In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 17‐1683 & 17‐1591
FREEDOM FROM RELIGION FOUNDATION, INC., et al.,
Plaintiffs‐Appellees, Cross‐Appellants,
v.
CONCORD COMMUNITY SCHOOLS,
Defendant‐Appellant, Cross‐Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:15‐CV‐463 — Jon E. DeGuilio, Judge.
____________________
ARGUED OCTOBER 31, 2017 — DECIDED MARCH 21, 2018
____________________
Before WOOD, Chief Judge, and EASTERBROOK and SYKES,
Circuit Judges.
WOOD, Chief Judge. Since ancient times, people have been
celebrating the winter solstice, which occurs around the third
week of December in the Northern Hemisphere. Many of
these celebrations are religious in nature, and so in the mod‐
ern United States they have led to a depressingly steady
stream of First Amendment challenges, in which one party
wishes to express its religious views in the public sphere and
2 Nos. 17‐1683 & 17‐1591
the other party asserts that the Establishment Clause would
be violated by the display.
Our case fits that pattern to a T. It arose in Elkhart, Indiana,
which is served by the Concord Community Schools. For
nearly half a century, Concord High School spread holiday
cheer with a “Christmas Spectacular”—a winter concert fea‐
turing an elaborate, student‐performed nativity scene. Things
changed, however, when some parents, a student, and a non‐
profit organization objected to what they perceived to be an
impermissibly religious program. The school suggested that
the 2015 version of the show would reflect modest alterations
to the 2014 version. After the district court preliminarily en‐
joined the school from putting on even the revised show in
2015 as proposed, Concord scrubbed more of the religious
content from the show.
The district court agreed with the plaintiffs that the 2014
Spectacular and the version initially proposed for 2015 vio‐
lated the First Amendment’s Establishment Clause and
awarded nominal damages. But the court sided with the
school in finding the latest version of the show constitutional.
Because we also find that the school’s second round of adjust‐
ments to the Spectacular were enough to push it over the line
for compliance with the Constitution, we affirm the judgment
of the district court.
I
A
For decades, students at Concord High School have staged
and performed the Christmas Spectacular, a holiday show
featuring students’ choral, instrumental, and dance perfor‐
mances. The students not only perform, but also handle the
Nos. 17‐1683 & 17‐1591 3
design and creation of costumes, sets, and props. They spend
months preparing for the annual show in their performing
arts classes and extracurricular activities. Concord’s produc‐
tion is extraordinary: it involves about 600 students and puts
the lie to those who suggest that arts and music are not im‐
portant parts of a high school program. While the Spectacular
showcases the talents of Concord students, it also celebrates
the holiday season, with a particular focus on Christmas.
In August 2015, the Freedom From Religion Foundation,
Inc. (“FFRF”), a non‐profit organization focused on defending
the constitutional line between church and state, wrote a letter
to the school’s superintendent on behalf of one of FFRF’s
members, a parent of a Concord High School student. FFRF
expressed concerns about the religious nature of the Spectac‐
ular’s second half. After the superintendent found no merit in
the parent’s position, FFRF, along with the parent and his
child, sued the school, alleging that the Christmas Spectacular
violated the First Amendment’s Establishment Clause. Two
more parents later joined the suit. Because the school made
changes to the program over the course of litigation, we de‐
scribe each of the different iterations at issue.
Although the first half of the show, which featured non‐
religious pieces tied to an annual theme, varied from year to
year, the second half did not. For 45 years (through 2014),
Concord followed a consistent script, to which we refer as the
“2014” show. The 30‐minute second half contained a 20‐
minute segment called “The Story of Christmas.” This section
included religious songs interspersed with a narrator reading
passages from the New Testament. Student actors walked
across stage (as if going to Bethlehem) before posing for a
nativity scene; in all, this lasted about 12 minutes.
4 Nos. 17‐1683 & 17‐1591
Plaintiffs took issue with this portion of the Spectacular in
their initial letter and subsequent lawsuit. That suit, filed in
October 2015, asked for declaratory and injunctive relief, as
well as nominal damages and attorneys’ fees. With December
fast approaching, the plaintiffs asked the district court for a
preliminary injunction to prevent the school from performing
the 2014 version of the second half in the December 2015
show. Before the court ruled on plaintiffs’ motion, Concord
volunteered to make two changes to the 2015 program (the
“proposed” version). First, it said that it would remove the
scriptural reading from the nativity scene, which otherwise
would remain unchanged. Second, it added two songs to kick
off the second half: “Ani Ma’amin” and “Harambee.” These
performances were intended to represent Hanukkah and
Kwanzaa.
