Appeal of GEORGE SEBOUHIAN from action of the Board of Education of the City School District of the City of Dunkirk concerning the naming of a concert.

Decision No. 12,679

 

(April 14, 1992)

 

Beckstrom & Plumb, Esqs., attorneys for respondent, Charles G. Beckstrom, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a resident of the Dunkirk City School District whose child attends respondent's schools, appeals from the board of education's action in naming a concert. The appeal must be sustained.

In December of each year, the Dunkirk City School District conducts a music program performed by the students. The program includes holiday songs of both a secular and religious origin. Prior to 1990, such programs were referred to as "Christmas" concerts. In 1990, the name of the program was changed to "Winter" concert. On December 10, 1991, at a regular meeting of the board, the following resolution was proposed by a board member and adopted by the board by a vote of 5 to 3:

WHEREAS, the Community of Dunkirk is predominately Christian and also steeped in the tradition of Christmas holiday;

NOW, THEREFORE, BE IT RESOLVED, that this Board of Education will again allow the concerts performed in this District at this time of year to be referred to as "Christmas Concerts".

The printed programs distributed at concerts held on December 12 and 18, 1991 were entitled "Holiday Concert".

In this appeal, petitioner does not challenge the content of the concert, but alleges that respondent's adoption of the resolution to restore the name of the concert to "Christmas" concert violates the Establishment Clause of the First Amendment of the United States Constitution. Although an appeal to the Commissioner of Education is not the proper forum for litigating novel issues of constitutional law (Appeal of DePasquale, 30 Ed Dept Rep 361; Appeal of DePold, 26 id. 460; Matter of Sepinski, 25 id. 183), this case does not present a novel issue. Where the government's actual purpose in taking an action is to convey a message endorsing religion, such action violates the First Amendment's prohibition against the establishment of religion (See Edward v. Aguillard, 482 US 373; Wallace v. Jaffree, 472 US 38). In this case, respondent's resolution leaves no doubt that respondent, in renaming its winter concert a "Christmas concert", intended to advance a particular religion in the public schools. Respondent's resolution therefore runs afoul of the First Amendment, and cannot stand.

I note that my decision in this matter does not reach the question of whether naming a concert a "Christmas concert" is unconstitutional per se.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent repeal the resolution referred to herein at its next scheduled meeting.

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