Still between a Rock and a Hard Place? The Constitutionality of School Board Prayer in the Wake of Town of Greece

Transcription

1 Still between a Rock and a Hard Place? The Constitutionality of School Board Prayer in the Wake of Town of Greece Phillip Buckley, J.D., Ph.D. Department of Educational Leadership Southern Illinois University Edwardsville (pbuckle@siue.edu) Education Law Association Annual Conference, 2016

2 1 Still between a Rock and a Hard Place? The Constitutionality of School Board Prayer in the Wake of Town of Greece INTRODUCTION The issue of opening prayers at public school board meetings has received revived attention in the wake of the US Supreme Court s 2014 decision in Town of Greece, NY v. Galloway. 1 In Town of Greece, the Court held that its decision in Marsh v. Chambers, 2 which upheld the tradition of opening prayers in the legislative context, applied to opening prayers at town council meetings. Prior to Town of Greece, the balance of legal authority had held that opening school board meetings with a prayer, particularly a sectarian prayer and/or a prayer initiated or conducted by the board or its members, violated the Establishment Clause. 3 While the Supreme Court has not ruled directly on the question, federal appellate court decisions handed down prior to the Court s decision in Town of Greece strongly support this position. 4 However, the Court s decision in Town of Greece has the potential to pave the way for judicial approval of prayer perhaps even sectarian prayer at school board meetings under certain circumstances. In an opinion issued fifteen years before the decision in Town of Greece, the Sixth Circuit asserted that school board prayer put the court squarely between the proverbial rock and a hard place. The rock is Lee v. Weisman, holding that opening prayers at high school graduation ceremonies violate the Establishment Clause of the First Amendment. The hard place is Marsh v. Chambers, ruling that opening prayers are constitutionally permissible at sessions of a state legislature S. Ct U.S. 783 (1983). 3 The Clause reads: Congress shall make no law respecting an establishment of religion. U.S. Const. amend. I. The US Supreme Court held in Everson v. Board of Education of Ewing, 330 U.S. 1 (1947) that the Establishment Clause applied to the state governments. Because public school districts, teachers, and administrators are arms or agents of the state governments, the Clause applies to them. 4 Doe v. Indian River School District, 653 F.3d 256 (3rd Cir. 2011); Coles Ex Rel. Coles v. Cleveland Bd. of Educ., 171 F. 3d 369 (6th Cir. 1999); Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188 (5th Cir. 2006) and Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ., 52 F. App x 355 (9th Cir. 2002). 5 Citations omitted.

3 2 In the wake of Town of Greece, courts remain faced with fundamentally the same question as that faced by the Sixth Circuit: Are the prayers in question more like school prayers prohibited by Lee or closer to legislative prayers permitted by Marsh? 6 However, the Court s decision in Town of Greece muddied the waters in at least two ways. First, it broadened the concept of legislative prayer to encompass opening prayers at town board meetings. Second, it established that sectarian prayer in the legislative or deliberative body context is not per se unconstitutional. Thus, to use the questionable metaphor 7 employed by the Sixth Circuit, courts remain between a rock and a hard place; however, the hard place has changed somewhat. In the wake of Town of Greece, courts must decide if school board prayer is governed by the Supreme Court s school prayer precedent (the rock) or the Court s decisions upholding opening prayers at the Nebraska state legislature (Marsh) and the meetings of the town board in Greece, New York. In this paper, I examine the issue of school board prayer in the wake of Town of Greece. Part one of the paper outlines the legal status quo ante, particularly the two approaches taken at the federal appellate level in striking down school board prayer. These two approaches differed in terms of how the judges answered the fundamental question outlined above: Are the prayers in question more like school prayers prohibited by Lee or closer to legislative prayers permitted by Marsh? 8 Under the first approach, school board prayer was examined and struck down under the Supreme Court s school prayer precedent not the Court s decision in Marsh. Under the second approach, the judges assumed that school board prayer should be governed by Marsh but nonetheless struck down the prayers in question due to their sectarian nature. In part two of the paper, I examine the Supreme Court s decision in Town of Greece and consider how that decision impacts the status quo ante discussed in part one. In this part of the paper, I first consider the argument that Town of Greece supports the constitutionality of school board prayers. I then present the counterargument, specifically focusing on US District Court Judge Jesus Bernal s February 2016 decision in Freedom from Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education. 9 In the conclusion of the paper, I explain why 6 Coles, 171 F. 3d at The metaphor is questionable to the extent that it suggests that school board prayer faces courts with a choice between two bad or undesirable outcomes. The Supreme Court s precedent may make it difficult to decide which line of cases to apply to school board prayer but there is no reason to characterize the decision as requiring a choice between two bad options. 8 Coles, 171 F. 3d at U.S. Dist. LEXIS

