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Legal Brief                                      Page 9

 

Prayer at Your Board Meeting?

BY PERRY ZIRKEL

 Suppose the Okay School District has had a longstanding practice of opening its regularly scheduled meetings of the board of education with a prayer — a prayer that is clearly Christian.

 Perry Zirkel

 

Students attend the Okay district’s public board meetings on an occasional basis, typically to receive individual and/or team awards or another form of recognition. After one such board meeting, the parents of a student enrolled in the district sue the school board and the superintendent in federal court, claiming the board’s prayer practice violates the First Amendment’s Establishment Clause. The parents seek an injunction, compensatory damages and attorneys’ fees.

Prior Case Law

During the past 15 years, such suits have arisen around the country, on occasion reaching the federal appeals courts. In school-related cases in Ohio, Delaware, Louisiana and California, the court decisions had consistent outcomes. Each appellate court held that allowing prayers at school board meetings violate the Establishment Clause.

Citing the tradition in Congress that dates back to the time of the Constitution, the U.S. Supreme Court ruled in Marsh v. Chambers (1983) that allowing opening prayers at state legislatures does not violate the Establishment Clause.

The court’s 5-4 decision last May in Town of Greece v. Galloway warrants reconsideration of this issue. The court’s majority ruled that the Marsh legislative exception extended to prayers at town council meetings, even though the prayers at issue were predominantly Christian. However, the majority warned: “[T]he inquiry remains a fact-sensitive one that considers the setting in which the prayer arises and the audience to whom it is directed.”

In Greece, the Justices ruled that the universal themes of several prayers, the town council’s reasonable efforts to welcome prayers by other faiths in the community and the noncoercive approach to the public meeting attendees all counted in favor of constitutionality. The extent to which this new decision extends to school boards is unclear, particularly in light of their special status inextricably in relation to public school students.

Possible Options

Subject to advice from the school district’s legal counsel, superintendents should consider various options in helping the school board determine the appropriate course of action.

At one end of the range, simply solemnifying meetings without prayer, as various other governmental bodies, including schools do, would avoid this constitutional issue altogether. As an intermediate alternative, doing so with a brief, straightforward moment of silence may, depending on the circumstances, be constitutionally as well as practically acceptable.

However, for those boards of education that seek to initiate or continue the practice of prayer at their public meetings, the fact-specific criteria that could affect the outcome of a possible Establishment Clause lawsuit, based on the factors the courts have used in these appellate cases, include:

  • minimizing student participation at board meetings, such as using the high school color guard, conducting student award presentations, and having student representatives on the board or having them provide regular presentations;
  • rotating the prayer among various faiths and/or keeping the prayer nonsectarian and ecumenical;
  • limiting participation in the prayer to the board members by instructing the other attendees to remain silent during this oral recitation specifically by and for the board; and
  • avoiding any psychological coerciveness, such as an attendee’s reasonable perception that the board made it difficult to leave the meeting room during the prayer, arrive late to avoid the prayer, or register any protest against it.

The superintendent’s professional knowledge and skills can facilitate the school board’s careful consideration to steer effectively between this rock and hard place.

Perry Zirkel is the University Professor of Education and Law at Lehigh University in Bethlehem, Pa.




 

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