Bah, humbug?

Okay, at the risk of being labeled a Scrooge, I’m going to say it, because one of the things we bloggers do is challenge each other (hopefully politely) to spark thinking and promote discussion: Miguel, I liked your team’s ‘Xmas card‘ but I think it is illegal.

Public schools (and, by extension, their employees) have a legal obligation to be neutral when it comes to religion. This means that public schools may not favor one particular religion over another  (e.g., Christianity over Judaism), one particular religious denomination over another (e.g., Southern Baptist over Mormon), or even religion over no religion (i.e., religion over atheism). A long list of United States Supreme Court cases bears this out, including:

The electronic card created by Miguel’s team says Happy Holidays and shows a snowman, ice skaters, and penguins. All of these are nonreligious and are fine on their own. However, because Miguel refers to the electronic card as a ‘Xmas card,’ I don’t think the card survives the first prong of the Lemon test (a secular purpose). Because the electronic card uses other arguably religious symbols such as a Santa hat, mistletoe, holly, reindeer horns, a poinsettia, and what appears to be a scarf decorated with Christmas tree lights, it may be that the card also fails County of Allegheny‘s nonendorsement test
(government action may not have the purpose / effect of endorsing
religion by conveying a message favoring a particular religious belief).

Even if these latter symbols are considered nonreligious, they still are pretty clearly associated with a Christian holiday. Individuals who are of the Islamic, Jewish, Sikh, Buddhist, Hindu, or Taoist faiths, for example, rarely wear or use these symbols during this time of year. Use of even these possibly nonreligious symbols can be educationally troubling because schools also have a professional / moral / ethical obligation to create inclusive environments for students and employees.

It may be that few of the nearly 400 employees in Miguel’s school district that received the card are non-Christian. It may even be that those individuals who are of other faiths (or no faith) were not troubled by the electronic card. However, it only takes one or two individuals to raise a Constitutional concern and, I think, federal courts are pretty likely to hold that the card violates the Establishment Clause of the First Amendment. The Establishment Clause is in our Constitution to protect the rights of religious minorities. As retired Justice Sandra Day O’Connor noted, "We do not count heads before enforcing the First Amendment."

All in all, then, I think Miguel’s team should have done some things differently:

  1. Eliminated all symbols even arguably related to Christmas.
  2. Changed the wording from Happy Holidays to Have a great break (or something like that).
  3. Not referred to the electronic card as a ‘Xmas card.’

Are these suggested changes political correctness run amuck? Maybe. Are they measures that protect the district against legal liability and increase inclusiveness? Absolutely.

Finally, I will close with two resources that may be useful to folks interested in this issue:

I look forward to hearing others’ thoughts on this topic.

24 Responses to “Bah, humbug?”

  1. Scott, how nice to know a lawyer! Thanks for the suggestions! We’ll adjust accordingly for the future. I’ve updated my entry to reflect a link to your Bah, Humbug! entry.

    With appreciation,
    Miguel

  2. If you don’t say Christmas card, but just say holiday card, for example, people wouldn’t know what you mean.
    Christmas is an official federal holiday: http://en.wikipedia.org/wiki/Federal_holiday
    I think if Christmas were not a recognized holiday (like good friday or easter, for example), you would have more of an argument.

    The card isn’t advocating one to be christian. I think as long as it is secular and doesn’t include obvious religious symbols like the nativity scene or the cross it is fine. Santa is recognized with the holiday, just like the easter bunny or a green clover or a turkey.

    People celebrate official holidays even if they are about things they were not or are not part of (martin luther king day, independence day, veteran’s day, columbus day).

    I think it would be over-protective to ban use of the name of a holiday or secular symbols associated with that holiday, just to prevent some hypothetical lawsuit. If the supreme court thinks otherwise, that is fine with me, let there be a lawsuit to clarify/specify this. The same thinking is why most schools completely block all blogs, yahoo, wikipedia, youtube, myspace, and much of the internet.