4 3 the counterargument better reflects the letter and the spirit of the views put forward by Justice Kennedy in Lee and Town of Greece. I. THE LEGAL STATUS QUO ANTE: TWO CIRCUIT COURT APPROACHES TO STRIKING DOWN SCHOOL BOARD PRAYER Prior to the US Supreme Court s ruling allowing opening prayers at town council meetings in Town of Greece, four federal appellate circuit courts had struck down prayer at school board meetings. However, these courts took different approaches, approaches that are impacted in different ways by the Court s decision in Town of Greece. In Doe v. Indian River School District 10 and Coles v. Cleveland Bd. of Educ., 11 the Third and Sixth Circuits respectively took the position that the Court s decisions dealing with and striking down prayer in the public school context should apply to prayer at school board meetings. Applying that precedent, these courts ruled against the two school boards that had opened their meetings with prayer. In contrast, in its decision in Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ., 12 the Ninth Circuit assumed, without deciding, that the Supreme Court s decision in Marsh applied to prayer in the school board context but found that the prayer practice in question nonetheless was unconstitutional. The author of the opinion for the Fifth Circuit Court of Appeals in Doe v. Tangipahoa Parish Sch. Bd. 13 did the same. 14 A. Approach One: School Board Prayer is Unconstitutional under the Supreme Court s School Prayer Precedent For the presiding judges of the Third and Sixth Circuits, the Supreme Court s school prayer precedent, not the Court s decision in Marsh, provided the appropriate legal framework for determining the constitutionality of prayer at school board meetings. Under this precedent, the Court has addressed the constitutionality of prayer in the public school context, striking down F.3d 256 (3rd Cir. 2011) F. 3d 369 (6th Cir. 1999) F. App x 355 (9th Cir. 2002) F.3d 188 (5th Cir. 2006). 14 This opinion for the Fifth Circuit was later vacated and the case remanded with instructions to dismiss for lack of standing.

5 4 prayer at public school graduation ceremonies 15 and prayer 16 and Bible readings 17 at the beginning of the school day. For various reasons, deciding to apply this precedent to school board prayer, particularly the Court s decision striking down prayer at graduation ceremonies in Lee v. Weisman, makes it highly unlikely that a court will uphold school board prayer. The opinions from the Third and Sixth Circuit cases made similar arguments regarding why, in the words of the Sixth Circuit, the prayers in question [are] more like school prayers prohibited by Lee than legislative prayers permitted by Marsh. 18 The most significant factor in both decisions was the extent to which public school students are present at and, at times, actively involved in school board meetings. As noted in the decisions, students attended the board meetings for various reasons, including: to receive awards 19 ; to impart information 20 ; to participate in debates regarding school business 21 ; and to participate in their own disciplinary hearings. 22 Overall, while public school students might attend the meetings of other deliberative bodies, students not only attend school board meetings, but actively participate in the board s agenda. 23 For many of these students, attendance is more obligatory than voluntary. 24 And some of these students also would feel pressure to participate in the prayer exercise. 25 A second important factor cited in these decisions is the fact that boards are inextricably intertwined with the public school system. 26 School board meetings take place on school property 27 and the 15 Lee v. Weisman, 505 U.S. 577 (1992). 16 Engel v. Vitale, 370 U.S. 421 (1962). 17 Abington School Dist. v. Schempp, 374 US 203 (1963). 18 Coles, 171 F. 3d at See id. at 372: The school board also regularly invites students to attend its meetings in order to receive awards. 20 See id. at 383: At least one student actually sits on the board to provide a student's perspective on the issues before it. 21 See id. at 382: [S]tudents are directly involved in the discussion and debate at school board meetings. 22 See id. at 383: Students wishing to challenge disciplinary action must appear before the board. 23 Id. at 382: Simply put, students do not sit idly by as the board discusses various school-related issues. School board meetings are therefore not the equivalent of galleries in a legislature where spectators are incidental to the work of the public body; students are directly involved in the discussion and debate at school board meetings. 24 See Indian River School District, 653 F.3d at 279: A student wishing to comment on school policies or otherwise participate in the decision-making that affects his or her education must attend these meetings. 25 See id. at 378: In these circumstances, it is particularly difficult to imagine that a student would not feel pressure to participate in the practice, or at least appear to agree with it--particularly a student appearing in front of the Board to contest a disciplinary action. 26 Coles, 171 F. 3d at Id.

6 5 business of school boards is restricted to one thing: public education. 28 For these reasons, the Sixth and Third Circuit 29 panels found that the school prayer precedent, especially the Court s decision in Lee, applied to the practice of school board prayer. 30 Because of the demanding standard of review applied in the school prayer cases, once a court determines that that line of precedent applies to school board prayer, the outcome is nearly a foregone conclusion. In the words of the Coles decision, The Supreme Court s Establishment Clause jurisprudence has been remarkably consistent in sustaining virtually every challenge to government-sponsored religious expression or involvement in the public schools. 31 Because of the presence of children and adolescents, government-sponsored religious expression inside public schools is highly suspect and subject to exacting review by the courts. While a full examination of Establishment Clause law is beyond the scope of this article, a discussion of the central Establishment Clause principles and how they have been applied to prayer in the public school context is helpful in understanding the implications of the decision to apply them to school board prayer. 1. The Establishment Clause and Government-Sponsored Religious Expression in Public Schools In general, the precedent that applies the Establishment Clause to government-sponsored religious expression has presented courts with a tricky line to walk. The challenge of addressing concerns regarding governmental interference with and promotion of religion while also respecting the traditional importance of religion in American society has led to a complex, tension-riddled legal framework. While that complexity and tension do not disappear when this framework is applied to the public school context, the principles promulgated in the Establishment Clause precedent lend themselves to a degree of clarity in that context. 28 See Indian River School District, 653 F.3d at 278: Second, regardless of whether the Board is a deliberative or legislative body, we conclude that Marsh is ill-suited to this context because the entire purpose and structure of the Indian River School Board revolves around public school education. 29 See id. at 282: In sum, because we find that the type of potentially coercive atmosphere the Supreme Court asks us to guard against is present here, because of the nature of the relationship between the Board and Indian River students and schools, and in light of Marsh's narrow historical context, we hold that the District Court erred in applying the legislative exception to the Indian River Prayer Policy. 30 In his opinion concurring in the judgment in part and dissenting in the judgment in part in Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188, Fifth Circuit Judge Carl E. Stewart largely echoed the views of the Sixth and Third Circuits. 31 Coles, 171 F. 3d at 377.

