Prayer at School Board Meetings Many school boards wish to begin their meetings with a comment or remark to signify the solemnity of the occasion. Often, school board trustees conclude that a prayer is a fittingly solemn opening for a meeting. Prayer at school board meetings, however, is a controversial issue that many times brings with it the risk of litigation and dissent among members of the community. According to the First Amendment of the U.S. Constitution, the government is prohibited from establishing a religion. This means that the government must maintain strict neutrality, neither aiding nor opposing religion. The U.S. Supreme Court has exercised special vigilance over compliance with the Establishment Clause in elementary and secondary schools because “[f]amilies entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.”1 This ban on the government establishing a religion is precisely why opening a school board meeting with a prayer is so controversial. Two Lines of Analysis When courts analyze whether a school board may pray before a meeting, they must choose between two lines of analysis. They can either choose to use the analysis in Marsh v. Chambers, a Supreme Court case concerning prayer by a legislature, or they can apply the analysis articulated in several cases that involve establishment of a religion by a school district. Marsh v. Chambers Some courts have held that opening certain meetings of governmental bodies with a prayer is constitutional. In 1983, the United States Supreme Court upheld the practice of state legislatures opening each session with a prayer, even approving prayer led by a chaplain paid by the state.2 As support for its decision, the Court noted that the practice of opening sessions by legislative and other deliberative bodies with a prayer “is deeply embedded in the history and tradition of this country” and has “coexisted with the principles of disestablishment and religious freedom” from colonial times.3 The Court also concluded that the members of the First Congress did not view legislative prayers as a violation of the Establishment Clause because the Bill of Rights, including the First Amendment, was adopted a mere three days after the First Congress authorized the appointment of paid chaplains. The Court therefore concluded that legislative prayers did not violate the Establishment Clause. 1 2 3

Edwards v. Aguillard, 482 U.S. 578, 584 (1987). Marsh v. Chambers, 463 U.S. 783 (1983). Marsh v. Chambers, 463 U.S. 783, 786 (1983).

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In the past, some courts have used the Marsh reasoning and held that school boards may pray at the start of a meeting because those prayers are legislative prayers. For instance, in 1998, a federal court in California held that a school board’s practice of opening its meetings with a prayer did not violate the Establishment Clause.4 The court stated that “a [b]oard meeting is a meeting of adults with official business and policy making functions” and that a school board meeting does not present a situation in which the susceptibility of a child to indoctrination or peer pressure is a concern.5 The court rejected the argument that the presence of some students at the meeting required the issue to be analyzed like other issues involving religion in the school setting. Coles v. Cleveland Board of Education In 1999, however, the Sixth Circuit Court of Appeals in Coles v. Cleveland Board of Education came to a different conclusion regarding whether prayer at a school board meeting was permissible.6 Rather than applying Marsh, the court decided to analyze prayer before board meetings like other issues involving religion in the school setting. In support of its decision to apply that analysis, the court noted that students often appeared at board meetings to speak during the public comment portion of the meeting; the board addressed student grievances during its meetings; a student representative regularly sat on the board; and the board frequently invited students to its meetings to receive awards and give a few remarks to the audience. In light of the common presence of students at board meetings, the court decided that it must apply the reasoning appropriate for consideration of religion in the school setting. The test that courts most commonly use when analyzing religion in a school setting originates from Lemon v. Kurtzman.7 In Lemon, the United States Supreme Court articulated a three-prong test for determining when a religious practice in the school setting violates the Establishment Clause. Lemon stated that a government practice will not violate the Establishment Clause if (1) it has a secular purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not create an excessive entanglement of the government with religion. After applying these three prongs to the facts, the Coles court found that the prayers offered at the beginning of the district’s school board meetings failed all three prongs of the Lemon test; in other words, the prayer had no secular purpose, its principal or primary effect advanced or inhibited religion, and it created an excessive entanglement of the government with religion.8 Doe v. Indian River School District In 2011, the Third Circuit Court of Appeals overturned a decision by a district court that prayer at a school board’s meetings was legislative prayer and therefore constitutional.9 The Third Circuit disagreed, finding that “Marsh’s legislative prayer exception does not apply.” Rather, the court said, the line of cases analyzing religion in the school setting is appropriate. The court decided to follow 4 5

6 7 8 9

Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ., 11 F. Supp. 2d 1192 (C.D. Cal. 1998). Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ., 11 F. Supp. 2d 1192, 1197 (C.D. Cal. 1998) (quoting Coles v. Cleveland Bd. of Educ., 950 F. Supp. 1337, 1345 (N.D. Ohio 1996)). Coles ex rel. Coles v. Cleveland Bd. of Educ., 171 F.3d 369 (6th Cir. 1999)). Lemon v. Kurtzman, 403 U.S. 602 (1971). Coles ex rel. Coles v. Cleveland Bd. of Educ., 171 F.3d 369 (6th Cir. 1999). Doe v. Indian River Sch. Dist., 653 F.3d 256 (3d Cir. 2011).