    Another example is that Chinese people celebrate the new year on a different date than we do. That doesn’t mean we should not ever mention our new year’s holiday because some people may not celebrate it.

  3. I’m with Doug on this one. Xmas is not Christian. Many Christians feel that the “X” in Xmas takes Christ out of it. And Happy Holidays just says enjoy the time off (if you get it). Since when is a santa cap a Christian symbol? Christ on the cross is a Christian symbol. The Christian fish is a Christian symbol. The Holy Bible is a Christian symbol. Mistletoe, reindeer horns, and holly are Christian symbols? Sorry, Scott. That is a reach even by the most over-reaching judge. I appreciate what you are offering here, but I would not cave to such pressure. Political correctness does not fit in the situation where one would sue over what Miguel did. Ignorance comes to mind, though.

  4. As anticipated, we have dissenters! A few thoughts…

    1. Xmas is clearly a derivation of Christmas and there’s a history (see the Greek language) behind this. Just ’cause one calls it Xmas instead of Christmas doesn’t make it legally immune. Miguel called it a Xmas (Christmas) card: a card for a religious holiday.

    2. Government agencies, including schools, may make reasonable accommodations of individuals’ religious faiths. This includes not holding school and/or work on religious holidays (FYI, it also includes release time for prayer, Bible class, etc.). This is different from government employees sending out a missive in furtherance of a religious celebration.

    3. Santa Claus: a derivation of Sinterklaas, or jolly old St. Nick, or whatever you want to call Saint Nicholas. Bottom line, his origin is a Christian religious figure. I’m pretty sure no other faith claims this person. Similarly, holly, mistletoe, Christmas trees… all have derivations in Christian symbolry, even if they’ve now been secularized (Scott, I’m not quite sure where your claim of my ignorance comes from. Ouch!). Again, folks of other faiths rarely, if ever, wear these symbols during this time of year. Now, is it overprotective to ban these symbols for legal reasons? Maybe. Is it supporting evidence of religious intent behind the card? Also maybe (and, arguably, probably).

    4. Christmas can be mentioned as part of a more inclusive display. It’s the furtherance of Christian messages / symbols to the exclusion of other faiths with which courts take issue (this is the lesson of County of Allegheny v. ACLU). Example 1: lower federal courts have frowned upon public school Christmas choral concerts but have allowed winter choral concerts that contain some, but not all, Christian songs. Example 2: you probably could display the 10 Commandments within a larger display of other political / historical / religious rules of law, but you’d get in trouble if you displayed it by itself. The key here is to be more inclusive, not to necessarily be exclusive. Miguel’s team’s electronic card had nothing to counterweight the Christian / quasi-Christian message / symbolry. I should have put this as option #4 for his team: be more inclusive (instead of maybe making some of the other 3 changes I suggested).

    5. Neither of you, Doug or Scott, addresses what may be the most important part of all of this, which is not schools’ legal obligations but rather their ethical / professional / moral obligation to be inclusive of other faiths. The two resources I cite at the end of my post emphasize the importance of inclusiveness rather than simply surrounding employees / students with Christian / quasi-Christian messages and symbols. What is the obligation of Miguel’s team to be inclusive of non-Christian employees?

    6. Doug, as a school law professor / attorney, I never advocate using the law to club schools into doing things that are educationally inappropriate. However, given my comments in my original post and #5 right above, I’ll stand by my belief that a less “Christian” and/or more inclusive card would have been more appropriate, regardless of what legal consequences also might accrue. I think this is different than your ‘blocking Web 2.0 technologies’ examples because such actions go against what schools should be doing (i.e., preparing students for their future). Schools should not be intentionally or unintentionally sending messages of exclusion to employees or students.

