Center for Law and Religious Freedom
A Division of Christian Legal Society

PRAYER AT SCHOOL BOARD MEETINGS

1. INTRODUCTION
   
   

   In the United States, school board meetings are frequently opened with a prayer or invocation. This is consistent with a broader tradition in America of prayer or invocation prior to meetings of various legislative bodies, including city councils, county boards, state legislatures, and the U.S. Congress, and before sessions of various courts. It is inconsistent, as strict separationists point out, with U.S. Supreme Court precedent regarding prayer at public school commencements.




2. DISCUSSION



1. Prayer Before Meetings of Legislative Bodies Held Constitutional.




The seminal case in the area of prayer preceding meetings of legislative bodies, but not school boards per se, is Marsh v. Chambers, 463 U.S. 783 (1983). In Marsh, a member of the Nebraska legislature challenged the use of public funds to pay for chaplains to offer invocations in that legislative body. The Eighth Circuit applied the three-prong Lemon test¹ and concluded that the whole chaplaincy program violated the Establishment Clause. Marsh v. Chambers, 675 F.2d 228 (8th Cir. 1982).





The U.S. Supreme Court reversed, but declined to use the Lemon test as a basis for its decision. Rather, the court focused upon the long-standing and traditional nature of legislative prayers in finding them constitutionally valid. The Court acknowledged the 200-year history of prayer in the U.S. Congress and the 100-year history of prayer in the Nebraska legislature. The Court focused on the historical practice of legislative prayer to show that the drafters of the First Amendment believed that it did not violate the Establishment Clause. Furthermore, the Court concluded the Marsh opinion by stating that there was no danger of establishment in light of the "unbroken practice for two centuries in the National Congress, for more than a century in Nebraska and in many other states." 463 U.S. at 795





Lower courts which have upheld prayer preceding meetings of legislative bodies under the Lemon standard include the following: Bogen v. Doty, 598 F.2d 1110 (8th Cir. 1979) (upholding invocation at county board meeting by volunteer local ministers invited on a rotating basis); Colo v. Treasurer and Receiver General, 392 N.E.2d 1195 (Mass. 1979) (upholding invocation in Massachusetts state legislature by a paid chaplain); Marsa v. Wernik, 430 A.2d 888 (N.J. 1981), cert. den'd, 454 U.S. 958 (1981) (upholding invocation by a city council member at the beginning of each city council meeting).² .





In upholding government's exclusion of a citizen petitioning to deliver an atheistic prayer before the commencement of a city council session, the Tenth Circuit interpreted narrowly the limits of the constitutional right to legislative prayer discussed in Marsh. Snyder v. Murray City Corp., 159 F.3d 1227 (10th Cir. 1998). The Tenth Circuit found that legislative prayer runs afoul of the Establishment Clause under Marsh if (1) the prayer "proselytizes a particular religious tent or belief," "aggressively advocates a specific religious creed," or "derogates another religious faith or doctrine" or (2) the choice of the person to recite the prayer stems from an impermissible motive such as to proselytize or disparage a faith or establish a religion. Id. at 1234. The Court opined:

[T]here is no 'impermissible motive' when a legislative body or its agent chooses to reject a government-sanctioned speaker because the tendered prayer falls outside the long-accepted genre of legislative prayer. The genre approved in Marsh is a kind of ecumenical activity that seeks to bind peoples of varying faiths together in a common purpose. That genre, although often taking the form of invocations that reflect a Judeo-Christian ethic, typically involves nonsectarian requests for wisdom and solemnity, as well as calls for divine blessing on the work of the legislative body ³.





Id. at 1234⁴.




2. Prayer Before School Board Meetings in Limbo




Notwithstanding Marsh and Snyder, the Sixth Circuit recently held prayer before school board meetings unconstitutional, premised upon what may be an overstatement of the significance of Santa Fe Independent School Dist. v. Doe, __ U.S. __, 120 S.Ct. 2266 (2000) and overly restrictive reading of Marsh. In Coles v. Cleveland Board of Education, 171 F.3d 369 (6th Cir. 1999), Sarah Coles was invited to attend a school board meeting to receive an award. Id. at 374. She was "shocked and surprised" to hear a prayer at the opening of the board meeting offered by the president of the school board, Rev. Stephen Sullivan. The prayer also allegedly offended Gene Tracy, a math teacher in the district. Id.





The Sixth Circuit considered whether Santa Fe or Marsh should control. After admitting reasonable minds may differ, it decided on the former, because of the following dual concerns the court argued evident in school prayer cases decided by the U.S. Supreme Court: (1) students are young and impressionable and, therefore, vulnerable to coercion and (2) public schools are particularly important to the maintenance of a democratic, pluralistic society and, therefore, must not endorse religion. Coles, 171 F.3d at 377-79. The Court added that "the fact that the function of the school board is uniquely directed toward school-related matters gives it a different type of 'constituency' than those of other legislative bodies-namely, students." Id. at 381





The "impressionable student" argument was recently challenged when the U.S. Supreme Court held that coercion of students is not at issue when parents must give their permission for students to attend an event. Good News Club v. Milford Central School, __ U.S. __, 121 S.Ct. 2093 (2001). In Good News Club, parents were required to authorize attendance of their children at after-hours Bible club meetings. Therefore, the Court said, "[T]o the extent we consider whether the community would feel coercive pressure to engage in the Club's activities, the relevant community would be the parents, not the elementary school children." Id. at 2104. Presumably, parents would also have to approve the presence of their minor children at school board meetings.





