
Books
McGrath, John J., ed. Church and State in American Law: Cases and Materials.
Milwaukee: Bruce Publishing Company, 1962. Pfeiffer, Leo. God, Caesar, and
the Constitution: The Court as Referee of Church-State Confrontation. Boston:
Beacon Press, 1975. Rapp, James A. Education Law. New York: Matthew Bender
and Co., 1993. Rotunda, Ronald A., John E. Nowak, and L. Nelson Young.
Treatise on Constitutional Law: Substance and Procedure, Vol. 3. St. Paul,
Minnesota: West Publishing Co., 1991. van Geel, Tyll. The Courts and American
Education Law. Buffalo, New York: Prometheus Books, 1987.
Postion Statements
ACLU Briefing Paper No. 3: "Church and State." American Civil Liberties
Union, New York. ACLU Policy No. 81: "Religion in Public Schools." American
Civil Liberties Union, January 1992. "Religion and the Public Schools: A
Summary of the Law." American Jewish Congress, March 1993.
Periodicals
Aquino, John. "Can We Still Sing Christmas Carols in Public School?" Music
Educators Journal 63, no. 3 (November 1976): 71-73. Farley, Christopher
John. "Without a Prayer." Time 142, no. 26 (December 20, 1993): 41. Fischer,
Charles M. "The Place of Religious Music in the School Curriculum." Music
Educators Journal 53, no. 3 (November, 1966): 66-67. Gibbs, Nancy. "America's
Holy War." Time 138, no. 23 (December 9, 1991): 60-68. Grier,
Rebecca. "Sacred Music in the Schools: An Update." Music Educators Journal
66, no. 3 (November, 1979): 48-51. Jones, Jim R. "Church and School." Music
Educators Journal 53, no. 8 (April, 1967): 21. Kaplan, David A. "A Question
of Separation." Newsweek 122, no. 24 (December 13, 1993), p. 72. Kersten,
Fred. "Here We Come a Caroling into Court." Principal (November, 1982): 43-
45. Meints, Donald. "Are We Violating the Constitution." Music Educators
Journal 51, no. 5 (January, 1965): 62-67. Novak, Benjamin J. "Building Ties
between School and Church Music." Music Educators Journal 50, no. 1
(September 1963): 119-120. Reynolds, Charles. "Sacred Music: How to Avoid
Cooking Your Holiday Goose." Music Educators Journal 71, no. 3 (November
1984): 31-33. Sanders, A. L., and J. Cramer. "Let Us Pray." Time 135, no. 25
(June 18, 1990): 72. Sanders, A. L., J. Cramer et al. "Prayer in the
Schoolhouse?" Time 135, no. 3 (January 15, 1990): 51. Scamm,
James. "Religious Music in Public Schools." Music Educators Journal 53, no. 9
(May 1967): 46-49. Sonnefield, Irwin. "A Bird's-Eye View of Music
Aesthetics." Music Educators Journal 56, no. 7 (March 1970): 75-83.
News Articles
"Constitutional Rights: School Prayer." The Daily Record, December 24,
1993. "Judge Limits School Prayer." Associated Press, Prodigy News Service,
September 3, 1994. "Teacher Is Fired in Music." Boston Globe, April 2, 1980.
©1996 by Music Educators National Conference
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Holiday School Letter
Dear Concerned Citizens:
The American Center for Law and Justice wishes everyone a happy holiday
season. Undoubtedly, students in school districts all over the country are
celebrating the holidays in a variety of creative and entertaining ways. We
are aware that some of these celebrations may be hindered by questions of
what is permitted or prohibited by the United States Constitution.
Consequently, the purpose of this letter is to assist local school district
officials in addressing the needs and protecting the rights of student
participation in Christmas observances in public schools.
By way of introduction, the American Center for Law and Justice (ACLJ) is a
not-for-profit public interest law and educational group. Our organization
exists to educate the public and the government about the right to freedom of
speech, particularly in the context of the expression of religious
sentiments. The undersigned has served as lead counsel in two significant
United States Supreme Court cases in this area: Lamb's Chapel v. Center
Moriches School District, 508 U.S. 384, 113 S.Ct. 2141 (1993) and Westside
Board of Education v. Mergens, 496 U.S. 226 (1990) and has submitted an
amicus brief on behalf of the ACLJ in the United States Supreme Court
decision in Capitol Square Review and Advisory Board v. Pinette, 515 U.S.