    Thanks for the spirited commentary. Who’s next? =)

  5. I never said you were ignorant. What I said was that the person who would sue over it would be. I would have to say that in this situation, I am the ignorant one here to the facts due to your extensive legal background. While I may appear to be arguing legal points, I am actually just viewing it as a reasonable person instead of one looking for a legal fight. There are those out there just waiting for the opportunity to jump on a lawsuit. I understand your point about viewing it from that position, though. Fortunately, I am not the person who is paid to be concerned with it in my ISD. That guy makes way more than I do.

    But I do have one follow-up question. You say that schools should not be “intentionally or unintentionally sending messages of exclusion to employees or students.” So what is the option? Avoid all mention or observance of holidays? We do not take days off for these other days that are out there, and there will always be some holiday not being observed or discussed even if you try to include them all. It seems like a catch-22.

    By the way, I love the intellectual taunting at the end of your reply: “Who’s next?” I can just see you sitting there waiting to flex that mental muscle on the next poor sap that wanders in to the web. Good luck to them. 😉

  6. Scott, you make me laugh! Thanks!

    I’m not trying to taunt anyone – just ready to see what other opinions folks have on this. We learn from the exchange: http://en.wikipedia.org/wiki/Dialectic

    Re: Miguel’s card, I think the options include changing some of the language and imagery of both the card itself and the message that accompanied it when it was sent out (FYI, Miguel added to his post – the accompanying e-mail and his clarifications make this more okay than I originally thought).

    Re: religious observances and school holiday celebrations, the option is to at least make a sincere attempt at being inclusive of multiple faiths (and no faith). This teaches kids more about the diverse world we live in, and better teaches students about the power of the Constitution in our lives, than either ignoring that we’re religiously diverse or prohibiting religious holiday celebrations all together. Sure, you’ll never be able to observe them all, but you probably can get the majority of the ones in your community at one point or another. I think the Tolerance.org article that I link to does a nice job of addressing this issue. I ask the graduate students in my preservice administrator school law course: “What would a Hindu or Buddhist (or Sikh or Muslim or Jewish…) kid think about how your school looks, feels, and acts, particularly during this time of year? Would she feel that her religious heritage was included or valued?”

    Re: not having school on a religious holiday, a district can set up its calendar around the religious holidays it knows that most (or many) students will be observing and then make individual student and/or employee accommodations for other holidays.

    Hope this helps. Thanks for being part of the dialectic.

  7. Wow, what fun! I love these kinds of discussions. Maybe I will spice it up with a different perspective.

    As an elementary school principal, I am very intrigued by this argument. Did I just read that Scott Floyd thinks that the Holy bible is a Christian symbol? I may not be an expert in religion or the law, but I always thought that the Old Testament was a Judea/Christian book – isn’t it the same as the Jewish Torah? Maybe the New Testament is strictly Christian, but when I hear the term Bible, I think of the Torah. Isn’t the story of Adam and Eve in both?

    As a Jew, I understand that I live in a “Christian country” founded by people who escaped religious persecution for their own religious freedoms – Christian freedoms, that is. The Pilgrims in Massachusetts sailed to the new land for their own religious freedom, not for religious freedom for ALL people.

    So, what does that have to do with schools today? I have been a principal in two different public schools in my career. The first school was made up of 99% Christian children. We had a small Christmas tree in the office, and a large one in the district office. Did this offend me? Absolutely, because I firmly believe in the separation of church and state, yet I understand that the Supreme Court has ruled that trees in public places does not violate the Constitution. That school really had a Christian feel, even though it was a public school with a Jewish principal. Now, I am at a public school that is probably 80% Jewish. There are no Xmas trees or menorahs – only some snowmen. This is not due to me, but to the fact that this community and this school believe in the separation of church and state.

    If I worked in Miguel’s district, I would have been offended by his electronic card. I think his intentions were good, but he was a bit insensitive to others who are not Christian. Don’t feel bad, Miguel, I am used to it living in this country. of course, there is no other country on this planet I would rather live, and the fact that we can have this type of discussion is proof why.