7 6 In Lemon v. Kurtzman, 32 the US Supreme Court articulated a three-pronged test to be used in cases involving the Establishment Clause: [T]o satisfy the Establishment Clause, a governmental practice must (1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion. 33 Courts have relied on all of these prongs in striking down state action involving public education. However, in cases involving government-sponsored religious expression in public schools, the issue of effect has emerged as most central while the requirement that government-sponsored religious expression have a secular purpose has been of secondary importance. While of less central importance than effect, entanglement also has provided the basis for decisions striking down state-sponsored religious conduct or expression. Specifically, because of the risk of political divisiveness, the state may not associate or identify itself with religion or a particular religion. One reason that effect has proven more central in such cases than purpose is that the secular purpose requirement is a relatively low hurdle: the case law establishes that state action violates the purpose prong from Lemon only if it lacks some genuine secular purpose. In other words, state action that has a religious motivation or purpose may still pass judicial scrutiny if it also has a secular purpose. 34 While courts have acknowledged that prayer may have secular purposes, often judges have been skeptical of government claims along those lines. Nonetheless, although early school prayer decisions (decisions decided before Lemon) pointed to the obvious religious purpose of prayer in striking down school prayer, the relative ease with which the secular purpose requirement may be met has led subsequent decisions to focus more on impermissible effects. Another reason that the purpose prong has played a less significant role in school prayer cases is the obvious religious effect of prayer, particularly in the school context. After all, a prayer policy leads to the performance of quintessentially religious conduct. When considering the effects prong of Lemon in the public school context, courts have focused on the issues of U.S. 602 (1971). 33 Lee v. Weisman, 505 U.S. 577, (1992). 34 One thing that remains somewhat unclear in the case law is whether the secular purpose must have some relative weight within the overall purpose or motivation for the state action in question. Must the secular purpose be a significant motivator? An important motivator? May the secular purpose be greatly outweighed by the religious purpose(s)? See Part I of Buckley & Osborne (in press, 2016) for a more detailed discussion of this issue.

8 7 endorsement and coercion. Although endorsement and coercion are not explicit parts of the three-pronged Lemon test, they have emerged as two central concerns regarding governmentsponsored expression in the public school context. 35 The concern with endorsement emerged in a concurring opinion by US Supreme Court Justice Sandra Day O Connor 36 and subsequently was embraced by a majority of the Court in two cases involving public schools. 37 As O Connor explained in her concurrence, Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. 38 The focus on coercion emerged in the Supreme Court s decision in Lee v. Weisman, a case involving prayer at public school graduation ceremonies. In his opinion for the Court in Lee, Justice Anthony Kennedy stated, Government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so. 39 It is here where state religious conduct in the public school context becomes more suspect than it is in the general context. Because children and/or adolescents are more impressionable and more easily subject to coercion, state-sponsored religious expression that might pass constitutional review in a general public context may be struck down if it occurs in the public school context, especially if younger children are present. Regarding the issue of endorsement, one federal district court judge has argued, When school children are involved, the standard used to evaluate the risk that viewers of a religious symbol might infer governmental 35 Courts sometimes treat the Lemon prongs and the issues of endorsement and coercion as separate tests. For example, one judge opted to apply the endorsement test and then the purpose and effect prongs from Lemon, an approach he referred to as the belt and suspenders approach (Kitzmiller v. Dover, 400 F. Supp. 2d 707, 714 (2005)). At other times, the endorsement and Lemon prongs are rolled together. In Lee, Justice Kennedy seemed to set Lemon aside to focus on coercion while, at the same time, noting that the case did not raise questions regarding the validity of Lemon. In its decision striking down school board prayer in Coles, the Sixth Circuit stated that, Based on the above review of the Supreme Court's school prayer cases, two overriding principles can be discerned. The first is that coercion of impressionable young minds is to be avoided, and the second is that the endorsement of religion is prohibited in the public schools context. 171 F. 3d at Lynch v Donnelly, 465 U.S. 668 (1984) (O Connor, J., concurring). 37 Zelman v Simmons-Harris, 536 U.S. 639 (2002); and Lee, 505 U.S. 577 (1992). 38 Lynch, 465 U.S. at 688 (1984) (O Connor, J., concurring). 39 Lee, 505 U.S. at 587.