753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995).
Although court decisions permit holiday observances, it is my concern that
certain national public interest groups have been pressuring local school
districts to censor religious expressions during Christmas. This bulletin
will attempt to provide answers for those questions which are most commonly
asked regarding the rights of students and teachers to participate in these
observances.
Are students allowed to sing Christmas carols with religious themes at
school events or in holiday programs?
YES. You should be aware that no court has ever banned the singing of
religious Christmas carols by public school choirs. A case that addressed
this specific issue upheld the singing of religious Christmas carols in
public schools. In Florey v. Sioux Falls School Dist., 619 F.2d 1311 (8th
Cir.), cert. denied 449 U.S. 987 (1980), the United States Court of Appeals
for the Eighth Circuit held that the study and performance of religious
songs, including Christmas carols, is constitutional if the purpose of the
study and performances is the "advancement of the students' knowledge of
society's cultural and religious heritage as well as the provision of an
opportunity for students to perform a full range of music, poetry, and drama
that is likely to be of interest to the students and their audience." Id. at
1314.
The federal appeals court in Florey found that religious songs and symbols
can be used in public schools if they are presented in a "prudent and
objective manner and only as part of the cultural and religious heritage of
the holiday." Id. at 1317. It is important to note that the decision in
Florey was based on two U.S. Supreme Court cases that permit the study of the
Bible in public schools. In School District of Abington Township v. Schempp,
374 U.S. 203, 225 (1963), the Supreme Court stated, "It certainly may be said
that the Bible is worthy of study for its literary and historic qualities.
Nothing we have said here indicates that such study of the Bible or of
religion, when presented objectively as part of a secular program of
education, may not be effected consistently with the First Amendment."
In Bauchman v. West High School, 132 F.3d 542 (10th Cir. 1997), a student
sued the school because of, among other things, the religious content of the
songs performed by the school choir. The court dismissed the lawsuit, noting
that "the Constitution does not require that the purpose of every government-
sanctioned activity be unrelated to religion." Id. at 553. Furthermore, the
court 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." Id., (internal
citation omitted).
Can schools teach about the biblical origin of the Christmas holiday?
YES. In Stone v. Graham, 449 U.S. 39, 42 (1980), the Supreme Court
stated, "the Bible may constitutionally be used in an appropriate study of
history, civilization, ethics, comparative religion, or the like." Therefore,
it would be constitutional for a public school teacher to have students study
the Biblical passages that relate to Christmas (e.g., Matthew 1:18 - 2:22 and
Luke 2:1-20) if the purpose was to study the historical or literary
significance of the passages. The federal appeals court in Florey defined
what activities are considered a part of the word "study," by stating
that "[w]e view the term 'study' to include more than mere classroom
instruction; public performance may be a legitimate part of secular study."
Florey, 619 F.2d at 1316. The Florey court went on to quote the lower court
with approval by stating that "to allow students only to study and not to
perform [religious art, literature and music when] such works . . . have
developed an independent secular and artistic significance would give
students a truncated view of our culture." Id. Of course, any student that
had ideological or religious objections should be excused from the assignment.
In addition, it is important to note that President Clinton expressed concern
that some school officials and community members incorrectly assume that
schools must be religion free zones. To clarify this issue, President Clinton
requested the Secretary of Education, Richard W. Riley, to issue guidelines
which address the extent religious expression and teaching are allowed in our
nation's public schools. In response, the United States Department of
Education provided guidelines to the nation's school superintendents stating
that "[p]ublic schools may not provide religious instruction, but they may
teach about religion, including the Bible or other scripture. . . .
Similarly, it is permissible to consider religious influences on art, music,
literature, and social studies." Religious Expression in Public Schools,
Directive of Richard Riley, Secretary of Education, Page 3. The guidelines
further state that "public schools may teach about religious holidays,
including their religious aspects, and may celebrate the secular aspects of
the holidays. . . ." Id. In addition, "[t]eachers and administrators are
prohibited from discouraging activity because of its religious content, and
from soliciting or encouraging anti-religious activity." Id. The guidelines
clearly establish that students and teachers may celebrate the Christmas
holiday without fear of running afoul of the Establishment Clause.
