Your school board meetings: more like the state legislature? Or a football game?

This being Good Friday, I thought it would be a good time to revisit the issue of prayer at school board meetings.  Fortunately, we have a brand new 5th Circuit decision on the issue.

Background: two circuits (the 3rd and the 6th) have struck down prayer at school board meetings.  However, both of those cases pre-dated the Supreme Court’s decision in Town of Greece v. Galloway.  In that case SCOTUS considered the constitutionality of prayer at a city council meeting.  The Court held that the “legislative prayer” exception applied.  Therefore, just as ceremonial prayer is acceptable in Congress and in state legislatures, it is acceptable at a city council meeting.

That still left school board meetings in legal limbo. But not anymore, thanks to American Humanist Association v. Birdville ISD.

Since 1997 Birdville has opened its board meetings with presentations from two students.  The practice has been for the first student to lead the Pledge of Allegiance and the Texas pledge, while the second student delivers a statement, which might include a prayer.  That second student is given only one minute for his or her remarks. School officials do not direct the student on what to say, except to point out that the remarks must be relevant to a school board meeting and not obscene or inappropriate.

The American Humanist Association (AHA) alleged that these one-minute statements usually involve a prayer, and that those prayers are often overtly Christian, using phrases such as “in the name of Jesus.”  Moreover, the AHA alleged that board members have sometimes asked the audience to “stand for the prayer” or “bow your heads.”

The district tweaked the process in three ways in 2015, apparently in response to concerns expressed by the AHA. First, the district began referring to this one-minute presentation as a “student expression” rather than an “invocation.”  This reflected the fact that not all students used their time to deliver a prayer.  Some read a poem, or a secular reading.  Second, the district started providing a disclaimer, making it clear that the words spoken were the student’s—not the school’s.  Third, the district began selecting students on a random, rotational basis among student leaders who had volunteered, rather than having students selected on the basis of merit.

None of those changes satisfied the AHA.  The organization continued to assert that this was a thinly disguised scheme to allow prayer at the school board meeting.  The AHA and a former student from Birdville sued in federal district court, alleging that the district’s practices were unconstitutional.  The suit named the district as a defendant, along with all seven school board members who were sued in their individual capacity.

The federal district court granted a Motion for Summary Judgment in favor of BISD.  Now, the 5th Circuit has affirmed that decision. With the ruling that the district has not violated the Constitution, the board members are also relieved of liability concerns.

In its analysis, the court noted that several prior court cases have struck down “school prayer” at various school activities, such as football games and graduations.  On the other hand, there are also cases that allow prayer in the context of legislative activities at the federal or state level. So the court framed the issue this way:

The key question, then, is whether this case is essentially more a legislative-prayer case or a school-prayer matter.  Like Galloway, this dispute is about the constitutionality of permitting religious invocations at the opening, ceremonial phase of a local deliberative body’s public meetings. But like Santa Fe, this case is about school district sanctioned invocations delivered by students on district property.

The court concluded that “a school board is more like a legislature than a school classroom or event.” Thus the “legislative prayer” cases controlled the outcome. The district’s practices fit well within that framework.   The court cited Town of Greece v. Galloway as the primary basis for its ruling.

The district had a back-up argument prepared for the court—that even if the one-minute was used for the delivery of a sectarian prayer, it would be the student’s speech, not the school’s.  But by relying on the legislative prayer exception, the court did not reach that issue.

The case of American Humanist Association v. Birdville ISD was decided by the 5th  Circuit on March 20, 2017.  I’m proud to report that attorneys Craig Wood and Katie Payne from our firm’s San Antonio office represented the district in this case.


File this one under: RELIGION

Have a good weekend, Readers! See you next week.