9 8 endorsement of religion must be more rigorous than that used to validate the public display of a crèche. 40 Regarding coercion, another federal district judge has noted, subtle and indirect pressure, such as social pressure from peers to conform to school-set norms, can constitute coercion, even if students are otherwise free to opt out of the activity. 41 The heightened concern with endorsement and coercion in the public school context makes it more likely that government-sponsored religious expression will be struck down in that context than outside that context. Likewise, the concern for political divisiveness related to government entanglement with religion is heightened in the public school context. As Justice Kennedy explained in Lee, Divisiveness, of course, can attend any state decision respecting religions, and neither its existence nor its potential necessarily invalidates the State's attempts to accommodate religion in all cases. The potential for divisiveness is of particular relevance here though, because it centers around an overt religious exercise in a secondary school environment where, as we discuss below, subtle coercive pressures exist and where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation. 42 The Supreme Court referenced the potential for divisiveness at the juncture of religion and public education decades earlier. Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in the strife of sects. The preservation of the community from divisive conflicts, of Government from irreconcilable pressures by religious groups, of religion from censorship and coercion however subtly exercised, requires strict confinement of the State to instruction other than religious, leaving to the individual's church and home, 40 Clever v. Cherry Hill Tp. Bd. of Educ., 838 F. Supp. 929, 940 (D.N.Y. 1993). Also see Freedom from Religion Found., Inc. v. Connellsville Area Sch. Dist., 2015 U.S. Dist. LEXIS (W.D. Pa. Aug. 28, 2015), especially and note Eklund v. Byron Union Sch. Dist., 2003 U.S. Dist. LEXIS 27152, 21, aff d, 154 Fed. Appx. 648, 2005 U.S. App. LEXIS (2005). 42 Lee, 505 U.S at

10 9 indoctrination in the faith of his choice.in no activity of the State is it more vital to keep out divisive forces than in its schools, to avoid confusing, not to say fusing, what the Constitution sought to keep strictly apart Back to School Board Prayer Since the courts in Doe v. Indian River School District 44 and Coles v. Cleveland Bd. of Educ. 45 held that the Supreme Court s school prayer precedent applied to cases involving prayer at school boards, it is not surprising that the school boards lost these two cases. The courts in these cases took somewhat different but nonetheless overlapping approaches to applying that precedent to school board prayer. Each court applied both the Lemon three-pronged test and the endorsement test. While the Sixth Circuit found that the prayer policy violated Lemon s purpose prong, 46 the Third Circuit accepted the Board s claim that the purpose of the prayer was to solemnify the meetings. 47 Regarding effect, both courts focused on the endorsive quality of the prayers in question. The facts of the cases provided the courts with ample support for the argument that a reasonable person would find that the prayers in question endorsed religion, specifically Christianity. First, the prayers in each case were highly sectarian, with repeated, explicit references to God and Jesus. 48 Second, in the Indian River case, the court noted that the Board s Prayer Policy was drafted in an atmosphere of contention and hostility towards those who wanted prayers to be eliminated from school events. 49 By taking sides in that debate, the Board sent a message of support for the inclusion of prayer, a message that amounted to endorsement of religion. 43 Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U.S. 203, and 231 (1948) F.3d 256 (3rd Cir. 2011) F. 3d 369 (6th Cir. 1999). 46 Id. at 384: Because there are serious questions as to the true motivation behind the school board's practice, and because such a solemnization for board meetings could have been achieved without resort to prayer, we hold that the school board's practice fails to satisfy the purpose prong of the Lemon test. 47 Indian River, 653 F.3d at 283: The Board argues that the purpose of the Prayer Policy is to solemnify its meetings, and thus that the Government has a secular purpose in promoting prayer. We will not take issue with the appellees' characterization of their policy, which we note is entitled to some deference. Santa Fe, 530 U.S. at See id. at 285: Given that the prayers recited are nearly exclusively Christian in nature, including explicit references to God or Jesus Christ or the Lord, we find it difficult to accept the proposition that a reasonable person would not find that the primary effect of the Prayer Policy was to advance religion. Also see Coles, 171 F. 3d at 385: In contrast, the prayers in this case were clearly sectarian, with repeated references to Jesus and the Bible, the current school board president is himself a Christian minister who personally delivers the majority of the prayers, and the setting is the public body that constantly interacts with elementary and secondary school children. 49 Indian River, 653 F.3d at 287.

