Constituntion Music Sacred

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Notes

THE CONSTITUTIONALITY OF TEACHING

AND PERFORMING SACRED CHORAL

MUSIC IN PUBLIC SCHOOLS

FAITH D . K A S P A R I A N

The imposition of religion on children in public schools is a

violation of the doctrine of separation of church and state. To

compel children in a public school to sing Christian devotional

music is tantamount to imposing religious practice on children. 1

Singing religious songs as a class assignment . . . is not a reli-

gious exercise to be equated with classroom prayers or B ible

readings. . . . Public schools are not required to delete from the

curriculum all material that may offend religious sensibility. If

someone will sound a n A, let us sing Amen! to that .2

IN TROD U CTION

The First Amendment to the Constitution states Congress

shall make no law respecting a n establishment of religion. 3 The

ult imate purpose of the Establishment Clause, and of the First

Amendment generally, is to protect the freedom of individualconscience, to guard and respect that sphere of inviolable con-

science a nd belief which is the mark of a free people. 4 Because

1. Amy R. Scheinerman, Religious M usic at School, WAS H . P OS T, Nov. 21, 1995, at

A16 (letter to editor).

2. James K ilpatrick, L et Choir Sing Am en! to Three Rays of Com m on Sense,

STATE J.-R E G . (Springfield, Ill.), Oct. 24, 1995, at M1 (quoting J . Thomas G reene, D is-

trict Judge, Utah).

3. U . S. CONST. amend. I .

4. Lee v. Weisman, 505 U.S. 577, 592, 605 (1992); see also Wallace v. Jaffree, 472

U.S. 38, 49 (1985) ( . . . the First Amendment was adopted to curtail the power of Con-

gress to interfere with the individuals freedom to believe, to worship, and to express

himself in accordance with the dictates of his own conscience.); School Dist. v. Schempp,374 U .S. 203, 226 (1963) (arguing that it is not within the power of government to in-

vade that . . . inviolable citadel of the individual heart and mind); Everson v. Board of

Educ., 330 U .S. 1, 814 (1947) (chronicling background and environment o f period in

which constitutional language wa s adopted and citing Ja mes Madisons argument in oppo-

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1112 D U K E L A W JO U R N A L [Vol. 46: 1111

public schools a re uniquely positioned to shape the development

of the individual conscience, Establishment Clause controversy

involving public schools has been especially contentious.5 The

arena of debate about what can take place in public schools has

been called the central battleground for Establishment Clause

conflict because the debate over what teachers can teach, w hat

books may be used, what songs sung . . . strikes at the heart of

many families sense of spiritual freedom. 6

As the opening quotations illustrate, there is considerable

debate as to whether the use of sacred choral music7 in public

schools violates the Establishment Clause. This debate revives the

historic conflict surrounding the relationship between music and

religion. The conflict is not new; the locale of the conflict hassimply changed from worship services to public schools. Through-

out history, religious leaders have questioned the appropriateness

of using sacred music in worship services. More recently, school

administrators have questioned the appropriateness of teaching and

performing sacred music in public schools.

Music is a powerful medium that has the capacity not only to

create and to express emotions, but a lso to evoke powerful re-

sponses from its audience.8 It is an art that reaches the emotions

sition to Virginias tax levy for the establishment of a state church: the best interest of

a society required that the minds of men always be wholly free) ; Laura Underkuffler-

Freund, The Separation of the Religious and the Secular: A Foundational Challenge toFirst A mendment T heory, 3 6 WM. & MAR Y L . R E V. 837, 95859 (1995) ( The prot ection

of freedom of conscience lay at the base of two great and emerging principles: free exer-

c ise o f r el ig io n a n d t h e d est ru ct io n o f r el ig io u s e st a b li sh me nt b y g o ve rn me nt . . . .

[R]eligious establishments by government were seen as potentially corrupting . . . to

individuals, who would be forced to act in ways contrary to the dictates of conscience in

order to obtain public power or benefits. . . . ) ; id . at 961 ( [T]he protection of con-

science wa s imperative.); id . at 891 (Of all the fundamental rights heralded during the

Founding Era, calls for freedom of conscience were the most insistent and the most

intense. ).

5. See, e.g., E dwa rds v. Aguillard, 482 U .S. 578, 58384 (1987) (recognizing Co urts

vigilance in monitoring compliance w ith Establishment C lause particularly in elementary

and secondary schools given impressionability of students and that attendance is involun-

tary).

6. Nancy G ibbs, Americas Holy War, TIM E , D ec. 9, 1991, at 61, 65.

7. Sacred is a musical term of art that refers to music with religious content , asopposed to secular music, which has no religious content.

8. See A R N O L D P E R R I S, MU S IC A S P R O P A G A N D A 138 (1985). Even the Supreme

Court has commented on the power of music:

Music is one of the oldest forms of human expression. From Platos discoursein the Republic to the totalitarian state in our own times, rulers have known itsc a pa ci ty t o a p pe a l t o t h e i nt el le ct a n d t o t h e e mo t io n s, a n d h a ve c en so r edmusical composit ions to serve the needs of the state. . . . The Constitut ion


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1997] T E A C H I N G SA C R E D C H O R A L M U SI C 1113

easily, often (always?) ahead of intellectual awa reness.

9

Accord-ingly, incorporating music into a ceremony, such as a worship

service or the inaugurat ion of a political leader, can make that

ceremony more evocative, more meaningful.10 For centuries, how-

ever, religious leaders have had conflicting views concerning the

use of sacred music within the worship service.11 This conflict

stems from the inherently dual nature of vocal music. Vocal music

can at once be a vehicle for the promotion of a textual message

and an independent aesthetic entity that in no way depends on the

performers or the listeners endorsement of the textual mes-

sage.12 Over fifteen centuries ago, St. Augustine recognized that

prohibits any like at tempts in our own legal order. Music, as a form of expres-sion and communication, is protected under the First A mendment.

Ward v. R ock A gainst R acism, 491 U .S. 781, 790 (1989).

9. P E R R I S, supra note 8, a t 6.

10.

Music began by serving communal purposes . . . . I t has continued to be usedas a n accompaniment to collective a ctivities; as an adjunct to social ceremoniesand public occasions. . . . I n our society, one cannot imagine a Coronation or aState funeral taking place in the absence of music. . . . Music has the effect ofintensifying or underlining the emotion which a particular event calls forth, bysimultaneously co-ordinating the emotions of a group of people.

A NTHONY STORR , MU S I C A N D TH E M IN D 2324 (1992).

11. See P E R R I S, supra note 8, at 155 (referring to conflict between religious leaders

and sacred music composers: [N]o other genre of Western [m]usic documents such a

long and strenuous contest between art is t a nd ruler for the at tention of their audi-ence.).

12. See MUSICA G E : C AG E MU S E S O N WO R D S A R T MU S I C 69 (Joan Retallack ed. ,

1996) [hereinafter MUSICA G E ] ([S]ound sometimes becomes so powerful that one can

put meaning aside. And vice versa .) ; STORR , supra note 10, at 75 ( Stravinsky strongly

objected to the notion that a piece of music is a transcendental idea expressed in terms

of music . . . . He said that A new piece of music is a new reality . . . music express-

es itself. . . [the composer] can say nothing w hatever about meanings.); J E AN -JA C Q U E S

NATTIEZ , MU S I C A N D D I S C O U R S E 126 (Ca rolyn A bbate trans., 1990) (For users of mu-

sic, composers, performers, and listeners, all participants in a total musical fact, musical

m a te ri a l w i ll e st a b li sh c on ne ct io n s t o t he ir l iv ed e xp er ie nc e a n d t o t he e xt er io r

world. . . . B ut musical materials play of forms is itself a semiological system, inasmuch

as it functions and develops independently of the extrinsic meanings conveyed . . . .).