The district judge concluded that the proposed edits did
not adequately address the Establishment Clause problems,
and so on December 2, 2015, it granted a preliminary injunc‐
Nos. 17‐1683 & 17‐1591 5
tion forbidding the school from performing the proposed ver‐
sion. In response to the district court’s ruling, Concord
quickly edited the Spectacular further. The post‐intermission
segment actually performed in 2015 (the “2015” show) is, to
our knowledge, the one performed in 2016 and 2017. The first
half, “The Magic of the Season,” continues to feature seasonal
and non‐religious songs and skits, such as “Winter Wonder‐
land,” “Text Me Merry Christmas,” and “Secret Agent Santa.”
It lasts about an hour.
6 Nos. 17‐1683 & 17‐1591
The second half, “The Spirit of the Season,” is still about a
half‐hour in length and takes a more reverential tone. After
announcing that the Spectacular will now “observe the many
cultural celebrations during this holiday season,” the show
spends about four and a half minutes each explaining and
performing a song to represent Hanukkah and another for
Kwanzaa. Images are projected onto large screens to accom‐
pany both songs. For the remaining 20 minutes, students per‐
form numerous Christmas songs that are more religious in
nature (e.g., “Jesus, Jesus, Rest Your Head,” “O Holy Night”).
During one of the songs, a nativity scene appears on stage for
two minutes. The manger uses mannequins, not student ac‐
tors. There are no New Testament readings. In February 2016,
the plaintiffs amended their complaint to allege that the 2015
version was also unconstitutional.
Nos. 17‐1683 & 17‐1591 7
8 Nos. 17‐1683 & 17‐1591
B
In 2016, both parties moved for summary judgment. The
district court ruled that the 2015 show did not violate the Es‐
tablishment Clause and granted partial summary judgment
in favor of Concord. After supplemental briefing on whether
the plaintiffs’ challenges to the 2014 and proposed versions
were moot, the court decided that they were not. It granted
the plaintiffs a declaratory judgment that the 2014 and pro‐
posed versions were unconstitutional and awarded $10 in
nominal damages; it denied plaintiffs’ request for a perma‐
nent injunction. The parties’ cross‐appeals from the district
court’s final judgment are before us.
We review a district court’s decision on cross‐motions for
summary judgment de novo, evaluating the record in the light
most favorable to the non‐moving party on each issue. Kemp
v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017). We also consider le‐
gal questions of mootness de novo, though we review the un‐
derlying factual determinations for clear error. Wis. Right to
Life, Inc. v. Schober, 366 F.3d 485, 489 (7th Cir. 2004).
Nos. 17‐1683 & 17‐1591 9
II
Plaintiffs allege that Concord’s alterations to the second
half of the Spectacular were not enough to avoid a violation
of the Establishment Clause of the First Amendment. That
clause prohibits Congress from enacting any law “respecting
an establishment of religion.” U.S. CONST. amend. I, cl. 1. The
Supreme Court has extended this protection to states and mu‐
nicipalities. Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8
(1947). The Supreme Court has employed at least three ways
to assess whether a local governmental body, such as a school,
violates the Establishment Clause: the endorsement, coercion,
and purpose tests. We recognize that commentators, like our
concurring colleague, have found flaws in each of these tests,1
but as a lower court, we must follow the guidance we have
been given to the best of our ability. We therefore examine the
Spectacular as performed in 2015 under each of the Court’s
approaches.
A
The first approach—the endorsement test—originated in
a concurrence by Justice O’Connor; it was approved by a
majority of the Court a few years later. Lynch v. Donnelly, 465
1
Indeed, there is debate among the Justices about the continuing va‐
lidity of the endorsement test. Justices Scalia and Thomas, in a dissent
from a denial of certiorari, expressed the view that Town of Greece v. Gallo‐
way, 134 S. Ct. 1811 (2014), had rejected it. See Elmbrook Sch. Dist. v. Doe,
134 S. Ct. 2283 (2014). The opinion in Town of Greece, however, did not
make this explicit. Moreover, at least the dissenting Justices in Trinity Lu‐
theran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2031 n.4 (2017),
suggested that the endorsement test is still with us. For now, we do not
feel free to jettison that test altogether—and we note that given the out‐
come in this case, whether or not we use it makes little difference.
