Legal Alerts Aug 07, 2018

Ninth Circuit: No “Amen” to School Board Invocation

Prayers Violated First Amendment

Ninth Circuit: No “Amen” to School Board Invocation

A public school board’s policy and practice of opening its public meetings with invocation was struck down by a federal appeals court. In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, the Ninth Circuit U.S. Court of Appeals held that the invocations violated the First Amendment because they necessarily involved young members of the public in attendance and comprised part of a larger context of public proselytizing.

The Chino Valley Unified School District is a K-12 district governed by a five-member Board of Education. Like many other school boards, city councils and state legislatures, the CVUSD Board held an opening prayer toward the beginning of its meetings. The prayer was usually led by a clergy member, but sometimes by a member of the Board or audience. The prayer was immediately followed by business involving young members of the audience, including student presentations, student recognitions and decisions regarding school discipline and graduation requirement waivers. Students regularly attended and actively participated in the meetings, including one student representative who sat and deliberated with the Board.

The Board adopted an invocation policy designed to conform to the U.S. Supreme Court’s parameters for “legislative” or “ceremonial” prayers articulated in previous case law. CVUSD compiled a list of established religious assemblies in Chino Valley. Once a year, CVUSD sent invitations to leaders of these assemblies. CVUSD then randomly scheduled invocations, and would limit the frequency of participation by any one assembly.

But, as with any government invocation, the devil was in the details. A government policy or practice violates the First Amendment’s Establishment Clause if it fails to pass the U.S. Supreme Court’s three-part test from the 1971 Lemon v. Kurtzman decision:

1. the policy or practice must further a secular purpose,
2. its primary effect must not advance or inhibit religion and
3. it must not foster "excessive entanglement" with religion.

The Ninth Circuit found that several facts surrounding the CVUSD invocations showed that they provided unconstitutional furtherance of a religious, rather than secular, purpose — thus failing the first prong of the Lemon test.

In reaching this conclusion, the court distinguished the relationship between the District and students from the relationship of a state legislature or town board to its constituents. The court observed that CVUSD invocations typically took place before groups of schoolchildren whose attendance is not truly voluntary and whose relationship to District decision-makers is not one of “full parity.” The students were essentially compelled to sit through the invocation so as to not miss their items on the agenda.

The court also found that extraneous public piety by Board members undermined the District’s purported secular purpose of “solemnizing the meeting.” Shortly after adopting the invocation policy, a Board member publicly described the Board’s goal as the furtherance of Christianity. The Board commonly preached to the District community and read biblical passages at its meetings. Following one invocation, one Board member commented that the participating pastor was “right, in his prayers, that I need [to] first look up to Jesus Christ for serving our students,” the court noted.

Finally, the court dismissed the policy’s stated purpose to create religious diversity, since the policy excluded from invitation several religious communities lacking critical mass to qualify as “well established” in the area.

In sum, the court held that the CVUSD prayers were not within the permitted tradition of “solemnizing and unifying prayer, directed at lawmakers themselves and conducted before an audience of mature adults free from coercive pressures to participate.”
For a public agency whose meetings include invocations, this case shows it is important to:

  • Double-check whether your agency has adopted invocation policies consistent with case law.
  • Ensure your policy includes outreach to smaller, less established religious communities and individuals.
  • Pay close attention to policy implementation, especially with regard to outreach and equal access to opportunities to participate in and lead invocations.
  • Consider the sequence of your agenda, especially if the invocation precedes matters involving children.
  • Understand that too much piety from the dais can cast doubt on whether your agency’s invocation really has a purely ceremonial purpose.
  • For educational institutions, accept that courts generally require a great distance between prayers and schools.

The CVUSD Board voted to appeal the ruling to the U.S. Supreme Court.
If you have any questions about this opinion or how it may impact your agency, please contact the authors of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.


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