I n discussing the dual nature of sacred music specifically, i t has been noted that

music originally written for worship service can become admired for its aesthetic identity

and devalued for its religious significance. See P E R R I S, supra note 8, at 148. The requiem

Masses of Mozart, Berlioz, and Faur were originally written for immediate liturgical

use but are today thought of as secular concert works and are so heard by the pub-

lic. I d. at 149; see also STORR , supra note 10, at 22:

To play the hymn Abide With Me a t football matches is in dubious taste; butthose who join in singing it feel an enhanced sense of joint participation, evenif they do not believe the words which they are s inging, or subscribe to theChristian beliefs which the hymn expresses. . . . Musics power to fan the flameo f p ie ty m a y b e m o re a p pa r en t t h an r ea l ; m o re c on ce rn ed w i th e nh a nc in g


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sacred music could be both secular and religious, and agonized

over that duality:

[S]ometimes I feel that I treat [sacred music] with more honor

than it deserves. I realize that when they are sung, these sacred

words stir my mind to greater religious fervor and kindle in me a

m o re a r de nt f la m e o f p ie ty t ha n t he y w o uld i f t he y w e re n ot

sung . . . . But I ought not to allow my mind to be paralyzed by

the gratification of my senses, which often leads it astray. . . . I

waver between the da nger that lies in gratifying the senses and

the benefits which, as I know from experience, can accrue from

singing. . . . I am inclined to approve of the custom of singing in

church, in order that by indulging the ears weaker spirits may be

inspired with feelings of devotion. Yet when I find the singing it-

self more moving than the truth which it conveys, I confess thatthis is a grievous sin . . . .13

Therefore, while religious leaders have recognized the unique

power of sacred music to instill religious passion, they have simul-

taneously feared that the secular and sensual pleasure of the music

will take precedence over the sacred text it conveys. 14 Simply put,

[t]he arts are a powerful but dangerous ally to religion: They can

carry the message, but they can also run away with it . 15

group feeling w ithin the congregation than with promoting the individuals rela-t ion with G od.

13. St. Augustine, The Testimony of St. A ugustine, in P I E R O WE ISS & R I C H A R D

TA R U S K I N , MU S I C I N TH E WE STE R N WO R L D 29, 32 (1984) (emphasis added). A modern

version of the debate between music and religion arose within the Emmanuel Church of

Boston, famous for its t radit ion of performing, as Bach had intended, a complete B ach

cantata as a part of the regular Sunday worship service. See Richard D yer, Emmanuel

Revives an A ncient Battle: M usic vs. Religion, B OSTON GL O B E , July 23, 1993, a t 39.

Emmanuel was recognized in the 1970s for being the only church other than Bachs own

church in Leipzig to have performed a complete cycle of Ba chs sacred cantatas. See id.

In 1993, E mmanuels music program found itself on the firing line of the immemorial

uneasy relat ionship between the arts and religion when crit ics a ccused the music pro-

gram of w orshipping Bach rather than G od. I d.

14. See P E R R I S, supra note 8, at 124:

Music in all wo rship is expected to heighten the desired emotional effect in thelistener, to emphasize the ritual text, especially certain significant w ords, and tofocus the worshippers a t tention on the rite. B ut the danger of so sensuous aphenomenon as music is that it may be more seductive than the rite itself , andthat the musicians may evoke more interest than the priests. If the music in theworship service is entertaining, is the religious ambience destroyed? . . . I nany one culture are there two kinds of musical expression, one identif ied assacred, and the other as nonsacred and appropriate only for secular occasions?

15. D y e r , supra note 13, at 39.


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The tension between music and religion raises important ques-tions. Is a song with a sacred text only a vehicle for religious wor-

ship a nd divine praise, or an independent secular aesthetic entity

as well? Once a sacred text is set to music in the form of a song,

can either element of the songtext or musicbe isolated or

viewed as more powerful than the other? Can one sing a sacred

song, recognizing the important aesthetic relationship between

music and text, without engaging in a religious exercise? These

questions remain when the locale of the tension shifts from wor-

ship service to public schools. In the public school context, howev-

er, the fear is not that the secular pleasure of the music will take

precedence over the sacred text, but rather that the sacred text

will take precedence over the music, with unconstitutional E stab-lishment Clause ramifications.16

D iscerning the Establishment Clause ramifications of using

sacred choral music in public schools is difficult because the Su-

preme Court has never addressed the issue17 and because, as

courts and commentators have noted, the body of Establishment

Clause precedent is confusing at best.18 Nevertheless, the Courts

16. Although there are also ramifications to the use of sacred choral music in public

schools under the Free Exercise Clause, this Note will not address the Free Exercise

Clause and will focus solely on the E stablishment C lause.

17. See, e.g., Bauchman v. West High Sch., 900 F. Supp. 248, 253 (D. Utah 1995)(Neither the Supreme Court nor the Tenth Circuit have had occasion to determine

whether choral singing a t a graduation exercise constitutes a prayer which wo uld impli-

cate the First Amendment E stablishment C lause.).

While some lower courts have confronted the Establishment Clause ramifications of

teaching sacred choral music in public schools, see infra Sect ion I I .B, their analysis of

issues has often been perfunctory and has not been helpful in providing guidance to local

decisionmakers. See infra notes 25260 and accompanying text (discussing D oe v.

D uncanville I ndep. Sch. D ist . , 70 F.3d 402, 40407 (5th Cir. 1995) (accepting choir

directors unrelated justification for maintaining sacred piece as choirs theme song and

not addressing certain factschoirs s inging of song at end of class on Fridays and on

bus rides after competitionthat may alter the blanket statement that [a]ll parties recog-

nize that the E stablishment Clause does not prohibit D ISD choirs from singing religious

songs as part of a secular music program, in accord with School D istrict of A bington

Township v. Schempp.) (citations omitted)); see also Robert M. O Neil, Who Says Y ou

Cant Pray?, 3 VA . J . SO C . P O L Y & L . 347, 362 (1996) (arguing that the issue of reli-

gious music and school choirs . . . deserves closer scrutiny than the Duncanville Court

provided . . . . ) .

18. This confusion stems from seemingly inconsistent decisions, see infra note 192 and

accompanying text, a nd from varying analytical approaches, see infra Section II.A. See

also Edwards v. Aguillard, 482 U.S. 578, 639 (1987) (Scalia, J., dissenting) (chastising the

Courts embarrassing Establishment C lause jurisprudence ); D oe v. D uncanville Indep.

Sch. D ist., 70 F.3d 402, 405 (5th Cir. 1995) ([M]odern Establishment Clause jurispru-


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Establishment Clause precedent may still be instructive insofar as

it illustrates a distinction betw een constitutionally permissible a nd

impermissible public school activities. The Co urt has consistently

held state-directed19 religious exercises in the public schools,

such as state-directed prayer20 and state-directed devotional B ible

reading,21 to be unconstitut ional. On the other hand, the Court

has implied that state-directed study of religion or the B ible, as

part of a secular program of education, would be constitutional.22

S p e ci f i ca l l y , i n Sch o ol D i st r i ct o f A b i n gt on T o w n sh i p v .

Schempp,23 the C ourt indicated that teaching the B ible as litera-

ture w ould be constitutional.24 Presumably, if teaching the B ible

as literature would be constitutional, so too would teaching sacred

choral music, ostensibly the B ible as song. U nfortunately, theCourts dictum in Schempp is broadly phrased and does not pro-

vide specific guidance.25 Therefore, the difficulty lies in distin-

guishing a religious exercise from a secular study of religion.

dence is rife with confusion" ); D oe v. D uncanville I ndep. Sch. D ist., 994 F.2d 160, 166

n.7 (5th Cir. 1993) (noting the Supreme C ourts confusing a nd confused Establishment

Clause jurisprudence); ONeil, supra note 17, at 349 (The boundaries of permissible

act ivity under the Establishment Clause remain elusive in many important areas.) ;

U nderkuffler-Freund, supra note 4, a t 838 (describing Court s Free Exercise and Estab-

lishment C lause precedent as jurisprudence of complex, conflicting, and often undulating

principles ); id . at 848 (reiterating that Free Exercise and Establishment Clause precedent

is a body of jurisprudence of perhaps unparalleled contradict ion and confusion );Kilpatrick, supra note 2, a t M1 (I n the whole broad f ield of const itut ional law, no area

is murkier than the area surrounding the First Amendments Establishment Clause);

Opinion, Sound W est H igh Ruling, SAL T L AK E TR IB . , J une 6, 1996, at A12 (referring to

constitutional thicket).

19. By the term state-directed, this Note refers to an act ivity that is led or direct-

ed through state action. A stated-directed activity could involve a public school teacher,

administrator, or policy.

20. See Engel v. Vitale, 370 U .S. 421, 424 (1962).

21. See School D ist. v. Schempp, 374 U .S. 203, 205 (1963).

22. See id. a t 225 ( Nothing we have said here indicates that such study . . . may

not be effected consistently with the First Amendment.).

23. 374 U .S. 203 (1963).

24. The Schempp Court explained:

I t c er t ai nl y m a y b e sa id t ha t t he B i b le i s w o r th y o f st ud y f o r i ts l it er a ry a n dhistoric qualit ies . Nothing we have said here indicates that such study of theB ible or of religion, when presented objectively as part of a secular program ofeducation, may not be effected consistently with the First Amendment.

I d. at 225. The Schempp Court distinguished studying the Bible as literature or history

from the state-directed, devotional Bible reading found unconstitutional in the case, hold-

ing that the latter devotional use as a religious exercise. I d. ([T]he exercises here do

not fall into those categories. They a re religious exercises . . . .).