10 Nos. 17‐1683 & 17‐1591
U.S. 668, 691–92 (1984) (O’Connor, J., concurring); Cnty. of
Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573,
592–94 (1989), abrogated on other grounds by Town of Greece v.
Galloway, 134 S. Ct. 1811 (2014). This analytic tool looks for
state action that communicates a government’s endorsement
of a religion or a particular religious belief. Freedom From
Religion Found., Inc. v. City of Marshfield, 203 F.3d 487, 493 (7th
Cir. 2000). Such endorsement is especially concerning when
impressionable children are involved. Doe ex rel. Doe v.
Elmbrook Sch. Dist., 687 F.3d 840, 851 (7th Cir. 2012) (en banc)
(“Elmbrook II”). To determine whether a practice endorses
religion, we must look at the totality of the circumstances
surrounding the challenged conduct from the perspective of
a reasonable observer. Books v. Elkhart Cnty., 401 F.3d 857, 867
(7th Cir. 2005) (“Books II”). The reasonable observer is aware
of a situation’s history and context and encompasses the
views of adherents and non‐adherents alike. Cnty. of
Allegheny, 492 U.S. at 620; Books II, 401 F.3d at 867.
It was under this standard that the district court concluded
plaintiffs were likely to succeed on the merits in their initial
challenge. But the 2015 production’s second half differs signif‐
icantly from the 2014 and proposed programs. The biblical
reading is gone. The nativity scene is over 80% shorter, now
on stage for just one song with a handful of mannequins ra‐
ther than student actors. The show also pays tribute, albeit
briefly, to two winter celebrations besides Christmas. We
must ask if a reasonable observer, viewing the Spectacular as
a whole, would perceive the 2015 show as a religious endorse‐
ment.
Let us first start with the most inherently religious aspect
of the show: the nativity scene. We are not prepared to say
Nos. 17‐1683 & 17‐1591 11
that a nativity scene in a school performance automatically
constitutes an Establishment Clause violation. See Doe v. Wil‐
son Cnty. Sch. Sys., 564 F. Supp. 2d 766, 800–01 (M.D. Tenn.
2008) (finding a two‐minute nativity scene in a 22‐minute pro‐
gram acceptable because it “presented in a prudent, unbiased,
and objective manner” “the traditional historical, cultural,
and religious meaning of the holiday in America”). Each
show must be assessed within its own context. Nevertheless,
the nativity story is a core part of Christianity, and it would
be silly to pretend otherwise. Many nativity scenes therefore
run a serious risk of giving a reasonable viewer the impres‐
sion of religious endorsement. But in Concord’s 2015 show,
the nativity tableau no longer stands out. Instead of serving
as the centerpiece for much of the second half and the finale,
it has become just another visual complement for a single
song. The Supreme Court has similarly allowed a crèche that
is part of a larger, mostly secular display. Lynch, 465 U.S. at
685–87 (1984) (upholding a nativity scene accompanied by
secular objects); see also Books II, 401 F.3d at 868–69 (allowing
a display containing the Ten Commandments and secular
texts).
Another problematic feature had been the music of the
show’s second half. In the 2015 version, while the playlist car‐
ries over much of the earlier programs, it adds Ani Ma’amin
and Harambee. We acknowledge that, although the narrative
descriptions for each holiday are roughly the same length, the
number of Christmas songs dwarfs the single songs to cele‐
brate Hanukkah and Kwanzaa. Nevertheless, we accept the
school’s assertion that there are a greater number of appropri‐
ate Christmas arrangements by virtue of the sheer volume of
Christmas songs. (This may simply reflect familiarity rather
than actual numbers. Anyone listening to the radio during
12 Nos. 17‐1683 & 17‐1591
December will realize that there are other familiar Hanukkah
songs. E.g., “Hanukkah, O Hanukkah,” the “Dreidel” song.
See Andrew Frisicano & Ro Samarth, Eight Days of Hanukkah
Songs to Listen to, TIME OUT (Nov. 27, 2017),
https://www.timeout.com/newyork/music/best‐hanukkah‐
songs.)
It also gives us pause that, as the district court recognized,
the songs in the second half of the program “generally align
with the story of the birth of Jesus.” While this is practically
the only message in the second half of the 2014 show (to the
point that it was hard to distinguish it from many Christmas
Eve church services), the 2015 show is materially different.
