Controversial Concord HS Nativity scene faces new challenge

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A controversial Concord High School Nativity scene performance is facing a new challenge.

Multiple groups are now asking a judge to weigh in on the revised version of the performance that took place last winter.

After a federal judge banned a live Nativity scene that has been performed for nearly 50 years, the school decided to use mannequins instead of student actors.

The Freedom From Religion Foundation, the American Civil Liberties Union, and the ACLU of Indiana filed a motion for summary judgement Friday.

The groups say their cause for concern is that the religious scene has been and is being performed at a public school by students, and as a government entity, they believe that's a violation of the Establishment Clause of the First Amendment.

"The addition of mannequins in place of students in the Nativity scene changes nothing legally," said Sam Grover, staff attorney for FFRF, "the school district did that to circumvent a ruling by the court last year that prevented them from having live student performers during the nativity scene."

Grover says it's up to the court to decide if the school district violated that injunction that was issued in 2015.

Last year, the FFRF and the ACLU sued Concord Community Schools on behalf of a Concord High School student and his father, arguing that a Nativity scene conveyed an endorsement of religion.

U.S. District Judge Jon DeGuilio issued a preliminary injunction to stop 2015's live performance, ruling that "the living Nativity scene impermissibly conveys an endorsement of religion and thus runs afoul of the Establishment Clause."

School officials said the injunction only applied to a live scene and that they complied with the judge's order by using mannequins.

"The injunction is a preliminary ruling and applies only to this year's Christmas Spectacular performance," Concord Community Schools Superintendent John Trout said in a statement last year. "For 2015, the court ordered that the school not present a live Nativity scene. That is, live performers cannot perform the Nativity scene in this year's Spectacular, and Concord Community Schools will comply with that order."

There was applause and cheering at Concord when the curtain rose on opening night, revealing a static Nativity scene.

In the months following the performance, two more families anonymously joined the lawsuit against Concord Community Schools.

"Concord's argument that it has alleviated any appearance of religious endorsement through its passing references to Hanukkah and Kwanzaa is belied by the facts," FFRF Staff Attorney Sam Grover noted Friday. "In reference to Hanukkah, the school corporation gave a 35-second introduction about the holiday and then had its chamber strings perform an entirely instrumental version of 'Ani Ma'amin', which is a Jewish piece, but not one that pertains to Hanukkah. For Kwanzaa, the introduction was 38 seconds and the song that followed was in a foreign language. By contrast, the portion of the show dedicated to Christmas lasted over 20 minutes and included nine devotional pieces, seven with English lyrics."

"Generations in Elkhart have been misled by their school system to believe that it's OK for public schools to promote Christianity," FFRF Co-President Annie Laurie Gaylor said in a media release. "The death threats against our plaintiffs and attorney and the community hostility are a direct result."