25. See id.


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Lack of clear legal standards has resulted in widespread publicconfusion over what constitutes a constitutional use of material

with religious content in the public schools. Such confusion threat-

ens the use of sacred choral music in the public schools because it

has the potential to create, and in some cases has a lready created,

a chilling effect on the use of all religious materials for teaching

purposes. This chilling effect is dangerous because music education,

particularly performance-based education, is a necessary compo-

nent of the public school curriculum, and sacred choral music is an

integral part of a complete and historically accurate music edu-

cation.26 R emoval of sacred music from the performance reper-

toire would deprive students of a complete educational experience

by presenting an erroneous view of the Western music tradition.This Note confronts the Establishment Clause issues involved

in using sacred choral music in the public schoolsand hence con-

fronts the questions inherent in the dual nature of vocal musicby

analyzing three hypothetical fact patterns.27 In analyzing similar

Establishment Clause fact patterns, the Supreme Court has focused

on two factorsthe purpose and the effect of the use. H owever,

analysis of the hypotheticals in this Note reveals that the most

instructive factor in resolving these Establishment Clause questions

is not the purposenot the subjective motivation of the individual

who selects the sacred repertoirebut rather, the effect of using

the music. Further, in determining that effect, the Court has fo-

cused on the context of the use. In analyzing the teaching andperforming of sacred choral music, the following factors will likely

contribute to a courts analysis of context: the teaching style of the

choir director, including statements made during rehearsal; the site

and time of year of a concert; the placement of particular selec-

tions within the order of the program; the presence of program

notes28 explaining the musical significance of works performed;

and the nature of performative artificethe extent to which the

performance underscores the nature o f the music as independent

aesthetic entity.29

26. See infra P a r t I .

27. These hypotheticals are partia lly modeled on aspects of lower court cases ad-

dressing the constitutionality of teaching and performing sacred choral music in public

schools. See infra P a r t I I I .

28. Program notes is a musical term of art that refers to a prose descript ion in the

concert program of the musical significance and relevant musical features of a particular

work.

29. Context is crucial, not only from a legal perspective, but a lso from a musical


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With this analytical framework in mind, this Note argues that,

in true teaching or performance contexts, the use of sacred choral

music in public schools is not only educationally necessary but

constitutionally permissible. Part I of this Note illustrates the wide-

spread public confusion over what is permissible activity in the

public schools, depicts the chilling effect that results from such

confusion, and explains the danger of such a chilling effect by

articulating pedagogical justifications for teaching and performing

sacred choral music in public schools. Part II of this Note discusses

relevant Establishment Clause precedent a nd proposes an analyti-

cal framework for evaluating the Establishment Clause ramifica-

tions of teaching and performing sacred choral music in the public

schools. U sing this framework, as well as Supreme Court andlower court precedent, Part III considers, through three hypotheti-

cal fact patterns, the constitutionality of using sacred choral music

in varying public school contexts.

I . TH E P OTENTIAL E LIM IN A TION OF SA C R E D C H O R A L MU S I C

F R O M P U B L I C SC H O O L S

Since the Supreme C ourt has made no definitive legal state-

ment, sacred choral music may be unnecessarily eliminated from

public school curricula as a result of general public confusion over

what uses of materials with religious content are permissible in the

nations public schools.30 Throughout the country, surprising anec-

perspective. A musical work is not created merely by the composers writing of the music

and setting of that music to text; rather, the performers interpretation a nd the listeners

perception contribute to the creation and meaning of the musical work. A ccordingly, the

context of a particular performance, including the performers interpretation of the music,

i s a s m uc h a n a sp ec t o f t he a e st he ti c e n t it y a s t he m usi c w r i tt e n i n t h e sc or e. See

NATTIEZ , supra note 12, at ix-x, 72 (endorsing holistic vision of music, called musical

semiology, s ta t ing that a musical work is a lso const ituted by the procedures that have

engendered it (acts of composit ion), and the procedures to which it gives rise: acts of

interpretation and perception and positing that a musical work is not wholly produced

unless i t has been played and that the composit ional process extends until the perfor-

mance is complete). Composer and aesthetic philosopher John Cage embraces this con-

cept of meaning-as-use and argues that the listener then contributes by enact ing the

meaning through its use. See MUSICA G E , supra note 12, a t 67. Cage explains, I m fre-

quently now in the situation of having to lis ten to music which I ve a lready writ ten,

w h ic h i s f in ish ed a s f a r a s I m c on ce rn ed . B u t w h en I h a ve n t m a de i t c le a r i n m a n y

w a y s w h a t i t i s, i t b e co m es o f c ou rse t he w a y t ha t i t i s m a d e b y o t he r p e o pl e. . . . I

dont know a nything to expect in relation to it . . . . I d. at 200. Arguably, a composer

can never make clear what an aesthetic entity is, especially an aesthetic such as vocal

music w hich hasat leasta dual identity.

30. For example, in a D ecember 1994 CB S News/New Y ork Times poll, the majority


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dotes are plentiful. A Maryland school teacher told a kindergartenstudent that she could not sing a verse of a religious song to her

classmates, even though the teacher had asked each child to share

a favorite song with the class.31 And an Illinois school teacher,

upon finding the w ord G od in a phonics textbook, instructed her

class of seven-year-olds to cross it out, explaining that it is illegal

to mention G od in a public school.32

Recognition of the problem posed by this confusion has come

from many sources. A survey of the Music Educators Journal, a

publication of the Music Educators National Conference (MENC),

reveals numerous articles from the 1960s to the present that recog-

nize the confusion over what is permissible and support the use of

sacred music in public schools.33

G overnment officials, includingU nited States Secretary of Education R ichard W. R iley,34 Acting

Solicitor G eneral Walter D ellinger,35 and August Steinhilber,36

of all Americans55%did not know that a childs right to pray privately in school is

constitutionally protected. See S tatement by U .S. Secretary of Education Richard W. Riley

regarding Religion in P ublic Schools: A Joint Statement of Current Law, April 13,

1995; see also A M E R I C A N C IVIL L I B E R T I E S U NIO N, R E L I G I O N I N TH E P U B L I C SC H O O L S :

A J O INT STA TE ME NT O F C U R R E N T L AW 1 ( 1995) ( S o me sa y . . . t ha t t he l a w i s s o

murky that school officials cannot know what is legally permissible. ).

31. See Press Briefing, Statement by Secretary of Education Richard W. Riley, July

12, 1995 [hereinafter R iley P ress B riefing].

32. SeeG ibbs, supra note 6, at 61.33. See M E N C , Religious M usic in the Schools, MU S I C E D U C A TO R S J. , July 1996, at

insert (The First A mendment does not forbid a ll mention of religion in the public

sc ho o ls . . . . ) ; M E N C , Religious M usic in the Schools, MU S I C E D U C A TO R S J . , N o v.

1984, at 28; Reb ecca G rier, Sacred M usic in the Schools: A n Update, MU S I C E D U C A T O R S

J . , N o v. 1979, a t 48; J o h n A q u in o , Can W e St i l l Sing Christm as Carols in Publ ic

Schools?, MU S I C E D U C A TO R S J. , Nov. 1976, at 71; D onald Meints, Are W e Violat ing the

Constitution?, MU S I C E D U C A TO R S J . , Jan. 1965, a t 62 ( I n the light of recent decisions

b y t he U n i te d S ta t es S up re me C o u rt , so m e c ho r a l m usi c d ir ec to r s i n h ig h sc ho o ls

throughout the country are confused about the place of sacred choral music in the public

school music program.); Charles M. Fisher, The Place of Religious M usic in the School

Curriculum, MU S I C E D U C A TO R S J . , Nov. 1966, a t 66 (noting that even much secular

music is religious in the broad sense of the word and that such music should not be

excluded from public school curriculums); Benjamin J. Novak, B uilding Ties Between

School and Church M usic, MU S I C E D U C A TO R S J. , Sept.-Oct. 1963, at 119 (It is difficult

to argue validly against the inclusion of some church music a s part of a balanced musical

repertoire for all schools.).

34. See Riley P ress B riefing, supra note 31 ([T]heres an awful lot of confusion out

there. And I see it and hear it . ) .

35. See L aurie G oodstein, School Prayer D irective M ay Not Settle A ll Cases; M any

Religious D isputes Fall in Gray Z one, WAS H . P OS T, July 15, 1995, at A1 (quoting Acting

Solicitor G eneral D ellingers statement that the president believes it is important that we

reduce the amount of confusion and misinformation that currently surrounds the sub-


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general counsel for the National School Boards Association, have

also acknowledged confusion over the relationship between religion

and public schools. And at least one legal commentator, recogniz-

ing the confusion, has opposed the use of sacred choral music in

public schools, proposing guidelines for religious holiday obser-

vances in public schools that would eliminate sacred music from

such programs.37

Recently, the President and numerous legal organizations have

attempted to dispel the myths and to alleviate the confusion by

issuing statements concerning religion and the public schools.38

Perhaps the most wide-reaching w as a four-page directive issued,

at the instruction of the P resident, by the U nited States D epart-

ment of Education.