Without the biblical narration and live nativity, the perfor‐
mance of Christmas carols alone does not inevitably convey a
religious message. These songs, played “with regularity” in
workplaces and stores and on TVs and radios, have perme‐
ated mainstream society. See Florey v. Sioux Falls Sch. Dist. 49‐
5, 619 F.2d 1311, 1316 n.5 (8th Cir. 1980) (recognizing that “car‐
ols have achieved a cultural significance” such that they
should not be per se prohibited from public schools).
The religious nature of the nativity and the songs do not
come off as endorsement in part because they make up only a
fraction of the Spectacular, which as configured in 2015 is pri‐
marily a non‐religious seasonal celebration. The Santas, jingle
bells, and winter wonderlands of the first half all promote the
secular aspects of the holiday season. (We recognize that some
may view these songs and symbols as non‐secular given that
Christmas is, at root, a Christian holiday; on the other hand,
even the pre‐Christian pagans had their winter solstice cele‐
brations, as we have noted.) See Cnty. of Allegheny, 492 U.S. at
616–17 (describing Christmas trees as secular symbols of the
Nos. 17‐1683 & 17‐1591 13
holiday season); Lynch, 465 U.S. at 711 (Brennan, J., dissent‐
ing) (characterizing Santa Claus, reindeer, and carolers as
“secular figures”). Another point in favor of the 2015 show is
the short length of the nativity scene. In another setting, a
scene of similar length has been found unconstitutional. E.g.,
Lee v. Weisman, 505 U.S. 577, 594 (1992) (holding a two‐minute
prayer at a graduation unlawful).
Yet the broader secular context—on top of the inclusion of
two other holidays—matters here because a reasonable audi‐
ence member, sitting through the 90‐minute Spectacular,
would not understand the production to be ratifying a reli‐
gious message. See Bauchman for Bauchman v. West High Sch.,
132 F.3d 542, 555–56 (10th Cir. 1997) (a high school choir’s per‐
formance of Christian devotional songs at churches did not
constitute endorsement of religion where the choir also per‐
formed secular songs in non‐religious settings); see also Books
II, 401 F.3d at 868–69 (a display containing the Ten Command‐
ments along with secular texts and educational explanations
would not reasonably be perceived as an endorsement of re‐
ligion).
The changes to the second act reduced the religious im‐
pact, tipping the scales in favor of Concord. The show’s his‐
tory, in particular the use of the same living nativity scene for
the previous 45 years, supports this conclusion. Plaintiffs ar‐
gue that a reasonable observer would view even the 2015
show, with its abbreviated nativity, as the same religious pro‐
gram, just with litigation‐motivated edits. The counterargu‐
ment is that an observer would reasonably perceive the 2015
Spectacular as a major departure from 2014. Where the second
half was exclusively a telling of the birth of Jesus, it can now
be seen as a collection of music from multiple traditions. The
14 Nos. 17‐1683 & 17‐1591
district court adopted the latter view, and we find that a fair
assessment of the evidence.
It is worth emphasizing that no one factor alone—the sec‐
ular first half, the nativity’s lack of prominence, the inclusion
of other holidays—leads us to conclude that the 2015 Spectac‐
ular passes muster under the endorsement test. Overall, the
2015 performance in its current form would not cause a rea‐
sonable observer to believe that Concord is signing off on a
particular religious message.
B
Plaintiffs also argue that the 2015 production
impermissibly coerced the audience members (including
some students, we presume) and student participants to
conform to one particular religion—Christianity. In two
school‐prayer cases, the Supreme Court articulated the
approach for evaluating whether a government applied
coercive pressure to support or participate in religion. In Lee
v. Weisman, 505 U.S. 577 (1992), the Court held that a two‐
minute prayer at a middle school graduation violated the First
Amendment because it applied subtle and indirect public and
peer pressure to remain silent. Id. at 587, 593–94. In Santa Fe
Independent School District v. Doe, 530 U.S. 290 (2000), the Court
concluded that a student‐initiated prayer before a high school
football game forced students to make an unconstitutional
choice between religious conformity or not attending games.
Id. at 312. This court has employed the coercion test to find
hosting a high school graduation in a church unconstitutional
because the school created a “captive audience” in a
proselytizing environment. Elmbrook II, 687 F.3d at 855–56. As
these cases suggest, coercion concerns are heightened when
the conduct at issue involves elementary and secondary
Nos. 17‐1683 & 17‐1591 15
public school students. Lee, 505 U.S. at 592; Edwards v.
