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I believe that in the US, public schools are allowed to perform music with religious texts, and that this has been upheld by the Supreme Court on the grounds that the music program is teaching music, heritage, and culture, not indoctrination. I lack the legal knowledge to be able to quote case law and wouldn't mind being educated or having my assumptions corrected.

If a public school banned the performance, by students, for a public audience, of music with religious texts, could a student or student's parent (assuming the student is a minor) claim that their First Amendment right has been violated by the ban?

This is a public performance, by students, which is organized by the school. The concert program is a long-standing tradition which usually includes many different songs from all over the world and a small number of sacred songs. The administration is considering banning the ones with religious content.

Edit to clarify a few comments:

  1. No student would be forced to do anything at contrary to their beliefs.

  2. The performance would be singing, instrumental.

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  • Is the school banning performances by students or by staff or by either?
    – bdb484
    Nov 3, 2022 at 1:02
  • Performances by students, for a public audience
    – nuggethead
    Nov 3, 2022 at 1:31
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    It's not clear whether you are asking about performances organized by students or performances organized by the school, for example as part of its music curriculum (if public school music programs still exist).
    – phoog
    Nov 3, 2022 at 8:29
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    You seem to be asking an equivalent to "Can Christian students be forced to perform Islamic ritual music", is that so? Nov 3, 2022 at 19:37
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    @nuggethead So nobody is going to feel left out and alienated if they feel uncomfortable performing and opt out? Nov 3, 2022 at 20:40

3 Answers 3

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This question mixes up two separate although related issues:

  1. Does a student have a first amendment right to perform "sacred" music during school time?
  2. Is a public school allowed to include such in its curriculum, or does the First Amendment's Establishment Clause forbid that?

The answer hinted at in the question applies only to issue 2, while the title of the question goes to issue 1.

Engel v. Vitale, 370 U.S. 421 (1962) held that school officials may not compose an official prayer, and mandate or encourage its recitation. (mandatory recitation would probably have been prohibited by West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) much earlier.) The ruling of Engel v. Vitale, would also have applied to sung prayers. Later rulings, consistent with Engle prohibited "one minute for prayer or meditation" ( Wallace v. Jaffree (1985)), clergy-led prayer at middle school graduation ceremonies (Lee v. Weisman (1992)), and school-organized student-led prayer at high school football games (Santa Fe ISD v. Doe (2000)). But none of these prohibited religious music as part of an instructional music program that was not a form of worship. All the above cases prohibited school-organized prayers intended as prayer or worship.

As to issue #1, it is settled that students have the right to pray privately, in ways that do not disrupt school activities. It is hard to see how performing religious music could be done privately and non-disruptively.

Neither students nor their parents have a right to insist that certain topics be included in the school curriculum. The students have a right to pray, but not to insist that the school organize prayers or include religious music in its music program.

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    And yet a third question: Does a public school have the authority to determine which songs can be performed at a public event organized by the school.
    – A. R.
    Nov 3, 2022 at 13:18
  • I think this answers the question, if it is a class and not an after school activity. I don't think this answer applies if it's a student group in an after school activity, though.
    – Joe
    Nov 3, 2022 at 23:16
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    @Joe The school still controls what after school activities it allows on its premises.. It could not prohibit religious music and permit secular music, I think, but it need not permit any music programs at all. And if the program is organized by the school, the school may choose the content. Of of schoo0l property is yet a different story, of .course. Nov 4, 2022 at 0:03
  • @DavidSiegel If it's an after school program, then Equal Access Act applies, certainly, if the school allows any similar activity (I don't think it would have to be musical specifically; if it allows after school programs in general, and this wasn't substantively different, it should apply). The wording of the question is confusing; what does "organized by the school" mean, for example. The school can dictate to a teacher their curriculum, but if "organized" is similar to our after-school activities (where the school just manages times and rooms) then it probably wouldn't fall on this answer.
    – Joe
    Nov 4, 2022 at 5:10
  • So would this mean the school could not even permit such a thing, i.e. does the answer to (2) completely close all ground opened by (1) and conversely, or is there a gap? Note it says the school may not encourage or mandate, but what about more voluntary actions? Nov 4, 2022 at 5:59
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There has not been a concrete SCOTUS ruling on this issue, but it is highly likely that SCOTUS would find such a restriction unconstitutional. Kennedy v. Bremerton School District was recently decided, which bears on this issue. The primary holding there was that

The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression

Kennedy, a high school football coach, was forbidden by the school district from praying on the field after football games (Kennedy was later joined by others in the practice). The school district's reasoning was that allowing Kennedy to pray would violate the Establishment Clause. The final paragraph of the court's opinion summarizes their interpretation of the relevant parts of the First Amendment:

Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.