39

In August of 1995, Secretary Riley sent thisdirective to the superintendents of every school district in the

U nited States.40 The directive summarizes the Schempp Courts

implication that state-directed study of religion, a s part of a secu-

lar program of education, is constitutional and supports, in general

terms, the use of sacred choral music in public school curricula:

Public schools may not provide religious instruction, but they

may teach about religion, including the Bible or other scripture:

the history of religion, comparative religion, the B ible (or other

ject ).

36. In 1995, the Washington P ost q uoted Steinhilbers complaint that: There was a

t im e w h en m o st o f t h e q u e st io n s I g o t w e re o n [A I D S ] i ssu es. . . . Th en i t m o ve d t o

drugs and drug testing, then sexual harassment. Now, number one is religion. I d.

37. Th is c om me nt a t or h a s a r g ue d, M o s t h ym ns a n d m a ny c a ro ls a r e p ra y er s o r

other expressions of worship set to music. Note, Religious-H oliday Observances in the

Public Schools, 48 N.Y .U . L . R E V. 1116, 1144 n.174 (1973). The proposed guidelines

state:

The content of any such programs must relate only to the secular a spect of theh o li da y . . . . se a so n a l so n gs su ch a s E a st er P a r a de , O v er t h e R i v er a n dThrough the Woods, D eck the H alls , White Christmas, etc. , may be per-formed. . . . H ymns, songs, carols . . . expressing reverence to G od, J esus, B ud-dha, Mohammed or any other religious prophet or leader, may not be preparedor performed as part of a holiday observance. . . . The atmosphere and trap-pings must be free from any element of devotional setting. Processionals, cleri-cal robes, candles or other church-like or reverential lighting effects, scenery o rcostumes may not be used.

I d. at 1144 (footnotes omitted).

38. See, e.g., Remarks by the P resident on Religious Liberty in A merica, July 12,

1995, at James Madison H igh School, Vienna, Va. [hereinafter C linton Religious Liberty

Remarks]; TH E FR E E D O M FO R U M FIR ST A M E N D M E N T C ENTER , A P A R E N TS GU I D E TO

R E L I G I O N I N TH E P U B L I C SC H O O L S (1995) [hereinafter P A R E N TS GU I D E TO R E LIG IO N];

A C L U , supra note 30.

39. See D epartment of Education D irective, Aug. 10, 1995.

40. See Cover letter included with Department of Education Directive, Aug. 10, 1995.


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scripture)-as-literature, a nd the role of religion in the history ofthe U nited States a nd other countries all are permissible public

school subjects. Similarly, it is permissible to consider religious

influences on art, music, literature, and social studies.41

The statements of other organizations similarly support teaching

and performing sacred music in public school curricula as part of

an objective program of secular education.42 Although some offi-

cials feel that the D epartment of Education directive has solved

the confusion,43 controversies and litigation have unfortunately

continued. 44 As D ellinger explains, despite Presidential efforts,

41. D epartment of Education D irective, Aug. 10, 1995.42. See, e.g., Clinton Religious Liberty Remarks, supra note 38, at 78:

The First Amendment does notI will say a gaindoes not convert o ur schoolsinto religion-free zones. . . . Some school o fficials and teachers and parents be-lieve that the Constitut ion forbids any religious expression at a ll in publicschools . That is wrong. Our courts have made it clear that that is wrong. . . .Teachers can and certainly should teach a bout religion a nd the contributions ithas made to our history, our values, our knowledge, to our music and our arti n o u r c o u n t r y a n d a r o u n d t h e w o r l d . . . .

See also P A R E N TS GU I D E TO R E LIG IO N, supra note 38, at 7:

Sacred music may be sung or played a s part of a schools academic program.School concerts that present a variety of selections may include religious music.The use of music, art, drama, or literature w ith religious themes is permissibleif i t serves a sound educational goal in the curriculum, but not if used as avehicle fo r promoting religious belief.

See also R U T H E R F O R D I NST., R E C O G N I TI O N O F R E L I G I O U S H O LI D AY S I N P U B L I C

SC H O O L S 2 (1993).

43. See Tamara Henry, Religions Place in Public Schools: H olidays Bri ng I ssue to the

Fore, U SA TO D A Y , D ec. 7, 1995, at 5D (A ugust Steinhilber vigorously disagrees that

wide confusion still exists. As general counsel for the National School Boards Associa-

t ion, he says tradit ionally his off ice is f looded with calls beginning with Halloween

through Christmas. So far, I dont think I ve gotten two calls, he says. ) . This same

article notes a recent anecdote involving an art teacher in Alto, Tex. The teacher fumed

when a seventh-grade student drew a picture of Santa a nd Jesus, and upon tearing up

the sketches told the student , Y ou have a problem! I d.

44. A post-directive letter to the editor of the St. Petersburg Ti mesdemonstrates the

continued controversy:

I strongly object to the Ma rch 26 letter that so unfairly criticized the northwestElementary music director for including two religious songs during a districtconcert recently. For the o bjectors information, the Religious Freedom R estora-t ion Act wa s s igned into law over two years ago by P resident C linton, and theobject ionable songs would certainly come within the incidental effect of the

RFR A. To charge the music director with a f lagrant a t tempt to religiouslyindoctrinate and abuse his posit ion to f lout the establishment clause of theFirst Amendment is both obnoxious and idiotic.

U r b a n M e ye r, L e t te r t o E d i to r , Crit ic of School Concert Was Uninformed, Rude Series,

ST. P E TE R S B U R G TI M E S (Fla.), Apr. 1, 1996, at A1. See also supra notes 1-2 a nd accom-

panying text (demonstrating post-directive debate); P riscilla H. Crago, Religious Songs Ar e

Prayers Set to M usic, TI M E S U NIO N (Albany, N.Y.), Nov. 16, 1995, at A14 (quoting Al-

bany, N.Y ., parent who asserts : [R]eligious songs are merely organized prayers set to


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[t]here will always, in an area like this, be cases in the margin

where controversy will continue. 45 Co ntinued controversy stems

from the highly sensitive and personal nature of the issue, from

the Courts silence on the constitutionality of using sacred choral

music in public schools, and from general confusion in E stablish-

ment Clause precedent.

With the lack of a direct statement from the Supreme C ourt,

continuing confusion and controversy have the potential to create,

and in some cases have already created, a chilling effect on the

use of sacred choral music in public schools. Music educators re-

ceive pressure from parents and administrators to eliminate sacred

music from the curriculum. One retired elementary music adminis-

trator has aptly described the situation:Music teachers have enough pressures today without the repeated

beating over what religious music is or isnt safe to program for

specific school holiday observations, for regular curriculum use,

or for artistic and historical use. . . . Each holiday brings its own

perky patrons peeking around the back side of the practice piano

to see if w e are about to program too much/little to satisfy indi-

vidual and varied expectations of how they want each holiday

h on or ed /ign or ed . Ad d t o t his g ro up t he w o rd w a rr io rs w h o

pounce on the phone to scorch our inner ear when they discover

that the song we taught yesterday had the word spirit in i t . . . .

In many areas, religious music used in the schools, absent from

clearly understood court-case related policy outlining its appropri-

ate and acceptable use, is a gigantic kettle of boiling water in

search of a scaldee. . . . Now where were we? Oh yes, teaching

children music.46

music. Not only has the Supreme Court banned prayers in public schools, but the Bill of

Rights does not allow establishment of a particular religion.); G oodstein, supra note 35,

at A6 (quoting an at torney who defends the rights of s tudents to present the full musi-

cal repertoire who stated, Whoever heard of a choir that cant s ing anything from the

Renaissance, most things from the Baroque period, or for that matter, even The B att le

H y m n o f t he R e p ub li c ? . . . I t s b e yo n d d isp ut e t ha t m uc h o f t h e a r t t ha t sh o ul d b e

t a ug ht i n sc ho o ls o r ig in a te s w i th o n e g re a t r el ig io u s t ra d it io n o r a n o th er . . . . ) ;

Ba uchman v. West High Sch., Civ. No. 95-C506G , 1996 WL 407856, at *10 (D. U tah

May 30, 1996) (denying Bauchmans motion to amend her Establishment Cause claim that

was dismissed in Bauchman v. W est H igh School, 900 F. Supp. 254 (D. Utah 1995)).

45. G oodstein, supra note 35, at A1.

46. Charles R eynolds, Sacred M usic: How to Avoid Cooking Y our Hol iday Goose,

MU S I C E D U C A TO R S J., Nov. 1984, at 3133.