11 10 Interestingly, neither the Sixth nor the Third circuits focused much attention on the issue of coercion, an issue that was central to the US Supreme Court s decision striking down prayer at public school graduations in Lee. In Indian River, the Third Circuit discussed coercion more in the context of whether Marsh should apply to school board prayer as opposed to whether school board prayer violates the Lemon tests or other Establishment Clause principles. 50 In other words, the Third Circuit pointed to the coerciveness as one basis for finding that school board prayer is like prayer in other public school contexts but not as a basis for striking down the prayer in question. In the words of the court, Having decided that this case is controlled by the principles in Lee v. Weisman, we must next decide whether the Indian River Policy violates the Establishment Clause. In this regard, we confront another threshold question- -what Establishment Clause test to apply. 51 The court then applied both Lemon and endorsement, noting that, The endorsement test and the second Lemon prong are essentially the same. In Coles, the Sixth Circuit majority took a similar approach, writing extensively about coercion in the section of the opinion headed, Prayers at Cleveland School Board Meetings: Marsh or Lee? 52 Once having answered that question Lee the majority opinion then went on to apply Lemon, not Lee. In evaluating the constitutionality of school board prayer under Lemon, the majority does not mention coercion under its discussion of purpose or effects but, instead, focuses on endorsement. 53 This is in contrast with Kennedy s opinion in Lee, which largely hinged on the issue of coercion Id. at 282: In sum, because we find that the type of potentially coercive atmosphere the Supreme Court asks us to guard against is present here, because of the nature of the relationship between the Board and Indian River students and schools, and in light of Marsh's narrow historical context, we hold that the District Court erred in applying the legislative exception to the Indian River Prayer Policy. Also see note Id. 52 Coles, 171 F. 3d at Id. at Lee, 505 U.S. at 587 and 598: It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a [state] religion or religious faith, or tends to do so. The State's involvement in the school prayers challenged today violates these central principles.the prayer exercises in this case are especially improper because the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid. (Citations omitted.)

12 11 One final issue that the school prayer precedent, including Justice Kennedy s opinion in Lee, points to in support of restricting prayer in the school context is not referred to in Coles nor Indian River: divisiveness based on entanglement. This does not mean that school board prayer raises no concerns related to entanglement and divisiveness. Rather, as is discussed below, Kennedy s opinion in Lee suggests that entanglement and divisiveness provide an additional basis for striking down school board prayer. B. Approach Two: Even if Marsh Applies, (Sectarian) School Board Prayer is Unconstitutional While the Sixth and Third Circuits rejected the argument that the legislative prayer exception from Marsh applied to school board prayer, the opinions for the Ninth and Fifth Circuit courts took somewhat different approaches. In its unpublished memorandum opinion in Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ., 55 the Ninth Circuit noted that under the school prayer precedent the school board prayer practice in question plainly would be unconstitutional, 56 leaving Marsh as the only possible justification for upholding the practice. Since the panel members found the prayer practice unconstitutional even under Marsh, 57 they were able to sidestep the question of whether school board prayer is to be governed by Marsh. In the Fifth Circuit case, Doe v. Tangipahoa Parish School Board, 58 Judge Rhesa Hawkins Barksdale took the same approach in his opinion for the court, assuming that Marsh applied 59 and finding the practice nonetheless unconstitutional Fed. Appx. 355 (2002). 56 Id. at Id,: On the facts of this case, even if the school board is like a state legislature for this purpose, the invocations are unconstitutional. Doe (fifth): Because the overtly sectarian prayers included in the stipulations fall outside Marsh's limited reach, we need not decide: (1) whether the Board fits within Marsh's legislative scope; F.3d 188 (5th Cir. 2006). 59 Id. at 202: Because the overtly sectarian prayers included in the stipulations fall outside Marsh's limited reach, we need not decide: (1) whether the Board fits within Marsh's legislative scope. Thus, contrary to Elizabeth Wick s implication that the Ninth and Fifth circuits held that Marsh applies to school board prayer, see Prayer Is Prologue: The Impact of Town of Greece on the Constitutionality of Deliberative Public Body Prayer at the Start of School Board Meetings. 31 JL & Politics (2015) 1, heading 2 at 15: Fifth and Ninth Circuits: Marsh Applies but Sectarian School Board Prayers are Unconstitutional, no circuit court majority opinion or opinion for the court has held that Marsh applies to the issue of school board prayer. 60 Since a second judge, Carl E. Stewart, agreed that the practice violated the Establishment Clause, albeit under Lemon not Marsh, the practice was struck down. The opinion of Judge Stewart largely mirrors those of the Fifth and Third Circuits. The approach taken by the third judge, who applied and upheld the practice under Marsh, is considered below.

13 12 In distinguishing the legislative prayer practice upheld in Marsh from the school board prayer practices in Bacus and Doe v. Tangipahoa, the Ninth Circuit and Judge Barksdale focused on case-specific facts, particularly the highly and pervasive sectarian nature of the prayers in each case. As the Ninth Circuit explained, In Marsh, the legislative chaplain removed all references to Christ after the sectarian nature of his prayers was brought to his attention and the prayer did not advance any one... faith or belief. In the case at bar the references to Christ were not removed despite objection, and the prayers, almost always in the Name of Jesus, did advance one faith. 61 Judge Barksdale made a similar point. As another circuit explained, Marsh does not permit legislators to... engage, as part of public business and for the citizenry as a whole, in prayers that contain explicit references to a deity in whose divinity only those of one faith believe. In allowing such explicit references to Jesus Christ, in selecting other persons to offer prayers who also referred exclusively to the Christian deity, and in demonstrating an unwillingness to adopt a policy that would have forbidden such references, the Board engaged in what Marsh forbids. 62 In addition to the sectarian, Christian nature of the prayers, the opinions pointed to other distinctions between the school board prayer practices in question in Bacus and Tangipahoa Parish School Board and the legislative prayer upheld in Marsh. As noted by the Ninth Circuit, the school board in Bacus did not rotate the recitation of the prayer among leaders of different faiths, sects, and denominations, in contrast with the practice of Congress. 63 Similarly, according to the opinion of Judge Barksdale, the board in Tangipahoa Parish School Board provided no evidence that an adherent of any non-christian faith was permitted to offer a prayer presenting a different message. 64 Because of the content of the prayers and the manner in which they were delivered, These prayers advanced one faith, Christianity, providing it with a special 61 Bacus, 52 F. App x at 356. Citations omitted. 62 Tangipahoa Parish School Board, 473 F.3d at Citations omitted. 63 Bacus, 52 F. App x at Tangipahoa Parish School Board, 473 F.3d at 203.

