Happy Holidays--Scratch That! (Update 12/25/2008)

If you haven't been following the conversation about the Establishment Clause and its violation by tech depts showing off their technical prowess with electronic cards, you need to.

Knowing that I would quickly get lost in the legalese and deep discussions, based on my past experience with an eCard two years ago when my team's eCard received critique. Scott wrote, Miguel, I liked your team's 'Xmas card' but I think it is illegal.

Here's that card from 2006 (I'm surprised it is still online!) that Dr. Scott critiqued and resulted in no subsequent cards at all for 2007 and 2008:

I think the card is great but couldn't very well argue with Dr. Scott McLeod...he's a lawyer and it sounded right. Nevertheless, the card IS funny.

Section Update 12/25/2008: I submitted an appeal to Scott and Justin...here are their emailed responses regarding the 2006 card displayed above:

Justin (The EdJurist) writes....
I certainly do not think so. The only mildly religious part is the label of X-mas a Scott pointed out. If I remember right, the X is supposed to be a substitute for Christ in a religious way, like the PX or whatever that I remember learning about in Catholic school. But, how many kids are going to know that?

It is my opinion that the word Christmas is not out of bounds. I think that is where I differ with Scott and Jon. The issue is not whether or not it has religious origins, it certainly does, but instead the question is whether it is become so common in usage that it has lost much of its religious significance and is just a broad societal term now. You can answer that question for yourself. As I reflected on why Scott, Jon and I differed on this, it occurred to me that we grew up in different parts of the country and that what we consider religious v. societal may be different in those areas. That's not really an good answer, but I think it does have some impact on what we consider mainstream.

So, if Christmas is not out of bounds, I don't see X-mas being out of bounds either as it is a commonly used abbreviation.

But, that's just my take on it Miguel. Your free to consult your school attorney and get their opinion for your district.
Dr. Scott McLeod (Dangerously Irrelevant) responds...
Regardless of how secularized it's become, and regardless of certain
geographic regions' predispositions, at its heart Christmas is a religious
holiday. As such, I don't think public schools have any legal or ethical
business formally wishing students, families, or employees 'Merry
Christmas.' Nor should they be wishing anyone Happy Kwanzaa, Happy Hannukah,
or anything else. At best they can maybe wish all those things and more in
an effort to be as inclusive as possible (of course this doesn't address the
concerns of atheists). I'm guessing that Jon will concur...

We have a LOT of case law affirming public schools' obligation to keep
church and state separate. I don't believe we have any case law affirming
public schools' ability to favor one particular religious holiday over
another via its formal greetings. I think this is a loser in court.
So, there we go, a split decision. Could I--and any other school district--be hopeful and just say, "This is just TOO grey." It's a shame we don't have a third lawyer (or even a 4th) to break the tie. It would be great to have Jon Becker and/or Pamela Parker (Texas Teacher Law) jump in on this!
End Section Update

Original Entry Resumes:
Two years later, the discussion comes alive again and an apt example comes to us from Texas.

Take a look at Deer Park Independent School District's electronic Xmas card. Shouldn't it be pretty easy to give a thumbs up or down on this card?

Dr. Scott Mcleod writes:
We have two issues here. The first is the legal one. The second is one of inclusiveness. Justin, I think the Deer Park e-card violates both. If I'm a non-Christian student, family, or employee in that district, I'm guessing that I'm feeling pretty marginalized right now...
I will be up front and share that it is far easier to avoid this problem than it is to try and walk a fine line. Simply, it's easier to just NOT do the card. . .I had no qualms about saying "No Xmas eCard" when asked by my team. Should I have had?

Let's stay focused. A tech dept creates a nice Xmas card and puts it online for all district staff, emailing them all. Is that a violation of the Establishment Clause? Winter Break may very well be over by the time this issue gets resolved in the comments! Matt Tabor jumps in on the action:

Violations of the Establishment Clause are not to be taken lightly. We’ve got a unique setup here in the United States - though founded clearly on Judeo-Christian/Western principles, we aren’t a thuggish, iron-fisted theocracy that forces the minority to join the mission of the majority.

Some, however - and this includes the CASTLErs with this initiative - interpret the Establishment Clause as it relates to public schools to mean that the ‘freedom from’ is near absolute.

