Metropolitan News-Enterprise


Thursday, July 26, 2018


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Ninth Circuit:

School Board Prayers Before Pupils Unconstitutional


By a MetNews Staff Writer


A school board policy of permitting prayers during portions of their meetings open to the public and attended by students contravenes the U.S. Constitution’s Establishment Clause, the Ninth U.S. Circuit Court of Appeals held yesterday.

The per curiam opinion—signed by Circuit Judges M. Margaret McKeown and Kim McLane Wardlaw and by District Judge Wiley Y. Daniel of the District Court for Colorado, sitting by designation—affirms an order by District Judge Jesus G. Bernal of the Central District of California enjoining the practice.

Bernal made the order after the Freedom from Religion Foundation, Inc. and various named and unnamed individuals involved with San Bernardino County’s Chino Valley Unified School District challenged the board’s practice of engaging in Christian prayer at its approximately 18 meetings every year.

Open Session

The prayers were usually led by a local clergy member, but sometimes were offered up by an audience volunteer or a board member.

The opinion notes that students were always in attendance at the regular board meetings, many of whom were required to be there for disciplinary or extracurricular reasons. The sessions were also broadcast on local television and open to any member of the public to attend.

In addition to the prayers, the opinion explains, board members would regularly invoke their Christian beliefs and read Bible passages at the open sessions. At one session, then-board President James Na even “urged everyone who does not know Jesus Christ to go and find Him.”

Not Legislative Prayer

The opinion says:

“The invocations to start the open portions of Board meetings are not within the legislative prayer tradition that allows certain types of prayer to open legislative sessions. This is not the sort of solemnizing and unifying prayer, directed at lawmakers themselves and conducted before an audience of mature adults free from coercive pressures to participate, that the legislative-prayer tradition contemplates.”

The board argued that its policy was analogous to the prayers offered up at the beginning of state legislative sessions and town board meeting across the country, a tradition which the U.S. Supreme Court has recognized as being accepted by the Constitution’s framers and not at odds with the Establishment Clause.

The opinion contrasts those traditional prayers, offered at sessions attended by mature adults who are free to come and go at will, with the prayers at the Chino Valley board meetings given in front of a captive audience of students.

Likening prayer at the board meetings with prayer in school, the court explained:

“The Board’s meetings are not solely a venue for policymaking, they are also a site of academic and extracurricular activity and an adjudicative forum for student discipline. Consequently, many members of the audience—and active participants in the meetings—are children and adolescents whose attendance is not truly voluntary and whose relationship with the Board is unequal.”

The opinion continues:

“Unlike a session of Congress or a state legislature, or a meeting of a town board, the Chino Valley Board meetings function as extensions of the educational experience of the district’s public schools. The presence of large numbers of children and adolescents, in a setting under the control of public-school authorities, is inconsonant with the legislative-prayer tradition.”

Historic Analysis Inappropriate

In reaching its decision, the panel declined to apply the historic analysis required by the U.S. Supreme Court cases Marsh v. Chambers (1983) and Town of Greece v. Galloway (2014). In those cases, it noted, the high court had dealt with legislative prayer in a context analogous to the adult-attended, voluntary legislative sessions accepted as permissible by the founding fathers and subsequent tradition.

Instead of that analysis, the panel applied the three-pronged test espoused in the 1971 Supreme Court case Lemon v. Kurtzman for determining whether the Establishment Clause has been violated.

Under the so-called Lemon test, a governmental practice must have a secular legislative purpose, must neither advance nor inhibit religion, and must not foster excessive entanglement with religion.

“Our Lemon analysis is sequential,” the opinion explains. “That is, if the action fails the first prong of Lemon, we need not analyze prongs two and three.”

The panel looked at the board members’ statements regarding their Christianity, and the policy that clergy were to be chosen to lead the invocation. It determined that, despite the board’s stated intent to solemnize the meetings, it had actually intended to promote its own brand of religious belief.

The opinion also notes that, even if the court were to reach prongs two and three of Lemon, the policy would fail them both as well.

“In sum, the existence of equally available secular means of accomplishing the Board’s stated purposes, coupled with the history of Christian prayer, demonstrates that the prayer policy’s purpose is predominantly religious in violation of the Establishment Clause,” the court said.

The case is Freedom from Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, No. 16-55425.

Robert H. Tyler of Tyler & Bursch LLP in Murietta argued before the panel in Pasadena for the school board. The plaintiffs were represented on appeal by David J. Kaloyanides of Chino.


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