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A former choir director, who incorporated sacred choral pieces inher choirs repertoire, explained that at times she received pressure

from school administrators to eliminate sacred music from the

curriculum even though she never discussed religion or theology.47

Not surprisingly, confusion, controversy, and public pressure

have led educators and school boards to self-censorship. A school

district music coordinator in P alo Alto has explained: We have to

b e ve ry , v er y ca r ef ul . . . . We ca n pla y se a so na l m usic, like

Sleigh R ide, but only songs that in no way mention G od or Je-

sus. 48 A t le a st o ne sch oo l b o a rd h as e na ct ed g uid elin es t ha t

highly restrict the use of sacred choral music. In response to com-

plaints by parents about a D ecember music program, the Los

Altos, California school district drafted a policy restricting thepublic performance of vocal music in holiday programs.49 A draft

of the policy stated: U nder no circumstances may educators as-

sign or recruit students to sing songs or parts of songs that are not

neutral among all religious beliefs (including polytheistic, monothe-

istic, non-theistic or atheistic religious beliefs). 50 Less restrictive

but vaguely worded guidelines may similarly result in the elimi-

nation of sacred music fro m public school music curricula because

of the difficulty in determining boundaries.51

This chilling effect is dangerous. The importance of music

education, particularly performance-based education, in public

schools rests on varied and expansive justifications. Aristotle ar-

gued: Clearly a ctual participation in performing is going to makea b ig d if fe re nce t o t he q u a lit y o f t he pe rso n t ha t w ill b e pr o-

duced . . . . musical education must include actual performing. 52

Echoing this statement, modern theorists have a rgued that: Of

singular importance is the development of the attitude that partici-

47. See Telephone I nterview with Shirley Laman, retired public school director of

choral a ctivities in Belmont, Massachusetts (Oct. 11, 1996) ( I wasnt teaching religion. I

was teaching music.).

48. John Wildermuth, A L itt le Discord Over School M usic: Wringing the Religion out

of Winter Concerts Isnt A s Easy A s It Sounds, S .F. C H R O N. , M ar. 10, 1995, at P1.

49. See id.

50. I d.

51. See A L B E R T J . ME N E N D E Z , TH E D E C E M B E R WAR S 8990 (1993) (citing less r e-

strictive policies, including a 1974 I thaca, N.Y., policy a llowing religious music as part of

secular program or concert provided it is presented in other than a religious con-

text).

52. Aristotle, A ristotle O n the Purposes of M usic, in WE ISS & TA R U S K I N, supra note

13, at 11.


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pation in a ctual performance produces a better grasp of the a es-

thetic import of great music than mere listening or nonparticipa-

tion. 53 E ducation research a lso reveals the important social func-

tion served by music education, demonstrating that, by providing

o pp or t un it ie s t o w o r k i n g ro up se t tin gs, m usic p er fo r ma n ce

strengthens the students ability to relate and work with others in

pursuit of a common goal.54 Musical knowledge has been found

to have intrinsic worth as a language, as a dist inct ive way of

knowing, 55 and as an integral part of human civilization.56 From

a functional standpoint as well, study of the arts, including music,

has been shown to enhance students academic success in other

areas, as shown by higher standardized test performance and high-

er grades in non-arts classes.

57

Performance training also instillsdiscipline and higher quality expectations; students learn the ne-

cessity of striving for perfection through exposure to the principle

that, while a 90 percent correct performance on a math test is a n

A . . . a 90 percent correct performance on stage is a disaster. 58

As the MENC has explained, to provide students with a com-

plete music education, it is essential that the curriculum include

53. Abraham Schwadron, O n Religion, M usic, and Education, J . R E S. MU S I C E D U C .,

at 157, 165 (1970).

54. See Estelle R. Jorgensen, Justifying M usic I nstruction in A merican Publi c Schools:

A H istorical Perspective, A R TS E D U C . P OL Y R E V., J uly-Aug. 1995, a t 31, 32 ( Co mmonly

undertaken in group settings, [music] affords opportunities for individual students to re-

late with others in the context of creat ing, performing, and lis tening to music. I t a lso

constitutes an agent for mental and personal growth. ).

55. I d. at 33.

[Music] constitutes an expression of human experience that is irreplaceable byany other means, it ma kes a unique contribution to human existence, it consti-tutes a language or a symbol system that is dist inct ively musical and un-abashedly non-scientific, and it is known holistically a nd immediately in waysthat primarily implicate the imagination and intuition. To take music out of theschool curriculum . . . would result in impoverishing the curriculum by deletinga dist inct ive wa y of knowing and a vita l part of human civilizat ion and knowl-edge.

I d. (referring to works by Philip Phenix, Nelson G oodman, and How ard G ardner).

56. See id.

57. See Scott C. Shuler, Why H igh School Students Should Study the A rts, MU S I C

E D U C A TO R S J. , July 1996, at 2223 (citing The College B oard, 1987 Profile of SAT and

A chievement Test T akers, C . E NTRANCE E XA MINA TIO N B O A R D , 1, 1, 3 (1987); The Col-

lege Board, 1988 Profil e of SA T and A chievement Test T akers, C . E NTRANCE E XA MINA -

TION B O A R D , 1, 1, 3 (1988); The College B oard, 1989 Profile of SA T and Achievement

Test T akers, C . E NTRANCE E XA MINA TIO N B O A R D , 1, 1, 3 (1989); D aniel Steinel, Grades

of High School Arts Students Com pare Favorably with Other Students, 2 ME NC

SO U N D P O S T no. 2, Winter 1986, at 14).

58. I d. at 23.


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music of all styles, forms, periods, and cultures.

59

It might wellbe impossible to understand the history of Western music w ithout

[exposure to choral music, including] G regorian chant, polyphony,

the musical settings of the Mass, and the oratorio literature. 60

Due to the fact that the Church historically patronized the arts, by

employing musicians to compose, play, and sing music for worship

services,61 sacred choral music comprises a substantial portion of

the choral music repertoire.62 B ecause sacred choral music consti-

tutes a substantial portion of music literature, it plays an important

role in the history of music and should and does have an impor-

tant place in music education. 63 A n d, a s t he M E N C s m ost r e-

cent position statement on this issue explains, the study and per-

formance of sacred choral music is not only an important, but anecessary part of the curriculum.64

59. MENC, P osit ion Statement, Religious M usic in the Schools, in MU S I C E D U C A T O R S

J., Nov. 1984, at 28 [hereinafter M ENC 1984 P osition Statement].

60. Albert J . Menendez, Christmas in the Schools: Can Conflicts be A voided, P H I

D ELTA K A P P A N, Nov. 1994, at 239, 241.

61. For example, the career of Johann Sebast ian Bach was similar to that of many

successful musical functionaries of his t ime in Lutheran G ermany, in that Bach main-

tained religious employment as organist and music director in several churches, as organ-

i st a n d c on ce rt m ast er i n t h e c ha p el o f t he d uk e o f We im a r, a n d c an t or o f t he S t.

Thomas school. D O NA LD J AY GR O U T & C L A U D E V. P A LISCA , A H I S TO R Y O F WESTERN

MU S I C 49798 (4th ed. 1988). In fact, music historians have noted the importance of the

Church in the development of Western music by stating that the Church was the chrys-alis out of which our Western society emerged. I d. a t 35. For example, one germ of

creat ive power in the realm of music w as embodied in the G regorian Chant . I d at

49798.

62. See Doe v. D uncanville I ndep. Sch. D ist., 70 F.3d 402, 407 (5th C ir. 1995) (ac-

cepting a music teachers est imation that 6075% of serious choral music is based on

sacred themes or text and acknowledging the dominance of religious music in this

field ); B auchman v. West High Sch., 900 F. Supp. 254, 268 (D . U tah 1995) (noting that

choral music often contains religious sentiment); see also Menendez, supra note 60, a t

241 (One can argueas many havethat the best music, from the purely cultural

perspective, is religious in nature. Indeed, no one would deny that many anthems, carols,

and hymns, from V ivaldis G loria to Monteverdis Christmas V espers, are musically

superior to Rudolph the R ed-Nosed Reindeer or Frosty the Snowman. ) ; ME NC, Posi-

tion Statement, Religious M usic in the Schools, MU S I C E D U C A TO R S J., Nov. 1996, insert,

at 2 [hereinafter ME NC 1996 Position Statement] (The chorales of J.S. B ach, the H alle-

lujah Chorus from G eorge Frideric H andels M essiah, spirituals, a nd Ernest B lochs Sa-

cred Servi ce all have an important place in the development of a students musical under-

standing and knowledge.).