  8. Thanks for all the comments! Of course, Scott’s post was educational for me…while I would hate to be considered a religious racist, it’s clear that my group did cross the line. That I’m not alone–my boss sent out his own–is poor consolation.

    I am torn between posting a follow-up entry on my work blog and sharing the info that Scott mentions, or just removing the entry and the ecard altogether.

    Another option is updating it…many folks haven’t even read the card yet, so changing it to be “friendly to all” is a possibility. Worth the effort? Maybe not…maybe it would be easier to just sanitize the ecard–rather than leave it Santized or sanctified .

    What advice, O Wise Folk, do you have for me? (I almost wrote wise men, but then realized that I would then be offensive according to the Book of Gender….)

    lol

    Miguel

  9. Miguel, I think leaving all of this as is more educational for folks than going back and sanitizing or deleting. As a school law professor, I can state unequivocally that this stuff is confusing to everyone. I’m not even sure that your team definitely “crossed the line” – only that you arguably did. If you’re comfortable leaving it up, I think this whole exchange can lead to some good reflection by others. We’re all learning here. No harm, no foul, and next year things will be a little different, I’m imagining.

  10. As a fellow school law professor, I can tell you that these are issues about which people are rarely clear and/or reasonable. Inevitably, during the class sessions wherein we discuss the cases Scott has listed, the conversations get wonderfully heated. So, I’m impressed with the civility here…so far.

    I particularly like Dave Sherman’s take (as a fellow Jew, that’s no surprise). He reinforces something I tell my students all the time: nothing’s officially illegal unless someone complains. For example, I’m certain that violations of the Establishment Clause occur in public schools in the state of Utah all the time. But, since many of the schools there serve a population that is entirely of one faith, those violations are not challenged.

    That dynamic notwithstanding, I just want to reframe what Dave wrote by using a fancy-ish word: “hegemony.” (see: http://en.wikipedia.org/wiki/Hegemony). To me, the Establishment Clause is the legal codification against religious hegemony. And, PUBLIC schools, as state actors, therefore, have both a legal and moral (thanks, Scott!) obligation NOT to reinforce the Christian hegemony that exists in our country today.

    If I may, let me offer some insight into what it has been like to live amidst such hegemonic conditions this past month (a little background: I am a professor at a private university, Jewish, and have an 18-month old son). All of the following things happened to me within two weeks of each other:
    1. My department secretaries decorated the department office with, among other things, a small christmas tree, Santa Claus wall decorations. In past years, they would play “holiday” music, making walking into the department office a complete Christmas immersion experience.
    2. While walking with my son around the building in which I work, a fellow professor stopped me to interact with my son and said to him, “You must be looking forward to Christmas, young man!?!”
    3. I ran into a doctoral student in the mall. He asked me (and my son, again) if we were there doing our Christmas shopping.
    4. I love that I live near the village of Huntington, NY and visit the village nearly every day. But, during December, one of the stores pumps “holiday” music throughout the entire village. The song list includes many Christmas songs. I can’t walk through my favorite public space without being forced to hear and think about Christmas.

    That folks, is hegemony. This is not a “political correctness” issue; this is about decency and respect for those in any sort of cultural minority group.

    As if that’s not enough, I close by offering my own (surely controversial) stance on these matters. I think the idea that adding symbols of other faiths to an otherwise Christian display in the name of inclusiveness eradicates any Establishment Clause problems is complete hogwash. Chanukah is not a particularly holy or important holiday for Jews. So, putting a menorah next to a Christmas tree, for example, amounts to throwing me (and my fellow Jews) a bone. It’s all a ruse to promulgate the hegemony of Christianity…IMHO.

    Yours,
    The Grinch

  11. Grinch, civility…exists because we are “safe.” In the interests of taking my own medicine, what would happen if I were to post Scott’s excellent points about this issue, and then someone complained because they followed the links here and read your comments?

    Then, I would certainly receive a reprimand for having been aware of the offense–the ecard–and NOT removing it.