14 13 endorsed and privileged status in the school board. 65 As explained by Judge Barksdale, referencing the US Supreme Court s opinion in County of Allegheny v. ACLU, 66 Whatever else the Establishment Clause may mean[,]... it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). Because the Board s prayers in the stipulations demonstrate a clear preference for Christianity, they are not permitted under Marsh. 67 Relying on these facts and the sectarian nature of the prayers leaves open the question of whether or not, in the words of Judge Barksdale, another form of prayer is permissible at Board meetings. 68 By assuming that Marsh applied, Judge Barksdale and the Ninth Circuit avoided being placed between the proverbial rock and a hard place the Court s legislative-prayer analysis and its Establishment Clause jurisprudence in the public-schools context. 69 However, as discussed below, with the decision in Town of Greece, this approach is no longer viable: if Marsh and Town of Greece apply to prayers in a given context, the sectarian nature of those prayers no longer makes them per se unconstitutional. II. ENTER TOWN OF GREECE In the splintered decision in Town of Greece, a majority of the US Supreme Court extended the principles established for legislative prayer in Marsh to prayer at town board meetings. What s more, the Court rejected the argument that such prayers must be nonsectarian to survive challenge under the Establishment Clause. As will become important in understanding what implications, if any, Town of Greece has for school board prayer, Justice Kennedy, the author of the Court s majority opinion in Lee, wrote the opinion for the Court in Town of Greece. The Town of Greece opinion, when read alongside Kennedy s opinion in Lee, contains 65 Bacus, 52 F. App x at U.S. 573 (1989). 67 Tangipahoa Parish School Board, 473 F.3d at Citations omitted. 68 Id. at 205. Emphasis removed. 69 Id. at 197. Citations omitted.

15 14 numerous clues suggesting that Town of Greece should not be read to support extending the Marsh/Town of Greece precedent to prayer at school boards. A. Justice Kennedy s Opinion Town of Greece produced a handful of opinions at the Supreme Court. 70 For reasons discussed below, only Justice Kennedy s opinion need be considered in detail when contemplating the application of Marsh/Town of Greece and Lee to prayer at school board meetings. 71 Thus, the other opinions will be discussed only briefly here. Justice Kennedy s opinion adds two wrinkles to the legal framework governing prayer in the context of deliberative governmental bodies. First, it extends the concept of legislative prayer outside the context of Congress and state legislatures. Second, it establishes that legislative prayer need not be nonsectarian to survive review under the Establishment Clause. These two wrinkles have implications for the issue of school board prayer. Prior to Town of Greece, lower courts grappled with the question of whether the practice upheld in Marsh encompassed prayer in the context of other deliberative bodies such as town and county council meetings. 72 One view, offered in Justice Brennan s dissent in Marsh, was that Marsh created a historically-bounded exception to the restriction on religious expression by state actors. Under this view, Marsh recognized that the Founders had accepted and/or engaged in prayer in pre and post-independence institutions, a practice continued by Congress from its nascence with nearly no interruption up through the present day. Based on this historical context, this sort of legislative prayer must have been understood as acceptable by the Founders. Given that history, and the value of judicial deference to another branch of government, the practice in question in Marsh, opening prayers at the Nebraska legislature, also should be considered to be acceptable under the Establishment Clause. However, under this view, outside of this narrow, 70 As noted in the syllabus: Kennedy, J., delivered the opinion of the Court, except as to Part II-B. Roberts, C. J., and Alito, J., joined the opinion in full, and Scalia and Thomas, JJ., joined except as to Part II-B. Alito, J., filed a concurring opinion, in which Scalia, J., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Scalia, J., joined as to Part II. Breyer, J., filed a dissenting opinion. Kagan, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined. 71 Although Part II-B of Kennedy s opinion was joined by only two other justices, it is indicative of Justice Kennedy s views. Thus, it is helpful in understanding both how Kennedy likely would rule in a future case and also in understanding Kennedy s opinion for the Court in Lee. 72 See, e.g., Forsyth County v. Joyner, 653 F.3d 341 (4 th Cir. 2011); Mullin v. Sussex County, Del., 861 F. Supp. 2d 411 (D. Del. 2012) and Jones v. Hamilton County, No. 1: 12-cv-190 (E.D. Tenn. Aug. 29, 2012).