Aguillard, 482 U.S. 578, 583–84 (1987) (acknowledging that
students are particularly vulnerable because school
attendance is mandatory and they are especially susceptible
to pressure to emulate teachers and peers).
Concord argues that coercion analysis has no role to play
here, and so it does not explain why it should prevail if we do
not agree with its premise. Instead, it attempts to incorporate
by reference the district court’s opinion on the matter. We do
not see why coercion should be off the table: this is an ap‐
proach that the Supreme Court has taken, and that we have
applied in the past. Because “appellate briefs may not incor‐
porate other documents by reference,” we could, if we
wished, deem any opposition to plaintiffs’ coercion argument
as forfeited. Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d
910, 924 (7th Cir. 2012) (citation omitted). But we think it best
to reach the merits, in the interest of completeness.
As in Lee, Santa Fe, and Elmbrook II, Concord had a captive
audience on its hands—in terms of both students involved in
performing arts classes and extracurricular activities, and
their families and friends attending the show to support the
students. That the school had a policy allowing students to
opt out of participating in the Spectacular (an option some in‐
voked) is irrelevant, because a choice to participate or miss
out on a significant portion of the curriculum is an unconsti‐
tutional one.
Yet unlike Lee, Santa Fe, and Elmbrook II, here there was no
religious activity in which performers or audience members
had to partake during the Spirit of the Season. There was no
prayer as in Lee and Santa Fe. No one passed out religious lit‐
16 Nos. 17‐1683 & 17‐1591
erature as in Elmbrook II. The show took place in a school au‐
ditorium, not a church sanctuary, a religious space by defini‐
tion. The component that came closest to religious activity,
reading from the New Testament, was removed in 2015 and
so we have no need to opine on it.
Despite the 2015 changes, plaintiffs say that they remain
concerned that students or audience members felt pressured
to support the religious aspects of the Spirit of the Season
when they saw others “reflecting on a religious hymn.” With
the lights dimmed, mid‐performance, however, it would have
been hard to observe the behavior of others, let alone be sure
that they were reflecting on the religiosity of the performance
rather than enjoying the entertainment or checking texts on
their cellphones. More compelling is plaintiffs’ concern that
the powerful ovation (heard plainly on the recording of the
performance that was included in the record) at the display of
the nativity scene might pressure others to join the applause.
Yet given the context of this heated litigation, the loud clap‐
ping was likely communicating opposition to the lawsuit
more than support for any particular religious belief. We an‐
ticipate that reactions to the nativity in subsequent years will
be less fervent. Although the matter is not open‐and‐shut, we
see no reason to reverse the district court’s conclusion on sum‐
mary judgment that the 2015 show did not pressure individ‐
uals to support any religious beliefs.
C
Last, plaintiffs allege that the 2015 show has an unlawful
religious purpose. Under Lemon v. Kurtzman, 403 U.S. 602
(1971), a practice is unconstitutional if it lacks a secular objec‐
tive. Id. at 612–13. We defer to a government’s statement of its
own aims, Edwards, 482 U.S. at 586, but the professed objective
Nos. 17‐1683 & 17‐1591 17
cannot be a sham or secondary to a religious goal, McCreary
Cnty. v. ACLU of Ky., 545 U.S. 844, 864 (2005).
Concord advances three objectives for the Spirit of the Sea‐
son and the Spectacular generally. One is to provide a cultural
education about December holidays, evidenced by the inclu‐
sion, even if brief, of songs to represent Hanukkah and
Kwanzaa. In the 2015 version, before the musical numbers a
student reads a short description of each holiday. We have rec‐
ognized the educational role played by explanations such as
the narratives here. Books II, 401 F.3d at 866 (finding a proper
educational purpose for a display containing the Ten Com‐
mandments and secular texts, accompanied by explanations);
see also Ind. Civil Liberties Union v. O’Bannon, 259 F.3d 766, 773
(7th Cir. 2001) (finding that a similar display failed the en‐
dorsement test in part because “the planned monument
lack[ed] any marker explaining why these particular texts”
were put together).