    So, my options are pretty straightforward:

    1) Sanitize the eCard.
    2) Remove it.
    3) Leave it up, say nothing to anyone.
    4) Leave it up, write about it and worry about being possible repercussions.

    Once I know that there has been a possible violation, I’m obligated to take action.

    8->

    Miguel

  12. Miguel, I think you should do #4. Otherwise, how will others learn from this? I wouldn’t worry about repercussions – the event is now done, no one complained, everyone has learned something from this (woohoo!), and you’ll get another chance next year.

    Hey, Jon, you start off talking about civility and then crack on Utah? =)

    P.S. Want a bunch of comments on your blog post? Start talking about church-state issues!

  13. Miguel, I agree with Scott. We are only offering you our interpretations of the law and opinions on the matter. It’s entirely possible that anyone in a position to reprimand you could/would disagree with us; in which case, you’re fine. Furthermore, since these issues are open, by leaving things the way they are (and perhaps adding some commentary), you’re creating a teachable moment…and isn’t that part of your job description?

    While we’re at it…we had an issue here on Long Island a week or so ago. A school bus driver wore a Santa Clause cap while driving his routes. A parent complained. The district asked him to stop wearing the cap. The driver was very upset. Upon further review, the district’s attorney concluded that state law allowed the driver to wear the cap since Santa Clause has been deemed a secular symbol. Naturally, I disagree, but I’m in a distinct minority on this one…

  14. Hmm…the question now becomes, should I write something about religious symbols in school district publications when I’m responsible for educational technology?

    Thanks for the conversation, folks!

  15. Miguel, I’m truly sorry you have to put up with my husband. Merry Christmas. =)

  16. Miguel probably will not receive much if any negativity for the eCard. Leaving it up to point to in future PD sessions would be worth it (and give you a reason to leave it up).

    I wonder how the Holy Bible is not a Christian symbol. I never said it could not be related to other religions, but it is most definitely a Christian symbol. Using your thinking, Dave, you could say it is Muslim as well since Muslims believe in Jesus Christ (although Allah (?) is their savior). But I will not get into a religious difference debate since I am not well-versed in other religions’ beliefs.

    And I would add that the location of Miguel’s school district is at an advantage for Christians. We have less issue with people disliking Christian influence into different environments in the South. I assume that most are aware they are moving into the Bible Belt when they move to the South. Does this make it right? Nah, but it does limit the complaints.

    Just consider what happened to the Dixie Chicks down here when they bashed a fellow Texan (even when a lot of Texans might otherwise agree to some extent)…. While not a religious issue, you get the point. The prevailing attitude is “If you don’t like it here, then move.” Remember the prayer before football games court ruling. Not much has changed because of it. Then again, in Texas, football is a religion all its own. Does this attitude make it right? Nope, but I guess the majority is ruling.

    I too have enjoyed the conversation/debate. That is why I have made Dangerously Irrelevant a part of my Personal Learning Network. I do not have the time to take a school law course right now, so this is the next best thing. I would actually prefer to take the course in this format. It is much more meaningful. Hmmm. Does that reflect well on blogging over straight lecture?

  17. This is exactly why I started blogging earlier this year. In my opinion, this is the best way to hold a debate where everyone is right and wrong at the same time (except when there is alcohol involved) 🙂

    Scott, I completely understand the deep south and the Texas angles, which is why I live in Illinois. Your point exactly about people choosing where they want to live.

    Sometimes it is better to take “When in Rome…” approach than to buck the system. That is why I actually think Miguel should do nothing more with his eCard – just let it be. He needs to pick the right battles, and this is probably not the one. Regarding the Bible argument, I too, am not a religious scholar, but I do not remember reading about Jesus in the Old Testament. The Bible is a book of parables, or stories, for the entire world to read, think about, learn from, and agree or disagree with. It does not belong to any one group. It is a “religious” symbol, not a Christian symbol in my very humble opinion.