63. MENC 1984 Position Statement, supra note 59, at 29.

64. For more than a decade, the MENC has repeatedly issued posit ion statements

endorsing the use of sacred music in public schools. Its most recent position statement,

adopted in November of 1996, asserts : I t is the posit ion of Music E ducators National

Conference that the study and performance of religious music within an educational con-


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Although music with a sacred text may have originally been

intended to be a vehicle for religious worship and divine praise, it

also has an independent secular aesthetic identity because of its

significance as music. This is not to say that sacred music has lost

all religious significance. Certainly, sacred music may continue to

be perceived, by some listeners in some contexts, solely a s a vehi-

cle for religious worship and divine praise. However, sacred music

may also be perceivedat its inception a nd beyondas both a

vehicle for religious wo rship and a secular aesthetic entity that in

no way depends on the performers or the listeners endorsement

of the textual message. It is because of this duality, because sacred

music does have an independent aesthetic identity and significance

within Western music history, that such music is an integral com-ponent of a comprehensive music education.

G iven the prevalence a nd importance of sacred choral music

within Western music literature, allowing sacred choral music to be

chilled out of the curriculum through misguided Establishment

Clause interpretation would reduce the quality of music education

in public schools. I t has been argued that [o]nly barbarians 65

would remove sacred choral music from public schools a nd that

such removal would disadvantage students by depriving them of

some of the best music in the genre.66 Furthermore, omitting sa-

text is a vital and appropriate part of a comprehensive music education. The omission of

sacred music from the school curriculum would result in an incomplete educational expe-

rience. ME NC 1996 P osition Statement, supra note 62, at 2. E arlier position statements

were nearly identical:

I t is the posit ion of Music E ducators National Conference that the study ofreligious music is a vital and appropriate part of the tota l music experience inboth performance and lis tening. To omit sacred music from the repertoire orstudy of music would present an incorrect and incomplete concept of the com-prehensive nature of the art.

MENC 1984 Position Statement, supra note 59, at 29.

65. D o n n a M . C h a ve z, Christmas at School: The Goal is to Offend No One: Even the

Classroom L eaders D ont A gree on Whats A ppropriate, C H I . TR IB . , D ec. 12, 1993, 18,

at 3 (quoting Mart in Marty, Professor of History of American Religion at the University

of Chicago).

66.

Musically speaking, the body of religious . . . music is vast ly superior to thesecular music . . . For school choirs , public performance is as important tolearning as is what goes on in the classroom. A high school choral group . . .denied . . . Sixteenth Century polyphonic works of V ictoria and Palestrina,Bach and Handel choruses, modern opera classics like G ian Carlo Menott i sA mahl and the Night Visitors, and imaginative arrangements of black spiritualsis being shortchanged musically. In many centuries the greatest music has beenthe music of the church . . . .


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cred choral music from the curriculum would not only reduce thequality of music education, but would actually present a fa lse

music education. Ignoring the prevalence of sacred choral music

within the overall repertoire is, in a sense, to rewrite music histo-

ry. 67 As the MENC has explained, omitting sacred music from

the curriculum would result in an incomplete educational experi-

ence 68 and would present an incorrect and incomplete concept

of the comprehensive nature of the art. 69

G iven these pedagogical justifications for teaching and per-

forming sacred choral music in public schools, censoring sacred

choral music from curricula seems inconsistent with the principles

embodied in the First Amendment. The Supreme Court has re-

peatedly stressed the importance of the classroom as the quintes-sential marketplace of ideas 70 and the importance of exposing

our future leaders to that robust exchange of ideas which discov-

ers truth out of a multitude of tongues, [rather] than through any

kind of authoritative selection. 71 Music curricula contribute to

the creation of this educational marketplace of ideas by expand-

ing the knowledge a nd experience of students.72 But, in order to

achieve this goal of expanding knowledge and experience, music

educators must enjoy academic freedom. Educators must be free

to present a representative study of all musicof which sacred

choral music is an integral part.73 Music educators have made a

professional judgment that sacred music is a necessary component

of a complete and accurate music education. Eliminating sacredchoral music devalues and disregards this professional judgment,

thwarting the goal of expanding knowledge and thereby diminish-

ing the marketplace of classroom ideas.

Menendez, supra note 60, at 24142 (quoting J ean Caffey Lyles, o netime editor of Chris-

tian Century).

67. I d.



70. Keyishian v. B oard of Regents, 385 U .S. 589, 603 (1966).

71. I d. (alteration in original) (citations o mitted).


73. See id.


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I I . E STABLISHMENT C L A U S E P R E C E D E N T

A. E stabli shm ent C lause T ests

The archetypal interpretation of the E stablishment C lause is

that it was intended to erect a wall of separation between church

and State. 74 The Court has since reconsidered this concept of

complete separation, recognizing that a complete exclusion of

religion from all aspects of public life can sometimes conflict with

the Constitutions vow to guard religious liberty.75 Instead, the

Constitution prohibits those practices that create the dangers the

First Amendment was designed to preventthose practices which

involve the state in religious exercise.76

In attempting to distinguish those practices that create thedangers the First Amendment was designed to prevent from those

practices that do not, the Supreme Court has used a variety of

approaches. G iven the ambiguity in the text of the First Amend-

ment,77 a n d t he m yr ia d , sub tle w a y s in w h ich E s ta b lish me nt

Clause values can be eroded, 78 this variety is not surprising. In-

deed, there is no single test that the Court uniformly applies in all

Establishment Clause cases.79 R a t h er , a s J u st ice O C o nn or h a s

explained, different categories of cases may require different ap-

proaches.80

74. Everson v. B oard of Educ., 330 U.S. 1, 16 (1947) (internal q uotation marks omit-

ted).

75. See Lee v. Weisman, 505 U .S. 577, 598 (1992).

76. See id. (quoting School D ist. v. Schempp, 374 U .S. 203, 308 (1963) (G oldberg, J .,

concurring)).

77. See Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (noting that the language

o f . . . t he F ir st A m en d me nt i s a t b est o pa q u e ) ; WILLIA M W. VAN A LSTYNE , FIR ST

A M E N D M E N T C A S E S A N D MA TE R IA LS 855 (2d ed. 1995) (stating that [t]he phrasing o f

this part of the f irst amendment is somewhat awkward and ambiguous).

Commentator Leo Pfeffer has noted that the Court not only applies the rules but

interprets them, and since the rules basically consist of but sixteen words . . . the author-

ity is practically o pen-ended. L E O P FE FFE R , G O D , C A E SA R , A N D TH E C ONSTITUTION 25

(1975). G iven this open-ended authority, in interpreting the text the Court seems more to

be making the rules than interpreting them. See id. at 30. P feffer has acknowledged the

difficulty o f the Courts position in light of the cryptic incisiveness of the text and the

ever-multiplying and changing nature of the confrontations between religion and govern-

ment which the Court must resolve. I d.

78. C o u nt y o f A l le gh en y v . A C L U , 492 U . S . 573, 591 ( 1989) ( q uo t in g L y n ch v .

D onnelly, 465 U .S. 668, 694 (1984) (O Co nnor, J., concurring)).

79. See id. (not susceptible to a single verbal formulation ).

80. See Boa rd of Educ. v. G rumet, 512 U.S. 687, 72021 (1994) (OConnor, J., con-

curring in part and concurring in the judgment) [hereinafter K iryas Joel].


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The Court has used two approaches that are especially appro-priate for analyzing the Establishment Clause ramificat ions of

using sacred choral music in the public schools. 81 The Courts first

approach is the three-part test articulated in L emon v. K urtz-

man.82 R elying on past decisions,83 the Court stated that to sur-

vive a constitutional challenge, the government action at issue

must: 1) have a secular purpose; 2) have a principal or primary

effect that neither a dvances nor inhibits religion; and 3) not fos-

ter an excessive government entanglement with religion. 84 A l-

though it has been strongly criticized by some members of the

Court,85 the C ourt recently noted that the L emon test has never

81. I n addition to the two approaches explained in this Note, the C ourt has used a

third approach, the fusion analysis articulated in K iryas Joel, 512 U.S. at 699. In Kiryas

Joel, the C ourt held a New Y ork statute creat ing a special school district for a religious

enclave to be unconstitutional. R elying on prior caselaw, the C ourt primarily considered

two factors: 1) whether the statute brought a bout a fusion of governmental and religious

functions by delegating important, discretionary governmental powers to religious bodies,

thus impermissibly entangling government and religion, id . at 69697 (internal q uotation

marks and citations omitted); and 2) whether there were effective means of guaranteeing

that the delegated power [would] be used exclusively for secular, neutral, and nonideo-

logical purposes. I d. (alteration in original) (internal quotation marks and citations omit-

ted). This test is appropriate for a case such as K iryas Joel where the government targets

a particular group and imposes special duties or provides special benefits. See id. at

71921 (OConnor, J . , concurring in part and concurring in the judgment). This test

seems less appropriate for analyzing the use of sacred choral music in public schools ,which falls into the category of cases involving government speech on religious topics or

use of religious symbolism.

