3rd Circuit invalidates Del. school-board prayer

Monday, August 8, 2011

A Delaware school board’s practice of reciting prayers before meetings violates the establishment clause, a federal appeals court has ruled. The 3rd U.S. Circuit Court of Appeals court reasoned that the school board prayer was more akin to prayer at school graduations than prayer before a legislative body.

Since its creation in 1969, the Indian River School District’s board has opened its meetings with prayer. In 2004, after a heated debate over the propriety of prayer at graduations, the school board put its practice into formal policy.

Originally two sets of parents with children in the school district challenged the constitutionality of the policy. They argued that it violated the establishment clause of the First Amendment, which provides for separation between church and state. The parents noted that students often attended these meetings and should not have prayers imposed on them.

However, the school board contended that the prayer was justified under the legislative-prayer exception created by the U.S. Supreme Court in Marsh v. Chambers (1983). In that case, a majority of the high court ruled that the Nebraska Legislature could have chaplain-led prayer without violating the establishment clause.

The parents contended that the legislative-prayer exception under Marsh should not apply to school boards where children are often present. Instead, they argued that the court should apply the graduation-prayer precedent from Lee v. Weisman (1992), in which the Court struck down a school district’s policy of prayer at graduation. A federal district judge ruled in favor of the school board, finding that the board was a “deliberative body” just like the Nebraska Legislature in Marsh.

On appeal, a three-judge panel of the 3rd Circuit reversed in Doe v. Indian River School District. The panel found that the school board’s prayer practice was more like prayer at a graduation than before a legislative body.

“The Indian River School Board carries out its practice of praying in an atmosphere that contains many of the same indicia of coercion and involuntariness that the Supreme Court has recognized elsewhere in its school prayer jurisprudence,” Judge Julio M. Fuentes wrote in his Aug. 5 opinion for the panel.

Fuentes noted that some students, such as those in student-government positions, regularly attend the meetings. Rejecting the school board’s contention that its meetings were similar to those of a legislative body, Fuentes said that the “entire purpose and structure of the Indian River School Board revolves around public education.”

Having decided that Marsh did not apply, Fuentes and the panel applied the Supreme Court’s familiar establishment-clause test from Lemon v. Kurtzman (1971) – called the Lemon test. Under the Lemon test, a government practice must have a secular purpose, must not have a primary effect that advances or inhibits religion and must not excessively entangle church and state.

The school board argued that its prayer policy had a secular purpose of solemnizing its meetings. The 3rd Circuit panel accepted this argument. But it ruled that the primary effect of the prayer policy was to advance religion. Fuentes wrote that “the largely religious content of the prayers would suggest to a reasonable person that the primary effect of the Policy was to promote Christianity.”

The panel also determined that the prayer policy excessively entangled church and state because board members composed and recited the prayers. “Government participation in the composition of prayer is precisely the type of activity that the Establishment Clause guards against,” Fuentes wrote.

“This important ruling reminds public school officials that they have no  right to meddle in religious matters. Students often attend school board meetings,” said Ayesha Khan, legal director for Americans United for Separation of Church and State, which filed an amicus brief in support of the challenging parents. “They should not be coerced into prayer.

“Prayer is important to many Americans, but it should not be imposed by government,” Khan said. “Students, their families and others should be able to attend school board meetings without feeling pressured to join in prayer. Government-sponsored prayer is divisive, unconstitutional and unwelcome.”

Steven W. Fitschen, president of the National Legal Foundation, which filed an amicus brief in support of the school, told the First Amendment Center Online:

“The Third Circuit wrongly decided Doe v. Indian River, both as a matter of first principles and under current Supreme Court precedent. As to the former, the Framers thought in terms of four concepts: the acknowledgement, accommodation, encouragement, and establishment of religion. Only the latter is proscribed by the First Amendment. The first three were seen as proper and good aspects of church-state relations. In addition to the fact that school board members have every right to invoke Divine guidance for themselves, their prayers — at most — encourage religion in others, including the students who are present. Government ought to encourage its youth (as all its citizens) in religious endeavors, not protect them from such endeavors as if they were an evil.”

Tags: , , ,