Note that the action forbidden by the school was unquestionably a religious expression.

It is widely said that this ruling overturns Lemon v. Kurtzman, and while it is true that that ruling was denigrated and has fallen out of favor, it was not explicitly overturned. Lemon v. Kurtzman established criteria, known as the Lemon test, for deciding if a government action is allowed under the Establishment Clause, based on whether "it has a legitimate secular purpose, does not have the primary effect of either advancing or inhibiting religion, and does not result in an excessive entanglement of government and religion", i.e. seems to constitute endorsement of religion. The Kennedy court instead states that the Establishment Clause must be interpreted by "'reference to historical practices and understandings'".

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    Of course, once it became a thing where he invited student to join him and most/all did, it then stopped being a "personal private prayer" and started to be an "Implied coercive" action, considering that the coach's discretion governs things like playing time, which can govern being seen by scouts/getting a scholarship. See the dissent in that case, which the majority conveniently ignores
    – Alan
    Nov 3, 2022 at 7:50
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    @WernerCD Prior cases on this issue held that the plausible perception of coercion or indeed of undue influence caused by religious exercises being organized or promoted by a person or body in a position of authority was enough to violate the establishment clause, without any suggestion of improper motive or intent to coerce. That standard is what changed. Nov 3, 2022 at 12:46
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    @WernerCD The question is not whether not praying leads to not getting field time, it's whether students were justified in believing that not praying might lead to not getting field time (which is similar, but far from the same), or if there were other reasons (aside from religious conviction) that may have compelled them to partake. 3 Supreme Court justices felt that this was sufficiently demonstrated. You're welcome to argue elsewhere with said justices, but it seems relevant to point out that the decision was far from unanimous, and what the dissent was.
    – NotThatGuy
    Nov 3, 2022 at 13:20
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    @WernerCD - at my high school, if you weren't the same religion as our coach, you weren't going to get much playing time. It was well known by the students but we would probably have a hard time proving it in a court of law. Most didn't bother to try to be on the team. Nov 3, 2022 at 18:42
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    In days of yore I'd consider an answer like this fairly definitive. Unfortunately, the current SCOTUS has little respect for precedent, and I don't see that situation changing in the near future. So all you can really say with an answer like this is that Bremerton represents the law under this current court. What it may be in a year or two with a different court makeup, or even which direction in might change in, who can say?
    – T.E.D.
    Nov 3, 2022 at 18:45
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I believe that this falls under the heading of interpretations of the Equal Access Act, namely that "Student religious groups at Federally funded public secondary schools have the same right of access to school facilities as is enjoyed by other comparable student groups. Under the Equal Access Act, a public secondary school receiving Federal funds that creates a "limited open forum" may not refuse student religious groups access to that forum. A "limited open forum" exists "whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time."". A musical performance sponsored by the school sounds like a noncurriculum activity held on school premises during noninstructional time. Thus, banning religious songs would fall under a general suppression of religion rather than avoiding promoting a state religion.

There would, of course, be a caveat that the school should not selectively allow such songs based on dominant religion, and the school should not be able to mandate participation. As was noted in prior answers, "voluntary participation" in schools is seldom terribly voluntary. If your coach is leading a prayer and most of the team is joining in, you are likely to feel coerced to do so as well. And, arguably, if religious music is allowed, any religious music should be allowed, so a school that introduces the "Hallelujah Chorus" to their holiday program should be as open to allowing for Jacquie Godden's Kwanzaa songs to be performed (and yes, this opens us up to all sorts of murky ideas of "equal representation" leading to no one getting much of a slice of the pie, and whether "historically significant" music such as Mozart or Bach, often paired with the dominant culture/religion, could be argued to be more "appropriate" than Adam Sandler's "The Chanukah Song").

As a former Choir geek, I'd also say that a lot may depend on how much this falls under the auspices of a "curriculum". If this is a concert put on by the choir, the teacher has the right to make their curriculum, where I believe they could be under fire if their music was overly religious in a way objected to by the populace, but I don't believe they have any legal requirement to include religious music even if requested. If this is something more like a school talent show, where students submit acts, I believe that there is a much stronger case for the students to argue discrimination if any songs related to religion are banned, the same as if a school deemed that the talent show could have no jazz or hip-hop music because it has black influences.

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    – feetwet
    Nov 3, 2022 at 15:43

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