885 F.3d 1038
7th Cir.2018Background
- Concord High School staged an annual "Christmas Spectacular" for decades; the 2014 second half was a largely religious 30‑minute segment (biblical narration, live nativity, many Christian carols).
- In 2015 FFRF, a parent, and a student sued, alleging the Spectacular violated the Establishment Clause; the district court preliminarily enjoined the school from performing the initially proposed 2015 revisions.
- After the injunction the school further revised the show (the 2015 version): removed New Testament readings, shortened the nativity to a brief tableau using mannequins, and added brief tributes to Hanukkah and Kwanzaa; plaintiffs amended to challenge the 2015 version.
- On cross‑motions for summary judgment the district court held the 2014 and the proposed (preliminary‑injunction) versions unconstitutional, awarded nominal damages, but found the actual 2015 production constitutional; both sides appealed.
- The Seventh Circuit affirmed: applying endorsement, coercion, and purpose tests, the court concluded the 2015 version did not endorse religion, did not coerce religious participation, and had primarily secular aims (entertainment and pedagogy); it rejected Concord’s claim that the earlier claims were moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Endorsement — does the 2015 show convey government endorsement of Christianity? | The religious nativity and many Christian carols make the program a school endorsement of Christianity. | The 2015 edits (no narration, brief mannequin nativity, inclusion of Hanukkah/Kwanzaa, secular first half) make the show a secular seasonal concert. | The 2015 show, viewed in context, would not make a reasonable observer think the school endorsed religion. |
| Coercion — did the show coerce students/audience to conform to religion? | Students and captive audience faced peer/public pressure to participate or appear supportive of Christianity. | No prayers or religious acts; attendance/participation choices and the content did not coerce belief or participation. | No coercion found: unlike Lee/Santa Fe, there was no prayer or compelled religious exercise in 2015. |
| Purpose — was the school's primary purpose religious? | Inclusion of religious elements and limited attention to other holidays shows a religious purpose (possibly post hoc justification). | Primary aims were secular: cultural education, entertainment, and student pedagogy. | The district court reasonably concluded the primary purpose was secular (entertainment/pedagogy), so the Lemon purpose prong is satisfied. |
| Mootness — are claims about the 2014 and proposed versions moot after school changed the show? | Changes are litigation‑motivated and the school has not made formal binding commitments; public pressure could cause a reversion. | The school intends to keep the 2015 version permanently and so the earlier claims are moot. | Concord failed the heavy burden to show it is "absolutely clear" the challenged conduct will not recur; claims about the 2014/proposed shows not moot. |
Key Cases Cited
- Everson v. Board of Education, 330 U.S. 1 (incorporation of Establishment Clause to states)
- Lynch v. Donnelly, 465 U.S. 668 (allowing creche within larger secular display)
- County of Allegheny v. ACLU, 492 U.S. 573 (endorsement test and reasonable observer context)
- Lee v. Weisman, 505 U.S. 577 (coercion in school prayer at graduation)
- Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (student‑led prayer at football games as coercion)
- Lemon v. Kurtzman, 403 U.S. 602 (three‑prong test; secular purpose requirement)
- McCreary County v. ACLU of Ky., 545 U.S. 844 (sham/secondary purpose inquiry)
- Doe ex rel. Doe v. Elmbrook Sch. Dist. (Elmbrook II), 687 F.3d 840 (Seventh Circuit coercion/context decisions regarding schools)
- Books v. Elkhart County, 401 F.3d 857 (Seventh Circuit endorsement/context analysis)
- Wis. Right to Life, Inc. v. Schober, 366 F.3d 485 (mootness and sincere self‑correction)
- Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (recent mootness/self‑correction and endorsement test discussion)