I described this particular contest as “glib, ideologically-driven tripe”...If you read the comments, you’ll see why the “Spot That Holiday Violation!” contest exhibits twice the zealotry they’re working so hard to point out.

And, to co-opt a fashionable education term, this contest facilitates that anti-Christmas zealotry.

I just wish Matt, Scott and Justin would come right out and give their recommendation.

Ok gentlemen, what's your FINAL answer?
Is the Deer Park ISD Xmas card a violation of the Establishment Clause, yes or no?

While we're waiting for the Trinity to respond, why not make some holiday cards of your own? Here's one...

This funky card is created by Jack Frost.
Create your own funky card at CardFunk.

Subscribe to Around the Corner-MGuhlin.net

Be sure to visit the ShareMore! Wiki.


Anonymous said…
Anonymous said…
In my opinion, Miguel, the Deer Park e-card is NOT a violation of the Establishment Clause (although I think Scott would disagree - which should give you some idea how close to the line this is). That's the best I can do for you (1) because I am not authorized to practice law in Texas and (2) because there has not been a case exactly like this before. So, based solely on my reading of past cases, my prediction of how a case against this card would come out is that the school would win. But, there could be other factors that I am unaware of that would change the outcome such as if this school has a history of religious issues.

Now, that's the purely legal side from one lawyer's standpoint. Scott brings up the practical and ethical sides, which I think do merit consideration here. Even if protected legally, if this card is likely to offend even one student, perhaps it was not worth doing. The practical advice here is just use the phrase "Happy Holidays" and images that relate more to New Year's than Christmas and you wouldn't have to worry about the line.

I am a fan of the e-card for a couple reasons and I suggest districts continue to do this kind of thing - just not so heavy on the "Christmas." #1 - it is just a nice holiday wish from a department that is usually under the radar. #2 - it shows the teachers that there are smart folks in that department who can help you with curriculum and #3 - it models good use of the Internet to students who (being tech savvy students) will likely want to create one of their own (that's the second time this year I have played a dancing elf - my wife already humiliated me a few nights ago).

Anyway, sorry, that's the best I can do for you. I know everyone wants clear yes or no answers, but the truth is that it is impossible to know until someone brings a case and a judge makes a decision.
Anonymous said…
Why did you post it at http://www.dangerouslyirrelevant.org/2008/12/its-time-to-play-spot-that-holiday-violation-2008.html#comments ?

Are you hoping you win the contest? At what expense?

Did you contact Deer Park technology and share your experience to maybe help them prevent any potential problems?

Are you hoping they get in trouble?
Dear Anonymous:
Yes, I hope to win the contest--and laugh a bit--with a publically available ecard from a Texas district. You already saw the winning entry for 2006...came from my team. We didn't get "in trouble." What we did learn was that we shouldn't come up with eCards like this.

Do I want to get them in trouble? No, I want to learn what I can from the experience. Scott and Justin aren't out to get anybody, just to help folks learn what is allowable under the law...even if they can't necessarily agree as to what allowable is.

As I understand it, only someone in their community could file a lawsuit and allege being excluded or whatever.

Wishing you well,
Anonymous said…
Is it only the content of the eCard that is applied to the criteria? What if it was never delivered? Does the actual viewing audience get figured into the equation?

Does establishment clause require a pattern or a series of actions?

I do not see this eCard as a violation if students were not required to watch. I did not see any religous message in the card.

We apply community standards to other first amendment questions, does that apply here?

Thanks for the topic.
Anonymous said…
I did not receive an email card from any school district in Texas that wished me any of the following greetings, "Happy,

Maha Shivarathri
Martyrdom of the Bab
Birth of the Bab
Birth of Baha'u'llah
Mawlid al-Nabi
Id al-Fitr.
Id al-Adha
Rosh Hashanah
Yom Kippur

Perhaps it is because the religions represented by these holidays are not established enough in Texas to make their presence felt and influence others.

Popular posts from this blog

Rough and Ready - #iPad Created Narrated Slideshow

Old Made New: Back to Bunsen Labs Linux (Updated)

The Inside Scoop: EdTech 2020 Virtual Conference #edtech #zoom