Virginia school boards reject calls to cease prayer before meetings

Monday, November 15, 1999

At least two public school boards in Virginia have ignored the calls of a state civil rights group to cease organized prayers before their meetings.

Late this summer, the Virginia chapter of the American Civil Liberties Union sent letters to public school boards throughout the state asking them to stop including prayer in their meetings. The civil rights group cited a 6th U.S. Circuit Court of Appeals decision handed down last March that found unconstitutional an Ohio school board's use of Christian prayer to open its meetings.

In Coles v. Cleveland Board of Education, the 6th Circuit ruled that the establishment clause of the First Amendment forbids public schools boards from officially recognizing religion at their public meetings. The 6th Circuit's jurisdiction includes Michigan, Ohio, Kentucky and Tennessee. Virginia is in the 4th Circuit.

Kent Willis, executive director of the Virginia ACLU, said that at least two school boards had recently voted to continue with meeting-opening prayers, despite his group's letter.

“A number of school boards have decided not to pray,” Willis said. But school boards in Lynchburg and Virginia Beach have both voted to continue the practice.

At last month's school board meeting, the Lynchburg City School Board, which includes two student representatives, voted 5-4 to continue its tradition of having local clergy offer prayer before meetings. Willis said that since the Oct. 19 vote the Lynchburg City Council, which appoints school board members, has asked the board to reconsider the prayer policy.

“Lynchburg is addressing this issue and the controversy is not over yet,” Willis said. “Our group will decide whether to pursue litigation after the board makes a firm decision. We hope that ultimately the board will stop the prayers.”

On Nov. 3, the Virginia Beach School Board voted 10-1 to keep its pre-meeting prayer, after the city's attorney said there was no precedent to keep the board from praying. The school board members, however, agreed to cease saying the prayer themselves or selecting the clergy to lead the prayers. The school district's staff will now pick local clergy to give the prayer.

Virginia Beach Superintendent Timothy R. Jenney approved of the board's action, telling The Virginian-Pilot that he thought the board “walked a very narrow course without offending anyone on either side of the issue.”

Willis said the ACLU had hoped its letter to the state's school boards would have convinced them that such meetings were inappropriate. He said the school boards that opted to ignore the federal ruling could face litigation. Citing the 6th Circuit decision, Willis said the school boards operated in an official capacity and often with students present.

“The First Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State,” the 6th Circuit ruled. “The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission.”

Jim Henderson, senior counsel for the American Center for Law and Justice, a socially conservative nonprofit group that advocates greater protection for religious expression in the public square, said the Virginia school boards are not acting unconstitutionally by supporting prayer at their meetings.

“The ACLU's attempt to extend the borders of the 6th Circuit far exceeds what Congress would consider doing,” Henderson said. “It is bad law to suggest that a 6th Circuit decision would dictate what public school boards do in the 4th Circuit. Moreover, the 6th Circuit decision is wrong.”

Henderson notes that the Supreme Court has ruled that opening sessions of legislative and other government public bodies with prayer is not only part of the nation's history but does not subvert the establishment clause of the First Amendment.

In 1983, the high court ruled in Marsh v. Chambers that the Nebraska Legislature did not violate the separation of church and state by paying a chaplain to open its sessions with prayer.

“It can hardly be thought that in the same week members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable,” Chief Justice Burger wrote for the court in Marsh. “This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged.”

Henderson added that while public school board meetings occasionally include a “slice of public school life,” the fact remains that such meetings “are not places of compulsory student attendance, such as classes and assemblies.”