August 2018 Newsletter – Community College Districts
Board Meetings and Prayer – Guidance from the Ninth Circuit
When does a prayer at a board meeting violate the First Amendment’s Establishment Clause? Does the urging at a public school board meeting for “everyone who does not know Jesus Christ to go and find Him” by a board member offend the First Amendment? Is it permissible for a board to identify a singular goal, “and that one goal is under God, Jesus Christ” when calling a meeting to order? These statements, and others, precipitated the matter of Freedom From Religion Foundation, Inc. v. Chino Valley Unified School Dist. Board of Education et al. (9th Cir. July 25, 2018, No. 16-55425.)
The school board argued that the board policy and practice fell within the “legislative-prayer tradition.” In prior US Supreme Court cases, several factors were identified to determine whether the practice of opening a legislative session with a prayer or invocation violated the Constitution. In part, the historical context of the prayer was considered where such practice would have been recognized and accepted by the Founding Fathers. (See Town of Greece v. Galloway (2014) 134 S.Ct. 1811.) Accordingly, prayer at the start of a state or town legislative session were within the historical tradition and did not offend the Establishment Clause. (See Marsh v. Chambers (1983) 463 US 783.) A number of other indicators are characteristically found in this legislative-prayer tradition – the prayer is intended to add gravity to the proceeding, invites the legislators to reflect on shared ideals, the audience is free to leave at any time, and consists of mature adults.
While the Ninth Circuit discussed the traditional legislative-prayer exception, it also dismissed it as inapplicable in the school board setting. Under the courts analysis, a public school or community college board are institutions “essentially unknown to the Framers.” The concept of state and local governing boards would have existed in the 1790’s, while the idea of a publicly funded school that provided universal access to public education would have been a fiction.
Instead, the Court focused on the Lemon test, the default analysis of whether a government entity has violated the Establishment Clause and the First Amendment. (Lemon v. Kurtzman (1971) 403 US 602.) Under Lemon, the actions or practice of a government entity must 1) have a secular purpose, 2) have a primary effect that neither advances nor inhibits religion, and 3) must not foster “excessive entanglement” with religion.
Here, the Ninth Circuit found that the Chino Valley board’s actions failed at the first step – the prayer policy did not have a secular purpose. While the board argued that the purpose was to add solemnity to the proceedings and acknowledge the diverse religious denominations within the district, the court found this argument unavailing. The Court indicated that the statements of a school official involved in the policies enactment can and should be considered when determining the purpose of the policy. Here, a board member stated, at a public board meeting, that the Board’s goal for the prayer policy was to further Christianity. Further, the boards policy was limited to a list of established religious organizations within the community, a limitation which excluded minority religions that may still have had practicing adherents in the area. Finally, the court found that the policies failure to recognize the non-religious beliefs of community members, including atheists and agnostics, undermined the validity of the board’s argument of a secular purpose.
The court also indicated that the policy and practice would have violated the second and third parts of the Lemon analysis, even if the secular purpose had been established. The prayers frequently “advanced” religion, and excessively entangled government and religion.
In granting an injunction, the Ninth Circuit observed that the only speech that the board is required to abstain from is that which would violate the Establishment Clause. Further, it was appropriate to specifically enjoin board members as the board controls its meetings and its district.
This case provides an opportunity for governing boards to examine their policies to ensure that, if a district is determined to maintain a tradition of offering an opening invocation, the practice does not extend into the realm of unconstitutional actions.
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