    But, I definitely am not the right person to continue a discussion about religion (just ask my wife!). I think from now on I will stick to education topics, something I know a little bit more about. With that being said, So what does everyone think – should a school district block MySpace or not??? (just kidding – aren’t you tired of that argument, too?).

    Happy New Year – (how’s that for a SECULAR message?)

  18. Okay. I should really let this go, but… are there not prophecies throughout the Old Testament? Is Jesus Christ not the only man to have fulfilled those prophecies? The odds of any one man doing that are astronomical, yet Jesus Christ did. So that makes it a Christian symbol to me (note the emphasis on me here). Okay. I will go now.

    As for MySpace, my students just log in through the international portal which is not blocked to access their accounts. Or, as Miguel offered in one post, they just enter the IP address to get to it. Both work equally as well.

  19. Yep, theistic discussions are for another place. Thanks!

  20. Ok…I’ve linked to this entry from the work blog. Fascinating conversation, indeed!

    Betsy, I appreciate the trouble YOU must endure. However, conversations with Scott convince me that you have him under strict, almost tyrannical control. ..or at least, so he told me. (evil grin)

    ;->

    Miguel

  21. I’ve been watching the discussion from the sidelines, not knowing if this fits into the conversation, but I’ll bring it up anyways:

    If all religious symbols are taken away from the schools, kids – especially kids in highly homogeneous environments – will sometimes lose an important opportunity to learn about others.

    My 2nd grader attends a public elementary school that is mostly Christian or non-religious. This year, however, the “token” menorah (to somewhat paraphrase an earlier post) was placed up with the Christmas tree decorations in his classroom. My son found out what Chanukah was, learned a little bit about another religion, and discovered that one of his best school friends was Jewish. (Guess religion isn’t one of those things that 2nd graders usually talk about when they’re playing Nintendo or football!)(I guess it isn’t something that moms discuss either, though we see each other weekly at Cub-Scouts …)

    So my son learned from his friend – how is Chanukah the same and different as Christmas, what does each mean, what food do you eat, do you get and give presents? (My son even got to taste some special food that his friend’s mom made for their celebration.) He thinks his friend is “cool”, so thus, being Jewish is now “cool”, too.

    (Now maybe someone could argue that it wasn’t the friend’s responsibility to teach my son about another religion, and I will continue the discussion with my son, but I think it meant a lot more coming from a friend than us just discussing it with no context. I think it also made the friend feel special that he could share something that my son thought was neat.)

    Understanding begins in little steps, and this learning experience likely would not have happened without that paper menorah on his 2nd grade classroom wall to start the discussion.

    Happy 2007!

  22. Scott, I have another twist on this. How does this affect Christmas bonuses? While my ISD cannot afford those, many in our area do, and they call them Christmas bonuses. While a person would be crazy to sue over receiving a Christmas bonus, this conversation made me wonder if they are illegal/improper as well. Thanks for the continued discussion.

  23. Districts in your area give teachers bonuses? Wow, that’s a new one on me. I never heard of such. I guess it’s cool if the district can afford them – I wonder what line item those are in the budget. I’m not a school finance expert – I guess this is legal since it keeps occurring. Of course, who would challenge this? Maybe taxpayers who wanted “better” use of public dollars…

    Can you call ’em “Christmas bonuses” instead of “winter bonuses?” Probably not “kosher” to those of other faiths. If I was of another faith, maybe my level of concern would decrease the larger the bonus was .

  24. I think they do it because Texas is ranked below the national average in salary by about $5000. They give an extra $200 or $500 and everyone loves them for it. Like I said, my ISD cannot afford it. We are tied for the lowest paying district in the state residing in the lowest paying region. Lucky me.

    Since Texas gives quite a bit of local control to the ISD’s, I would expect that they are in no danger of getting called on it. They just have to pay at least the minimum amount of salary as set by the state (like mine).

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