Noting that the Jewish and African‐American holidays
were added only in response to litigation, plaintiffs reject the
sincerity of this stated aim. They allege that the musical direc‐
tor’s lack of research on the holidays (including the awkward
fact that “Ani Ma’amin” is a Jewish song but not one specifi‐
cally about Hanukkah) underscores the fact that cultural ed‐
ucation was not truly Concord’s aim. The purpose test “does
not require us to evaluate the quality or sufficiency of the his‐
torical analysis” at issue. Books II, 401 F.3d at 866. And plain‐
tiffs are correct that Hanukkah and Kwanzaa are given much
shorter shrift than Christmas by song count. That in itself does
not tell us too much, though. Nothing in the Constitution re‐
quires each holiday to get exactly the same number of minutes
18 Nos. 17‐1683 & 17‐1591
on stage. That said, the plaintiffs have a point when they say
that cultural education could be seen as an ex post justification.
The school’s other two asserted purposes rest on sturdier
ground. Concord puts on the program each year both to en‐
tertain the audience and to provide pedagogical opportuni‐
ties for Concord’s performing‐arts students. The show origi‐
nally was based on the Radio City Rockettes’ Christmas Spec‐
tacular, after a marching band field trip to New York City. As
one of a few productions put on by the department each year,
the Spectacular provides many ways for students to grow.
They learn challenging music and choreography. They go
through the process of auditioning for solos and small group
numbers. They design and create costumes, props, and sets.
They stage lighting. They get the experience of performing
live for large crowds. And younger students, who are bussed
over for a performance of the show’s first half, might have
their interest in the department piqued. The plaintiffs seem to
concede that these legitimate purposes are reasons to have a
winter performance in general. Their only point is that these
purposes do not justify the religious elements of the second
half. But the Establishment Clause does not require schools to
tailor their conduct narrowly to the stated aim. It mandates
only that a religious purpose cannot be the primary motiva‐
tion.
And here the district court reasonably concluded that it is
not. The current Spectacular is primarily entertainment and
pedagogy. The nativity scene, which was problematic in the
2014 and proposed versions, is no longer the second half’s
main event. Instead, as we already have said, it accompanies
just one song, serving the same aesthetic purpose as the im‐
ages projected on screens and other visuals. The second half
Nos. 17‐1683 & 17‐1591 19
taken as a whole provided musicians and singers multiple op‐
portunities to learn pieces and perform. This would have been
an easier case if the Christmas Spectacular had devoted a
more proportionate amount of stage time to other holidays.
But ultimately, we agree with the district court that in 2015
Concord sincerely and primarily aimed to put on an enter‐
taining and pedagogically useful winter concert. We thus find
the 2015 iteration of the Spectacular constitutional no matter
which lens we use for evaluation.
III
With this much of a victory under its belt, Concord would
like more. It asserts that because it cured the Spectacular’s al‐
leged constitutional defects with the current (and intended fu‐
ture) version of the show, the plaintiffs’ claims regarding the
2014 and proposed versions became moot. The district court
properly rejected this argument, as we now explain.
A claim becomes moot, and thus strips a court of jurisdic‐
tion under Article III, “[w]hen a party with standing at the
inception of the litigation loses it due to intervening events.”
Parvati Corp. v. City of Oak Forest, 630 F.3d 512, 516 (7th Cir.
2010) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000)). A case becomes moot if
events make it “absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.” United
States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203
(1968). The party asserting mootness bears the “heavy” bur‐
den of proof on this “stringent” standard. Friends of the Earth,
528 U.S. at 189. A defendant’s voluntary cessation of chal‐
lenged conduct does not necessarily render a case moot. City
of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). But
20 Nos. 17‐1683 & 17‐1591
if a government actor sincerely self‐corrects the practice at is‐
sue, a court will give this effort weight in its mootness deter‐
mination. Wis. Right to Life, 366 F.3d at 492.
Concord represents that it plans to continue presenting the
2015 version of the Spectacular. End of dispute, it concludes.
It supports this alleged commitment with the sworn declara‐
tion of Superintendent John Trout. In his affidavit, Trout
states, “[T]he community, the School Board, administrators,
teachers, parents, and students engaged in a variety of infor‐
mal discussions regarding the program on a going forward
basis.” The conversations took place “at the local park, over
the water cooler, and across the fence and resulted in what
appeared to be a consensus that the program was a success
and that the changes should be made permanent.”
Concord compares what it calls the “express commit‐
ments” in Trout’s affidavit to our decision in Wisconsin Right
to Life. In that case, a state campaign finance law remained on
the books though it had been declared unconstitutional. Id. at
487. A state board wrote in a letter to the plaintiff that the law,
which had never been enforced, would not be enforced
against it. Id. at 488. The board also posted online that the stat‐
ute was unconstitutional. Id. Trusting in the state agency’s sin‐
cere self‐correction, we found that the case was moot. Id. at
492.
