Elkhart school district promises to nix live Nativity; plaintiffs seek court order

Published: Nov. 1, 2016 at 2:51 PM EDT
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A student and parents suing a school district in Elkhart over its annual holiday pageant are still seeking a court order preventing the school from reverting to old versions of the show that contain live Nativity scenes.

a U.S. District Court filing in South Bend by Concord Community Schools in early October says the superintendent and school board won't include live Nativity scenes in the Christmas Spectacular going forward.

The anonymous plaintiffs said in a court filing last week that school officials' promises to use mannequins instead of live actors to depict the Nativity aren't enough.

The court filing is the last one expected from the plaintiffs before the ruling. Their lawyers maintain the show violates U.S. constitutional prohibitions against endorsement of religion.

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Court rules in favor of controversial Concord HS Nativity scene

From Sept. 14, 2016

A controversial Concord High School Christmas show can continue to include a mannequin Nativity scene, a federal court ruled Wednesday.

In 2015, the Wisconsin-based Freedom From Religion Foundation (FFRF) filed a lawsuit against the school district on behalf of a Concord student and his father, saying that the school's live Nativity scene illegally endorsed religion.

The 2015 ’Spirit of the Season’ portion of the Christmas Spectacular was revised. It recognized Hanukkah, Kwanza, and Christmas, and the Nativity scene featured mannequins rather than students. Bible verses were also removed from the performance.

In Wednesday's ruling, the court found that the show as performed in 2015 did not violate the Establishment Clause.

From the Freedom From Religion Foundation:
While pleased that a live nativity pageant in an Indiana public school has stopped for now, the Freedom From Religion Foundation expressed disappointment over a federal ruling today saying a school may employ mannequins in a Christian manger scene during a Christmas celebration. U.S. District Judge Jon E. DeGuilio for the Northern District of Indiana, issued the 37-page ruling in a case brought by FFRF and the American Civil Liberties Union with parent and student plaintiffs. The federal suit challenged a live student tableau of students as part of Concord Community Schools' annual "Christmas Spectacular." The ACLU and FFRF won a preliminary injunction Dec. 2 against the live nativity. The nearly 50-year violation involved students reenacting the supposed birth of the Christian savior, as school officials read passages from the New Testament and devotional Christmas hymns dominated the musical program. The district responded to the lawsuit by adding one Chanukah song and one Kwanzaa song to its program. After the preliminary injunction, it replaced the student actors in its nativity scene with mannequins, but kept the usual 20 minutes of devotional Christmas songs performed by students during four public concerts. The decision today held that the 2015 change from a live nativity enactment to a static nativity display did not violate the Establishment Clause. The ruling left untouched the court's earlier decision enjoining the live nativity. The Court's ruling was predicated on what it saw as significant changes to the school district's program, brought on by the litigation. The judge called the changes sufficient to avoid any constitutional problem with the 2015 concert. FFRF Co-President Annie Laurie Gaylor said, to the contrary, that in fact the unannounced inclusion of a manger scene was a disturbing shock and offense to the plaintiffs observing the concerts. FFRF and the ACLU note that staging a nativity scene, live or otherwise, during a school event has no secular or educational purpose. "The nativity scene and the concert's heavy focus on the religious aspects of Christmas send an exclusionary message to our clients and others that the school prefers Christians over non-theists and people of other faiths," noted ACLU Senior Staff Attorney Heather Weaver. The case is still ongoing. Judge DeGuilio has asked the parties to submit supplemental briefing on how to remedy the violations to plaintiffs' rights occurring in 2014 and earlier. Those issues should be fully briefed by the end of October. FFRF thanks its local plaintiffs, who are under a protective order, for their willingness to challenge this longstanding violation despite community uproar and threats delivered against anyone perceived to be involved in the case.