82. 403 U .S. 602 (1971).

83. See id. at 61213.

84. I d. (internal quotation marks and citations omitted).

85. I n a sport ive dissent to L ambs Chapel v. Center M oriches Union Free School

D istrict, J ustice Scalia has written:

A s t o t he C o u rt s i nv o ca t io n o f t h e L emon t e st : L i ke so m e g ho u l i n a l a te -night horror movie that repeatedly sits up in its grave and shuffles abroad, afterbeing repeatedly killed and buried, L emon s ta lks our Establishment Clausejurisprudence once a gain, frightening little children and school attorneys . . . .Its most recent burial, only last Term, was, to be sure, not fully six feet under:Our decision in L ee v. Weisman conspicuously avoided using the supposed test but a lso declined the invitation to repudiate it . Over the years, however,no fewer than five of the currently sitting J ustices have, in their o wn opinions,personally driven pencils through the creatures heart ( the author of todays

opinion repeatedly) . . . .

508 U .S. 384, 398 (1993) (Scalia, J., concurring) (citation omitted); see also K iryas Joel,

512 U.S. a t 721 (OConnor, J . , concurring in part and concurring in the judgment) (As

the C ourts opinion today shows, the slide away from L emons unitary approach is well

under way.) . But see id. a t 710 (Blackmun, J . , concurring) ( I write separately only to

note my disagreement with a ny suggestion that todays decision signals a departure from

the principles described in L emon . . . . ) .


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been overruled.86 Moreover, in a concurring opinion, Just ice

B lackmun, joined by Justices Stevens and OC onnor, noted that

[i]n no case involving religious activities in public schools has the

Court failed to apply vigorously the L emon factors. 87 G iven the

fact that L emon has not been overruled and that it has been con-

sistently applied (or at least cited) in public school Establishment

Clause cases, the L emon framework is appropriate for analyzing

the Establishment Clause ramifications of using sacred choral mu-

sic in public schools.

The C ourts second a pproach is the endorsement test, first

articulated in J ustice OC onnors concurring opinion in L ynch v.

D onnelly88 and applied by the Court in several later decisions.89

The endorsement test incorporates the purpose and effect prongsof L emo n, considering whether the challenged governmental

practice either has the purpose or effect of endorsing religion. 90

Just ice OConnor has explained her focus on endorsement as

follows: Endorsement sends a message to nonadherants that they

are outsiders, not full members of the political community, and an

accompanying message to adherents that they are insiders, favored

members of the political community. 91 In a subsequent decision,

a plurality of the Court elaborated:

Whether the key word is endorsement, favoritism, or promo-

tion, the essential principle remains the same. The Establishment

Clause, at the very least, prohibits government from appearing to

86. See L ambs Chapel, 508 U.S. a t 395 (finding a First Amendment free speech

violation when school district denied churchs request to use school facility for film show-

ing solely because film dealt with subject from religious standpoint and stating that per-

m it t in g D i st r ic t p ro pe rt y t o b e u se d t o e xh ib it t he f il m . . . w o ul d n o t h a ve b ee n a n

establishment of religion under the three-part test articulated in L emon ); K iryas Joel,

512 U .S. a t 71011 (Blackmun, J., concurring) (declining to focus on L emon framework

but citing the case a s setting forth law and relying on decisions that explicitly rested on

L emon criteria).

87. Lee v. Weisman, 505 U .S. 577, 603 n.4 (1992) (B lackmun, J., concurring).

88. 465 U .S. 668, 687 (1984) (OCo nnor, J ., concurring) (I write separately to sug-

gest a clarification o f our E stablishment Clause doctrine.).

89. See Capital Square R eview and Advisory Bd. v. Pinette, 115 S. Ct . 2440, 2447

(1995) (plurality opinion) (referring to the endorsement test which appears in our more

recent Establishment Clause jurisprudence ); L ambs Chapel, 508 U . S. a t 395; B o a r d o f

Educ. v. Mergens, 496 U.S. 226, 24951 (1990) (opinion of OConnor, J .) ; County of

Allegheny v. AC LU , 492 U.S. 573, 595602 (1989) (plurality opinion); Wallace v. Ja ffree,

472 U .S. 38, 56 (1985).

90. County of A llegheny, 492 U.S. at 592.

91. L ynch, 465 U.S. at 688 (OC onnor, J ., concurring).


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take a position on questions of religious belief or from makingadherence to a religion relevant in any way to a persons stand-

ing in the political community. 92

The endorsement test has been particularly relevant in cases

involving the governmental display of religious symbols, such as

crches a nd crosses.93 B ecause sacred choral music may be con-

sidered a form of expression involving religious symbolism,94 th e

endorsement inquiry is a lso appropriate for analyzing the Estab-

lishment Clause ramifications of using sacred choral music in pub-

lic schools. The test evaluates the message that the governments

practice communicates,95 in q uir in g w ha t w e m a y f a ir ly un de r-

stand to be the purpose of the governments use of the religious

symbol.96 As the word fairly indicates, the standard is objective,considering the perceptions of the reasonable observer. 97 I n

92. County of A llegheny, 492 U.S. a t 59394 (quoting L ynch, 465 U . S. a t 687

(OConnor, J., concurring)).

93. See Pinette, 115 S. Ct. at 2447; County of A llegheny, 492 U.S. at 592; L ynch, 465

U .S. at 681.

94. Insofar as music is a symbol and sacred music has religious origins, sacred music

may be viewed a s a form o f religious symbolism.

95. See Pin ette, 115 S. Ct. at 245455 (OC onnor, J ., concurring in part and concur-

ring in the judgment) (noting that the standard for the endorsement test is that of the

reasonable observer [who] evaluates w hether a challenged governmental practice conveys

a message of endorsement of religion) (alteration in original) (citing County of A lleghe-ny, 492 U .S. at 630 (OC onnor J ., concurring in part and concurring in the judgment)).

96. County of A llegheny, 492 U .S. a t 595; see also Pinette, 115 S. Ct . a t 245859

(Souter, J . , concurring in part a nd concurring in the judgment) ( Effects matter to the

Establishment Clause, and one, principal wa y that we assess them is by asking whether

the practice in question creates the appearance of endorsement to the reasonable observ-

er.).

97. County of A llegheny, 492 U.S. at 620 (opinion of Blackmun, J.); see also Pinette,

115 S. Ct . a t 2466 n.4 (Stevens, J . , dissenting) (noting that in A llegheny five Justices

agreed that the appropriate s tandard is that of the reasonable observer); id . at 2455

(OConnor, J., concurring in part and concurring in the judgment) (analogizing reasonable

observer to the reasonable person in tort law who is not any ordinary individual

but is a personification of a community ideal of reasonable behavior, determined by the

[collective] social judgment.) (alteration in original) (citing W. K E E T O N E T A L ., P R O SSE R

AN D K E E TO N O N TH E L A W O F TORTS 175 (5th ed. 1984)); Lee v. Weisman, 505 U .S.

577, 597 (1992) (We do not hold that every state action implicating religion is invalid if

one or a few citizens find it offensive.).

However, as Capitol Square Review and A dvisory Board v. Pinette demonstrates,

although there is a greement that the standard is that of the reasonable observer, there is

disagreement within the Court as to the quantum of knowledge that should be attributed

to the reasonable observer. See id. at 245455 (OConnor, J., concurring in part and con-

curring in the judgment). Some members of the C ourt would at tribute to the reasonable

observer a collect ive knowledge of history and context of the community and forum in


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making this inquiry, contextthe particular setting of the dis-

playbecomes crucial.98 For example, a plurality of the Court has

explained: [A] typical museum setting, though not neutralizing the

religious content of a religious painting, negates any message of

endorsement of that content. . . . Every government practice must

be judged in its unique circumstances to determine whether it

[endorses] religion. 99 In summary, the plurality held that, under

the endorsement test, the governments use of religious symbol-

ism is unconstitutional if it has the effect of endorsing religion,

and that the effect is dependent on the context.100

Comparison of the L emon and endorsement tests reveals

that aspects of the tests overlap. B oth tests consider the pur-

poseactual or perceivedand the effect of the government ac-tion.101 I t h as b een a rg ued t ha t t he L emon t est h a s b ee n r e-

phrased with endorsement language a nd that the endorsement

test seems essentially to be a restatement of the first and second

L emo n criteria.102 I n a d d it io n , w h en a n a ly zin g E s ta b li sh me nt

which a governmental display appears. See P in ette, 115 S. C t. at 245556 (OC onnor, J .,

concurring in part and concurring in the judgment). Justice Stevens, however, would not

attribute such collective community knowledge to the reasonable observer and would find

an Establishment C lause violation [i]f a reasonable person could perceive a government

endorsement of religion from a private display. I d. at 2466 (Stevens, J ., dissenting) (em-

phasis added).