The superintendent’s informal assurances fall short of the
board’s action in Wisconsin Right to Life. We have previously
resisted labeling cases moot in the face of similar promises. In
Doe ex rel. Doe v. Elmbrook School District, 658 F.3d 710 (7th Cir.
2011) (“Elmbrook I”), the school’s superintendent and principal
represented that they did not intend to hold the graduation
ceremony in a church again, though at oral argument the
Nos. 17‐1683 & 17‐1591 21
school hedged by saying that it would not “rule out using the
Church in the future should the need arise.” Id. at 720. We
held that the school failed to establish mootness because it did
not adopt a policy formally prohibiting the use of churches
for graduation. Id. at 720–21; Elmbrook II, 687 F.3d at 842 (va‐
cating Elmbrook I but adopting the original panel’s justiciabil‐
ity analysis). The Supreme Court has also taken a strict ap‐
proach to voluntary cessation. Recently the Court found that
a governor’s announcement of voluntary cessation was insuf‐
ficient to meet the heavy burden required to moot a case. Trin‐
ity Lutheran, 137 S. Ct. at 2019 n.1. That case involved a chal‐
lenge to a Missouri agency’s policy of categorically disquali‐
fying religious organizations from grant funding. Though
“the Governor of Missouri announced that he had directed
the Department to begin allowing religious organizations to
compete for and receive Department grants on the same terms
as secular organizations,” there was nothing preventing the
agency from reinstating its old policy at any time. Id.
As in Elmbrook and Trinity Lutheran, we cannot give defin‐
itive weight to the superintendent’s statements. Trout equivo‐
cates in his affidavit that the changes should be adopted per‐
manently because of the apparent consensus. But there is no
evidence that any change was actually made. Though the
school board had the authority to adopt official policies, IND.
CODE § 20‐26‐5‐4(a)(18), Concord, like Elmbrook, failed to
document in any way its decision to make the changes per‐
manent. And despite Trout’s assertion that he decided along
with the school board to make the changes permanent in De‐
cember 2015, the minutes of the school board meetings from
December 2015 and January 2016 contain no discussion of the
Christmas Spectacular. See IND. CODE § 5‐14‐1.5‐1 (requiring
public agencies, including schools, to conduct official action
22 Nos. 17‐1683 & 17‐1591
openly). Though the district court determined that Trout was
sincere in his affidavit, there is no guarantee that a future su‐
perintendent would take the same stance. See Boyd v. Adams,
513 F.2d 83, 89 (7th Cir. 1975) (determining that a challenge
was not moot since a new decision‐maker could “resurrect the
old procedure in the future”).
In an attempt to bolster the credibility of the superinten‐
dent’s stated intentions, Concord cites the deposition testi‐
mony of Scott Spradling, the school’s music director. Spra‐
dling stated that the changes to the 2015 program were going
to be made permanent. He made this promise, however, before
the preliminary injunction was issued, meaning that he was
referring to the changes in the proposed show—not the 2015
show. Concord also refers to its Rule 68 Offer of Judgment. In
late December 2015, the school district offered permanently to
enjoin the use of biblical readings and a living nativity scene
in exchange for plaintiffs’ agreement not to pursue any fur‐
ther relief. As the district court noted, an offer of judgment is
a litigation tactic, not a binding future commitment. Plaintiffs
rejected the deal, at which point it was dead. We have no rea‐
son to infer that Concord will adhere to its terms without any
consideration from the other side. See FED. R. CIV. P. 68(b) (un‐
accepted offers are generally inadmissible). Finally, we place
little weight on the fact that Concord no longer defends the
constitutionality of the 2014 or proposed versions. The school
was still considering an appeal of the preliminary injunction
ruling in May 2016, five months after the superintendent and
school board allegedly made the 2015 version permanent.
This timing undercuts any inference that the district had in‐
deed given up any claim of right to return to the earlier ver‐
sions.
Nos. 17‐1683 & 17‐1591 23
It is easy to envision the school bringing back the nativity
scene of Spectaculars past given the Concord community sen‐
timent. A Facebook page entitled “Save Concord’s Christmas
Spec’s Nativity Scene” had over 7,000 likes. Hundreds of peo‐
ple wore t‐shirts specially printed for the occasion to a school
board meeting on the topic. Yard signs were made. Someone
even sent FFRF a death threat!