Are students permitted to write about the origin of Christmas and the
birth of Jesus or other religious sentiments in school assignments?
YES. Some educators have been misinformed by special interest groups that
school officials must ban all religious speech in the public schools because
of the doctrine of the "separation of church and state." It is well settled,
however, that private religious speech is protected by the First Amendment.
In Pinette, the Supreme Court stated:
Our precedent establishes that private religious speech, far from being a
First Amendment orphan, is fully protected under the Free Speech Clause as
secular private expression. Indeed, in Anglo-American history, at least,
government suppression of speech has so commonly been directed precisely at
religious speech that a free-speech clause without religion would be Hamlet
without the prince.
515 U.S. 760, 115 S.Ct. at 2446 (internal citations omitted). In Westside
Community Schools v. Mergens, 496 U.S. 226, 250 (1990) (emphasis in
original), the Court held: "[t]here is a crucial difference between
government speech endorsing religion, which the Establishment Clause forbids,
and private speech endorsing religion, which the Free Speech and Free
Exercise Clauses protect." Consequently, students have the free speech rights
to "express their beliefs about religion in the form of homework, artwork,
and other written and oral assignments free of discrimination based on the
religious contents of their submissions." U.S. Dept. of Education Guidelines
at 4.
May schools continue to refer to the winter vacation as "Christmas" break?
YES. School districts are under no constitutional obligation to
rename "Christmas vacation" as "Winter Vacation" or some similar name. The
Supreme Court itself has acknowledged with approval that Congress gives
federal employees a paid holiday on December 25 and Congress calls
it "Christmas." See Lynch v. Donnelly, 465 U.S. 668, 675, 680 (1984).
I hope this letter helps clarify the legal issues. The American Center for
Law and Justice is committed to defending the constitutional rights of
students on their public school campus. We are also committed to ensuring
that the rights of citizens in your community are protected. Because of our
commitment, we are available to answer any questions you might have
concerning this letter. Please feel free to share this information with your
school board, their attorney, staff and principals.
Very truly yours,
AMERICAN CENTER FOR LAW & JUSTICE
Jay Alan Sekulow
Chief Counsel
National Office:
1000 Regent University Drive
P.O. Box 64429
Virginia Beach, VA 23467
757-226-2489
757-226-2836 (Facsimile)
************************************
SCHOOL BOARD POLICY FILE: I
School District of Holmen SECTION: IND
Holmen, WI 54636 Instruction
Use of Sacred Music In Public Schools
It is the position of the School District of Holmen that the inclusion of
significant sacred and secular music is imperative to facilitate a total
music experience for the Holmen student. Choral music offers a wealth of
literature that reflects and supports diverse cultures, traditions and
people, as well as compositional styles of all eras. To achieve any
educational objective, the quality of repertoire is of paramount importance.
While public school teaching objectives and criteria for repertoire selection
should not support religious indoctrination, the selection of quality music
will invariably include music with sacred text within its broad scope. To
exclude sacred music from the public school curriculum would hamper student,
as well as teacher, opportunities in gleaning artistic and aesthetic
expression.
“Sacred” refers to all manner of religious belief and not only to the Judeo-
Christian teachings. “Secular” refers to non-religious considerations.
Since choral music, with a sacred text, comprises such a substantial portion
of the artistic repertoire from the choral medium and the history of music,
it should retain an important place in the music education of the Holmen
student.
Considerations for Selection of Repertoire
* Select repertoire on musical and educational value.
* Show sensitivity to the traditions of different people and their culture.
* Neither promote nor inhibit religious views.
* Observe all local and school policies.
* Develop a community awareness of various religious beliefs.
* Attempt to diversify programming over a period of one school year, if not
longer.
* Document all performances by printing and saving copies of concert programs.
Proposed: February, 1993
Approved: May 17, 1993
http://www.holmen.k12.wi.us/District/SchoolBoard/Policies/99-00/web/I-
Instuction/Sacred%20Music%20In%20Schools.htm