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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)

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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

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Ms. Saunders' Music Website

Sacred/Secular Music