Concord has objected to the consideration of public opin‐
ion as part of the mootness analysis. But it was the school itself
that made public opinion relevant: Trout said consensus was
reached after speaking with “parents” and members of the
“community.” By looking at a factor that admittedly entered
into the school’s decision‐making, we are not impermissibly
imputing private citizens’ motives to government actors. Con‐
tra City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S.
188, 196 (2003). The fact that the superintendent took commu‐
nity members’ reactions to the 2015 show into account when
opting to retain the changes indicates that he may do so again.
That in turn undermines any comfort we might take in Con‐
cord’s assurances now that public opinion will be irrelevant
to its future decisions about the Spectacular’s content.
Though Concord describes its position as one of “repeated
and firm policy commitments,” it has failed to meet its strin‐
gent burden to establish mootness. Because the plaintiffs’
challenges to the 2014 and proposed versions remain live con‐
troversies, we need not decide the jurisdictional issue Con‐
cord raised—whether a suit for nominal damages alone is a
sufficiently justiciable controversy under Article III.
Finally, since the parties have not questioned the district
court’s decision on the merits or remedies for the claims relat‐
ing to the 2014 and proposed shows, they are not before us on
24 Nos. 17‐1683 & 17‐1591
this appeal. We thus refrain from any comment on those is‐
sues.
IV
The parties put us in the uncomfortable role of Grinch,
examining the details of an impressive high school
production. But we accept this position, because we live in a
society where all religions are welcome. The district court
found that the Christmas Spectacular program Concord
actually presented in 2015—a program in which cultural,
pedagogical, and entertainment value took center stage—did
not violate the Establishment Clause. We AFFIRM this
judgment.
Nos. 17‐1683 & 17‐1591 25
EASTERBROOK, Circuit Judge, concurring in the judgment.
The majority’s opinion applies recent decisions of this circuit
and various “tests” announced (often by less than a majori‐
ty) in some decisions of the Supreme Court. This makes it
hard to quarrel with the result. But as I think many of those
decisions incorrect, I do not join the opinion.
It is not sound, as a matter of history or constitutional
text, to say that a unit of state or local government “estab‐
lishes” a religion through an artistic performance that favor‐
ably depicts one or more aspects of that religion’s theology
or iconography. The Concord Community Schools would not
violate the Constitution by performing Bach’s Mass in B Mi‐
nor or Handel’s Messiah, although both are deeply religious
works and run far longer than the nativity portion of the
“Christmas Spectacular.” Performing a work of art does not
establish that work, or its composer, as the state song or the
state composer; no more does it establish a state religion.
The Supreme Court’s decisions permitting legislatures to
open their sessions with prayer show this. See, e.g., Greece v.
Galloway, 134 S. Ct. 1811 (2014).
It takes taxation or compulsory worship to establish a re‐
ligion; some form of coercion is essential. This is the view of
scholars who have investigated what the phrase “establish‐
ment of religion” meant in the Eighteenth Century, when
these words were adopted. See generally Leonard W. Levy,
The Establishment Clause: Religion and the First Amendment (2d
ed. 1994); Philip Hamburger, Separation of Church and State
89–107 (2002); Michael W. McConnell, Establishment and Dis‐
establishment at the Founding, Part I: Establishment of Religion,
44 Wm. & Mary L. Rev. 2105 (2003). Nothing about the
Christmas Spectacular affects anyone’s taxes or coerces any
26 Nos. 17‐1683 & 17‐1591
form of religious belief, expression, or attendance. That
should be enough to resolve this suit.
I have made these points before, and at greater length.
See American Jewish Congress v. Chicago, 827 F.2d 120, 128–40
(7th Cir. 1987) (dissenting opinion); Doe v. Elmbrook School
District, 687 F.3d 840, 869–72 (7th Cir. 2012) (en banc) (dis‐
senting opinion). Repetition would be otiose.
Although the Concord Community Schools have not vio‐
lated the Constitution, the judiciary’s performance is harder
to defend. Federal judges have picked through a perfor‐
mance to choose among elements with religious significance.
Preventing that sort of entanglement between the judiciary
and religious expression is a main goal of the First Amend‐
ment—yet we are at it again, playing the role of producer to
decide which material, representing what religious tradi‐
tions, may appear in a choral performance. Cf. Bormuth v.
Jackson County, 870 F.3d 494, 521–25 (6th Cir. 2017) (en banc)
(Sutton, J., concurring).