16 15 historical legislative context i.e. Congress and state legislatures the principles established in Marsh do not apply. In his majority opinion in Town of Greece, Justice Kennedy rejected this narrow, historically-bound understanding of Marsh. For Kennedy, Marsh did not say that prayer in the legislative context was an exception to what otherwise would be unconstitutional. Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted by reference to historical practices and understandings. 73 In other words, the fact that the Founders engaged in forms of legislative prayer means that they understood the Establishment Clause to allow for it. Thus, this historical practice sheds light on what the Establishment Clause means. Given this history, there was no need to apply additional judicially-created tests to Nebraska s practice to determine if that practice violated the Clause. Marsh is sometimes described as carving out an exception to the Court s Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to any of the formal tests that have traditionally structured this inquiry. The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause. 74 The distinction is meaningful because it rejects the view that the practice upheld in Marsh was upheld in spite of the fact that it violated Establishment Clause principles. Instead, Kennedy argues that the historical practice of the Founders helps us to understand those principles. That historical practice, in other words, helps us to give the Clause meaning because it demonstrates what was and was not understood as problematic under the Establishment Clause. Specifically, the practice gives us an example of something that does not violate the Clause. Thus, it is not necessary to apply any judicially-formulated test to make that determination. 73 Town of Greece, 134 S. Ct. at Id. at Citations omitted.

17 16 Under this view, determining if a prayer practice violates the Establishment Clause involves determining if that prayer practice falls within the practice recognized as constitutional under Marsh, the practice engaged in by the Founders and by the Nebraska legislature. If it falls within that practice, it passes muster. If it doesn t, it still might pass muster under another Establishment Clause test. In Town of Greece, Justice Kennedy determined that the prayer practice in question did fall within that practice recognized as acceptable in Marsh. Specifically, Marsh permitted prayer in state legislatures by a chaplain paid from the public purse, so long as the prayer opportunity was not exploited to proselytize or advance any one, or to disparage any other, faith or belief. 75 Determining whether a prayer practice violates the Clause under Marsh does not hinge on what level of government federal, state or local is engaging in prayer. Rather, the question is whether the prayer practice was used to proselytize or advancing or disparaging any faith or belief. In addition to clarifying the reach of Marsh, Justice Kennedy s opinion in Town of Greece clarified its breadth. Specifically, the opinion established that Marsh does not require that specific prayers be sectarian to pass muster under the Establishment Clause. The issue, rather, is whether the legislative body engaged in prayer proselytized or advanced or disparaged any faith or belief. The fact that the prayers delivered before that legislative body are sectarian delivered in faith-specific idiom and reflecting faith-specific beliefs does not mean that they proselytize or advance or disparage any other faith or belief. B. Town of Greece, Marsh and School Board Prayer Whether or not prayer at school board meetings continues to be disfavored by the courts largely hinges on the impact of the Supreme Court s decision in Town of Greece. In the aftermath of that decision, many school boards reestablished the practice of opening meetings with a prayer, 76 perhaps assuming or hoping that the decision meant that the previous appellate court decisions no longer applied. The central argument for this position is that prayer at school boards, like prayer at town council meetings, should be governed by Marsh and Town of Greece 75 Id. at Marie Elizabeth Wicks, Prayer Is Prologue: The Impact of Town of Greece on the Constitutionality of Deliberative Public Body Prayer at the Start of School Board Meetings, 31 J. L. & Politics 1, 17 (2015).

18 17 as opposed to the Court s precedent dealing with prayer in the public school context. 77 If courts accept this argument, prayer at school board meetings will almost certainly be upheld under certain circumstances. What s more, since the prayer approved of in Town of Greece was sectarian in nature, there would be a strong argument in favor of the constitutionality of sectarian prayer in the school board context. Although it is unclear if courts indeed will accept these arguments, it is clear that, with the decision in Town of Greece, courts faced with challenges to sectarian school board prayers will no longer be able to use their sectarian nature to sidestep the issue of whether Marsh applies. In other words, since Town of Greece held that legislative prayer need not be nonsectarian, courts may no longer take the approach taken by the Ninth Circuit and Fifth Circuit court Judge Rhesa Hawkins Barksdale. Rather, when faced with a challenge to school board prayer, courts now will find it harder to avoid the question of whether Marsh applies, even if the prayer is sectarian Town of Greece Changes Everything: Why School Board Prayer now is Governed by Marsh and Town of Greece Even before the Court s decision in Town of Greece, some courts were open to the position that school board prayer was governed by Marsh. Although no majority appellate court opinion embraced this position, some district and even appellate court judges did. 79 The pre- Town of Greece arguments for applying Marsh to school board prayer encompassed three main points. First, school board meetings are nearly identical to other public deliberative bodies such 77 For an argument that Marsh and Town of Greece both misconstrue the fundamental religious nature of prayer and, for that reason, were both wrongly decided, see Perry Dane, Prayer is Serious Business: Reflections on Town of Greece, 15 Rutgers J. Law & Relig. (2014). 78 The one slender option for avoiding the issue is to hold that a particular prayer practice still fails under Marsh. While not an entirely impossible option, the facts would have to provide a basis for distinguishing the prayer practice from that upheld in Town of Greece. (See discussion below.) 79 For example, Judge Edith Brown Clement began her concurring/dissenting opinion in Tangipahoa with the undefended assertion that she would hold that Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983), rather than Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), applies to this deliberative body. In contrast to Judge Clement, the district court judges in Coles, Doe v. Indian River and Bacus, along with Circuit Judge Ryan (who dissented in Coles), laid out their reasoning for holding that Marsh, not the Supreme Court s school prayer precedent should apply to school board prayer. The arguments described in this paragraph rely on the reasoning of those judges.