98. See County of A llegheny, 492 U .S. a t 595 (plurality opinion).99. I d. at 595 (quoting L ynch, 465 U.S. at 694 (OConnor, J., concurring)).

100. I d. at 597.

101. Although the L emon test also considers the entanglement factor, that fa ctor is

not particularly instructive in analyzing the three hypotheticals in this Note involving the

use of sacred choral music in public schools. Entanglement has been interpreted as state

involvement in the power structure of a religious organizat ion. Sacred choral music in

public schools could conceivably raise entanglement issues if, for example, a school music

teacher w ere also the minister o f music or organist at a church, and had the school choir

perform during church services. How ever, entanglement is not the crucial factor in most

cases involving sacred choral music. Lower court precedent a ddressing sacred choral mu-

sic illustrates the limited a pplicability of the entanglement factor; courts have found en-

tanglement only when they have found the effect of the government pract ice is a reli-

gious exercise. In other words, they have found entanglement insofar as state a ctors are

involved in directing that religious exercise. See infra Section II.C.

102. See L ynch, 465 U.S. at 690 (OConnor, J., concurring).The central issue in this case is whether P awtucket has endorsed C hristianity byits display of the creche. To answer that quest ion, we must examine both whatPaw tucket intended to communicate in displaying the creche and what messagethe citys display actually conveyed. The purpose and effect prongs of the L em-on test represent these two aspects of the meaning of the citys action.

I d. See also U nderkuffler-Freund, supra note 4, a t 969 (quoting Wallace v. Jaffree, 472

U.S. 38, 70 (1985) (OConnor, J . , concurring) (R ecently, the f irst two prongs of [the


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Clause issues, the Court has often combined L emon factors with endorsement language.103 I n so me ca se s, t he C o ur t see ms

merely to have cited the opinions from which the tests are drawn,

but not to have applied the factors. Regardless of the name of the

test applied, however, the relevant Supreme C ourt E stablishment

Clause precedent demonstrates an emphasis o n both the purpose

and effect of the government action at issue.

B . Relevant A pplications

Although there is no direct Supreme Court statement on the

use of sacred choral music in public schools, there is related Su-

preme Court precedent that bears on the issue, as well as directly

relevant lower court precedent. In order to predict how the Court

would rule on the constitutionality of the use of sacred music in

public schools, it is useful then to explore the relevant caselaw.

1. Supr eme C our t Pr ecedent. I n School D istrict of A bington

Tow nship v. Schempp,104 the Supreme C ourt found state-directed

d e vo t io n a l B i bl e r ea d in g u nco n st it ut io n a l a s a st a t e -d ir ect e d

religious exercise. Although the decision predates the articulation

of the L emon and the endorsement tests, it too analyzes both the

purpose and effect of the government action at issue. In analyzing

the purpose of the state rule requiring daily B ible reading in

public schools, the Co urt rejected the legislatures avowed secular

purpose promotion of moral values, the contradiction to the

m a te ria list ic t re nd s o f o ur t im es, t he pe rpe tua t io n o f o ur

L emon] test have been reframed in the terms of endorsement : the law or pract ice, to

survive scrutiny, must not convey a message that religion or a particular religious belief

is favored o r preferred. )).

103. See Board of Educ. v. Mergens, 496 U .S. at 226, 24849 (1990) (Eq ual Access

Act s purpose was not to endorse or disapprove of religion (quoting Wallace, 472 U.S.

at 56)); see also E dwa rds v. Aguillard, 482 U .S. 578, 593 (1987) (rephrasing L emons first

factor in terms of endorsement); Wallace, 472 U.S. at 56 (same).

This approach has been used by lower courts a ddressing the Establishment C lause

ramificat ions of sacred choral music in public schools ; these courts have conflated the

L emon and endorsement tests by rephrasing the f irst a nd second L emon factors and

asking instead whether the challenged government act ion was intended to endorse or

has the effect of endorsing religion. B auchman v. West High Sch., No. 95-C506G , 1996

WL 407856, a t *3 (D. Utah May 30, 1996) (quoting Robinson v. C ity of Edmond, 68

F.3d 1226, 1229 (10th Cir . 1995)); see also Doe v. Duncanville Indep. Sch. Dist., 70 F.3d

402, 405, 40608 (using several approaches including L emon test, endorsement test, and

what court deems coercive effect test of Weisman).

104. 374 U .S. 203 (1963).


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institutions and the teaching of literature. 105 The Co urt implied

that, even if the legislatures true purpose was nonreligious, the

effect of readings, without comment, fro m the B ible ha d a

pervading religious character that made the government action

unconstitutional. 106 In so holding, the Court weighed heavily the

effect or perceived purpose of the activity, emphasizing factors that

demonstrated the religious context of the activity, including the

rules granting of specific permission to use an alternative Catholic

version of the B ible and specific permission fo r nonattendance.107

The Court found that these factors were not consistent with the

contention that the Bible is here used either as an instrument for

nonreligious moral inspiration or as a reference for the teaching of

secular subjects.

108

The Court did qualify i ts holding in Schempp, sta t ing that

using the B ible without such a religious context in an objective

presentation of the B ible or of religion, a s part of a secular pro-

gram of education, would be constitutional.109

[I]t might well be said that ones education is not complete with-

out a study of comparative religion or the history of religion and

its relationship to the advancement of civilization. It certainly

may be said that the Bible is worthy of study for its literary and

historic qualities. Nothing we have said indicates that such study

of the Bible or of religion when presented objectively as part of

a secular program of education, may not be effected consistently

with the First Amendment.110

This statement underscores the importance of context in determin-

ing whether the states use of material with religious contentsuch

as the B ible or sacred musicconstitutes unconstitutional reli-

gious exercise or constitutional study.111

105. I d. at 223.

106. I d. at 224 (emphasis added).

107. See id.

108. I d.

109. See id. at 225; see also Stone v. G raham, 449 U .S. 39, 42 (1980) (striking statute

mandating post ing of Ten Commandments on school walls and stat ing, This is not a

case in w hich the Ten Commandments are integrated into the school curriculum, where

the Bible may constitut ionally be used in an appropriate s tudy of history, civilizat ion,

ethics, comparative religion, or the like. (citing Schempp, 374 U.S. at 225)).

110. Schempp, 374 U.S. at 225. The Schempp Court distinguished studying the B ible

as literature or history from the state-directed, devotional Bible reading at issue in the

case, holding that the latter devotional use to be a religious exercise. I d.

111. The C ourt s imilarly relied on context in analyzing the effect factor in L ambs


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Similarly, in Stone v. Gr aham,

112

t he S upr em e C o ur t d e-clared unconstitut ional a statute that required the post ing of a

copy of the Ten Commandments on the wall of each public class-

r oo m in t he st a te .113 The Court again rejected the legislatures

avowed secular purposedemonstrating the connection between

the Ten Commandments and the common law. The Court rejected

this purpose, despite the fact that a statement making this connec-

tion appeared on each display.114 In rejecting the asserted pur-

pose, the Court relied on the effect or perceived purpose of the

display, which the Court deemed plainly religious in nature. 115

The Court stated:

The Ten Commandments a re undeniably a sacred text in the

Jewish and Christian faiths, and no legislat ive recitat ion of asupposed secular purpose can blind us to that fact. . . . Posting

of religious texts on the wall serves no such educational function.

If the posted copies of the Ten Commandments are to have any

effect at all, it will be to induce the schoolchildren to read, medi-

t a te upo n, per ha ps t o v en er at e a nd o bey , t he C o mm and -

ments. . . . it is not a permissible state objective under the Estab-

lishment C lause.116

In County of A llegheny v. A merican Civil L iberties U nion,117

the Supreme C ourt, citing L emon as well as the endorsement

test, considered whether two town displays had the effect of en-

dorsing religion.118 In doing so, the Court emphasized the impor-

tance of context in determining whether the displays had the effect

of endorsement. U sing the standard of a reasonable observer, the

Chapel v. Center M oriches Union Free School D istrict, 508 U .S. 384, 395 (1993). In

L ambs Chapel, the Court held that permitting public school property to be used, consis-

tent with the E qual Access Act , by a church to show a religious f ilm would not be an

establishment o f religion. See id. at 395. The Court found several contextual factors, in-

cluding the time of the film showingafter school hoursand that the showing would be

open to the public, that helped the C ourt to determine that there was no realist ic dan-

ger that the community w ould think that the D istrict w as endorsing religion. I d.

112. 449 U .S. 39 (1980).

113. See id. at 4243.

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