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this line of reasoning because of the potentially coercive atmosphere of elementary and secondary schools; the nature of the relationship between the board and students in the school district; and the narrow historical context of Marsh, within which the school board’s meetings did not fall. Because it was following the analysis of religion in a school setting, the Third Circuit applied the Lemon test. The court found that the board’s meeting prayer policy did not pass the Lemon test because its primary effect was to advance religion and because it fostered excessive government entanglement in religion. The court also applied a second test commonly used in cases alleging violation of the First Amendment by governmental entities called the “endorsement test.” The endorsement test is similar to the second prong of the Lemon test, which analyzes whether a government practice has the effect of “communicating a message of government endorsement or disapproval of religion.” The court found that the prayer policy did not pass the endorsement test because its primary effect was to communicate “a government endorsement or disapproval of religion.” Fifth Circuit Guidance In 2006, a panel of the Fifth Circuit Court of Appeals issued a decision regarding a local school board’s practice of opening board meetings with a prayer.10 The district in the case, Tangipahoa Parish in Louisiana, regularly began school board meetings with a prayer given by an individual chosen by a board member. The chosen individuals included school officials, employees, and students, as well as ministers, all of whom were Christian. John Doe, a parent of two boys who attended the parish schools, sued the board and several school officials, claiming that the prayers at the meetings violated the Establishment Clause.11 After the lawsuit was filed, the board unanimously rejected a written policy limiting the prayers to board members and requiring those prayers to be non-sectarian. The federal district court held that the prayers did not fall within the legislative prayer exception allowed by Marsh and failed the test outlined in Lemon. The court enjoined the board from beginning its meetings with a prayer, and the board appealed. On appeal, because the school board admitted that the prayers would fail the Lemon test, the Fifth Circuit Court of Appeals assumed, but did not decide, that the Marsh standard applied.12 The court noted that the prayers challenged in Marsh did not include Christian references and that the U.S. Supreme Court has found the Marsh exception to be narrow and to apply only to nonsectarian and non-proselytizing legislative invocations. In this case, the court found the prayers to be sectarian such that they fell outside of the exception in Marsh. In the eyes of the

10

11

12

Doe v. Tangipahoa Parish Sch. Bd. (Tangipahoa II), 473 F.3d 188 (5th Cir. 2006), vacated, 494 F.3d 494 (5th Cir. 2007) (en banc) (vacating on jurisdictional grounds). Doe v. Tangipahoa Parish Sch. Bd. (Tangipahoa I), No. 03-2870, 2005 WL 517341, at *1 (E.D. La. Feb. 24, 2005) (not designated for publication), vacated, 494 F.3d 494 (5th Cir. 2007) (en banc) (vacating on jurisdictional grounds). Doe v. Tangipahoa Parish Sch. Bd. (Tangipahoa II), 473 F.3d 188 (5th Cir. 2006), vacated, 494 F.3d 494 (5th Cir. 2007) (en banc) (vacating on jurisdictional grounds).