19 18 as legislatures and especially town councils and other such bodies. 80 Second, a school board meeting is a meeting of adults, not public school students 81 and the presence of a limited number of students does not alter a meeting of adults into a school function. 82 Third, school board meetings do not implicate the underlying concerns which have led the Supreme Court to apply the Establishment Clause strictly to school-related functions, i.e., the potential coercion of impressionable students and the mandatory or quasi-mandatory nature of student attendance. 83 Unlike attendance at school, attendance at board meetings is not compulsory. Unlike graduations and extracurricular events, attending school board meetings are, at best, incidental to a student s public school experience and, thus, students don t feel they are missing out on an important part of school life if they do not attend school board meetings. 84 Although no majority appellate court opinion adopted the argument that Marsh applied to school board prayer prior to the Court s decision in Town of Greece, 85 that decision strengthened that argument in two ways. 86 First, Town of Greece undermined the claim that Marsh only encompassed the narrow, longstanding practice of opening legislative sessions with a prayer. As opposed to carving out an exception for this narrow, longstanding practice, Marsh established that a broad category of state religious expression legislative invocations was understood by the Founders to be within what the Establishment Clause permitted. The fact that a town council meeting differs in some ways from a state legislature, particularly in the extent to which citizens are involved in the meetings, does not remove it from the reach of Marsh. Since school boards closely resemble town councils, the logic that supports extending Marsh to town councils 80 See Bacus v. Palo Verde Unified School Dist., 11 F. Supp. 2d 1192, 1197 (C.D. Cal. 1998): Its function is primarily policy and rule making which makes it akin to a deliberative public body. 81 See Coles v. Cleveland Bd. of Educ., 950 F. Supp. 1337, 1345 (N.D. Ohio 1996): A board meeting is fundamentally a meeting of adults, open to the public and conducted for the purpose of doing public business. 82 See id. at 1346: The presence of a small number of students does not change the fact that the board is an elected body consisting of adults conducting public business in public meetings. 83 Id. 84 Doe v. Indian River School Dist., 685 F. Supp. 2d 524, 538 (D. Del. 2010): Just as a public school board meeting is not similar to a graduation ceremony, it is not similar to extracurricular activities such as sports team events. Unlike extracurricular activities, which are important to many students... as part of a complete educational experience. Citations omitted. 85 As discussed above, these arguments were rejected by the Third and Sixth Circuit courts, the two circuit courts that considered the question of Marsh s applicability to school board prayer. 86 This discussion of the arguments that Town of Greece makes school board prayer constitutional draws on Defendants Motion for Summary Judgment and Memorandum in Support, 5: 14-CV-2336 JGB (DTBx) (C.D. Cal. Apr. 15, 2015), available at: /legal/ffrfvchinovalley_defendantsmsjandmemo.pdf. While that motion also challenges the pre-town of Greece arguments that Marsh does not apply, the focus here is on the arguments that are made available or enhanced by the Town of Greece decision.

20 19 in Town of Greece supports extending Marsh to school boards. Thus, school board prayer, like prayer before Congress, state legislatures, and town councils, is constitutional so long as the prayer opportunity was not exploited to proselytize or advance any one, or to disparage any other, faith or belief. 87 The second way that Town of Greece bolsters the argument for applying Marsh to school board prayer is by weakening the claim that the concern with coercion found in Lee and other school prayer cases applies in the context of school board prayer. As the defendants in Chino Valley argued, the Court upheld the practice of prayer at town council meetings in Town of Greece even though some members of the community (even children) attend the city council meetings with little choice if they wanted to obtain services such as the issuance of permits, or be recognized for achievement. 88 This supports extending Marsh to school board prayer because if coercion was not a problem in the town council meeting context it should not be a problem in the school board context. Both contexts differ from the school graduation context of Lee in that, unlike those who attend graduations, members of the public who attend town council meetings and school board meetings are not dissuaded from leaving the meeting room during the prayer, arriving late, or even making a later protest Town of Greece Changes Nothing: Marsh Still Doesn t Apply to School Board Prayer Given that Town of Greece was decided in 2014, few courts have faced the question of whether that opinion supports extending the principles applicable to prayer before deliberative bodies to school boards. Only one published decision has addressed the specific question. In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, 90 United States District Court Judge Jesus Bernal struck down the school board prayer in question. For the most part, Judge Bernal s opinion echoes the opinions for the court in Coles and Doe. In reviewing the Chino Valley Board s roughly 1,100-word prayer policy, Judge Bernal first noted that the case hinged on the issue of which line of Establishment Clause cases governs school board prayer [t]he long line of cases restricting prayer in public schools [or 87 Town of Greece, 134 S. Ct. at Defendants Motion for Summary Judgment and Memorandum in Support at Id. at U.S. Dist. LEXIS