Concerning the endorsement prong of the Sixth Circuit's reasoning, it is an overstatement to imply Santa Fe found all commencement prayer by students unconstitutional. To the extent graduation prayer cases are analogous to school board prayer cases, the following guidelines that Santa Fe and other school prayer cases⁵ recommend may prove helpful for school board meetings: (1) the policy should propose a "message," rather than "prayer," (2) speakers must be selected on a religion-neutral basis like performance, hierarchy, or serial rotation, (3) speakers must have substantial control over the content of their speech, and (4) the assembled audience must be voluntarily present as opposed to being in a practical sense "captive." These factors are not necessarily individually necessary or equally weighted. Snyder adds that prayers should be nonsectarian. 159 F.3d at 1234 ⁶.





The Coles Court also found that invocation before school board meetings violates the Lemon test, because (1) in the judgment of the court the purpose of the prayer was probably other than to solemnize meetings, (2) a reasonable observer would conclude the school board was endorsing Christianity, and (3) the prayer led to excessive entanglement of government with religion. 1 71 F.3d. at 384-85. Accord North Carolina Civil Liberties Union Legal Found. v. Contangy, 947 F.2d 1145 (4th Cir. 1991) (judge's practice of opening court session with prayer violated Lemon test).





As stated above, other courts have found contrary to Coles that prayer serves a valid secular purpose, because it solemnizes an event, Bogen, 598 F.2d at 1113; Marsa, 430 A.2d at 896; and prompts legislators to reflect upon the importance of their responsibilities, Colo, 392 N.E.2d at 1200. Courts have likewise ruled that the effect of the prayer is primarily ceremonial, Id.; Marsa, 430 A.2d at 897; Bogen, 598 F.2d at 1113; and may be viewed as the individual belief of the person praying, rather than of the school board, Marsa, 430 A.2d at 897.




3. CONCLUSION




Although nonsectarian prayers in most legislative bodies are undeniably constitutional whether analyzed under Marsh or Lemon, prayer before school board meetings is under attack. The best legal argument remains that, as adult deliberative bodies charged with setting educational policy, school boards should be treated like other legislative bodies. Alternatively, it may be contended that prayer before school board meetings must be judged on a case specific basis against a series of factors Santa Fe and other school prayer cases suggest are important to decide the constitutionality of the prayer. A per se rule of unconstitutionality is clearly inappropriate.

¹In 1971, the U.S. Supreme Court decided Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), and courts began using its test to determine whether government conduct violated the Establishment Clause. The Lemon test consists of three prongs: (1) whether the challenged action has a secular purpose, (2) whether the primary effect of the challenged action is to promote or inhibit religion, and (3) whether the challenged practice leads to an excessive government entanglement with religion. Lemon, 403 U.S. at 612-13.

²See also Lincoln v. Page, 241 A.2d 799 (N.H. 1968) (holding prayer at public meeting constitutional under federal law before the Lemon and Marsh cases were decided); Society of Separationists v. Whitehead, 870 P.2d 916 (Utah 1993) (upheld prayer before city council meetings under the Utah Constitution, notwithstanding a Blaine Amendment; court declined to rely on Marsh or Lemon, but discussed history of the legislative prayer practice as in Marsh).

³Footnote 14 of Marsh indicates that the chaplain's prayers were "nonsectarian" and after 1980 made no reference to Christ, but were "explicitly Christian." 463 U.S. at 793. The chaplain himself was Presbyterian. Id. Nebraska collected the prayers into books for distribution. Id. at 793 n.15.

⁴Cf. Kurtz v. Baker, 829 F.2d 1133 (D.C. Cir. 1987) (chaplains who refused to invite non-theists to deliver secular remarks during a period reserved for morning prayer did not have authority to compel appearance of guest chaplain or to terminate guest chaplain program, so that inability of philosophy professor to deliver secular remarks in both Houses of Congress was not fairly traceable to chaplains' rejection of professor's requests; professor also lacked Article III standing).

⁵See Adler v. Duval County School Bd., 206 F.3d 1070 (11th Cir. 2000) (en banc), reinstated by, 250 F.3d 1330 (11th Cir. 2001); Cole v. Oroville Union High School Dist., 228 F.3d 1092 (9th Cir. 2000), cert. den'd, 121 S.Ct. 1228 (2001).

⁶The Center's full analysis of Santa Fe v. Independent School Dist. v. Doe, __ U.S. __, 120 S.Ct. 2266 (2000) is available on its web site. See www.clsnet.org/ clrfPages/SantaFe_Analysis.htm.