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court, the references to Jesus in the prayers constituted more than allowable ceremonial deism, and the board’s rejection of an attempt to make the prayers less focused on Christianity showed the board’s preference for Christianity above other religions. The court did not determine whether some other type of prayer would be permissible, however. After the court issued this decision, it then withdrew it on appeal. After a rehearing en banc, the Fifth Circuit concluded that the plaintiffs in the case lacked standing to bring the lawsuit.13 This muddied the water for Texas school districts, as the court issued an opinion in which it revealed what kind of analysis it might apply to prayers before school board meetings, and then subsequently removed the ability of the case to set any kind of precedent. U.S. Supreme Court May Have Diluted the Two Lines of Analysis Town of Greece v. Galloway14 In 2014, the United States Supreme Court issued an opinion that has caused some to question whether courts should apply the Marsh analysis to prayers delivered before school board meetings. In Town of Greece v. Galloway, the Supreme Court considered a situation in which the town board of Greece, New York, invited local clergy to deliver an invocation at the start of each board meeting. The Court followed the Marsh line of reasoning and held that the town’s prayer practice was constitutional as part of the practice of legislative bodies opening their meetings with a prayer. In its opinion, the Court acknowledged that whether a governmental body has compelled its citizens to engage in a religious observance is a fact-sensitive question that requires consideration of both the setting in which the prayer arises and the audience to whom it is directed. The Court concluded that the principal audience for the invocations before the town board was not the public but the lawmakers themselves. The Court also held that legislative prayer did not have to be generic or nonsectarian, as Marsh nowhere suggested that the constitutionality of legislative prayer turned on the neutrality of its content. In response to claims that the prayers were offensive and thus coercive, the Court stated that offense did not rise to the level of coercion. The citizens were free to leave the room during the invocation—a choice, the Court said, that did not represent an unconstitutional imposition on mature adults. Justice Kagan authored a dissent in which she agreed with the majority that the suit involved a fact-sensitive question that required consideration of both the setting in which the prayer arose and the audience to whom it was directed—but Kagan disagreed with the majority that the setting and audience were similar to that approved in Marsh. Kagan noted that the town board’s meetings involved participation by ordinary citizens, with the clergy who gave the invocations facing the citizens, not the board, and inviting the citizens to join him or her in prayer. Kagan also pointedly noted that the group of citizens that the clergy faced could include children.

13 14

Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494 (5th Cir. 2007). Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).

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Since Town of Greece, at least one federal district court has refused to extend the Marsh analysis to settings other than a meeting of a legislative body.15 In its opinion, the court noted that the Supreme Court has not extended Marsh to non-legislative prayer practices. Indeed, the court cited instances in which courts have not applied the Marsh analysis, including prayer at school board meetings, as evidence of how rarely courts should apply the Marsh analysis. We do not have any clear guidance, however, on whether courts may ever apply the Marsh analysis when considering prayer before a school board meeting. What Have the Courts Said Since Town of Greece? Most Recent Jurisprudence from Texas Federal Courts In 2016, a federal district court in Texas considered Birdville ISD’s practice of opening its school board meetings with a prayer.16 The American Humanist Association and Isaiah Smith filed suit, alleging that this practice violated the Establishment Clause of the First Amendment and seeking an injunction preventing the district from allowing prayers as part of any schoolsponsored event, including board meetings. The determinative issue, according to the court, was whether school board meetings are more similar to legislative sessions or to a high school graduation or other school event, where an invocation would violate the Establishment Clause. The court stated that it was persuaded that a school board was more like a legislature than a school classroom or school event and that, therefore, opening a school board meeting with a prayer did not violate the Establishment Clause. The court noted, however, that the use of the prayers to proselytize Christianity would be improper. The evidence did not show that citizens who attended the school board’s meetings were coerced to support the prayer or singled out if they did not participate. The court also noted that Smith was an adult and thus should not be influenced by the prayer. Finally, the court held that the district’s new policy, allowing students to choose the topic on which they would speak and not providing for prior review, showed that the district was trying to distance itself from establishing a religion, not moving closer to doing so. Even if the students’ expressions were Christian in nature, that did not show discrimination against, or coercion of, others who did not embrace those beliefs. The court therefore granted the district’s motion for summary judgment. Conclusion Given the confusing history of the legality of prayer before school board meetings, what is a school board to do if it wishes to pray before board meetings? Essentially, the board needs to consult very carefully with its local counsel and weigh all of the pros and cons. The legal risks associated with the practice are obvious—courts around the country, and even in our own Fifth Circuit, are not consistent in their analysis. Choosing not to pray at school board meetings allows a school district to

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Hewett v. City of King, 29 F. Supp. 3d 584 (M.D.N.C. 2014). American Humanist Ass’n v. Birdville Indep. Sch. Dist., No. 4:15-CV-377-A (N.D. Tex. 2016).

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avoid the time and expense of confronting a legal challenge. School boards that nevertheless wish to begin board meetings with a solemn opening may consider opting for a moment of silence, modeled after the minute of silence that begins each school day in Texas schools. A moment of silence, during which attendees may pause for meditation, prayer, reflection, or any other silent activity has been upheld as constitutional in the public school setting.17

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This document is provided for educational purposes only and contains information to facilitate a general understanding of the law. It is neither an exhaustive treatment of the law on this subject nor is it intended to substitute for the advice of an attorney. It is important for the recipient to consult with the district’s own attorney in order to apply these legal principles to specific fact situations. Updated January 2017

17

Croft v. Governor of Tex., 562 F.3d 735 (5th Cir. 2009).

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