The federal Third Circuit Court of Appeals recently determined that a school board’s practice and policy of praying, or having a moment of silence, before each public board meeting was a violation of the Establishment Clause of the United States Constitution. Doe v. Indian River School District, ____ F.3d ____; Doc No 10-1819 (3rd Cir, Aug. 5, 2011). In so doing, the court held that the limited legislative exception for an opening prayer established by the U.S. Supreme Court in Marsh v. Chambers, 463 U.S. 783 (1983) did not apply because of the influence and visibility a school board has over students that may be in attendance.
The Indian River School District (IRSD) is a public school district in Delaware that was created in 1969. Since that time, IRSD has had a practice of opening each school board meeting with a prayer or moment of silence led by a board member. In 2004, after some controversy within the District regarding prayer at graduation ceremonies, the District passed a policy related to prayer at school board meetings.
The policy put into writing what had already been the practice of the board. Specifically, each meeting a different board member, on a rotating basis, would be given the opportunity to lead the board in a prayer or a moment of silence in order to “solemnize” the proceedings. If a board member passed on the opportunity, the opportunity would then move to the next board member. The policy stated that the prayer could be nonsectarian or reflect any religious/spiritual view and be to any person or deity. The policy further noted that the prayer could not be used for the purpose of proselytizing.
The record reflected that the vast majority of board meetings opened with a prayer rather than a moment of silence and the prayers were almost exclusively Christian in nature (while some prayers were “historical” prayers). The record also reflected that for various reasons students regularly attended board meetings – some because they were required to be there to give reports, present colors, or perform for the board, while some would come to observe and/or comment on the actions of the board during the public comment period.
Two sets of parents brought suit claiming the policy violated the Establishment Clause of the First Amendment to the U.S. Constitution. The district court disagreed and held that prayer to open a school board meeting did not violate the Establishment Clause because doing so is a traditional practice of legislative bodies and not inherently religious in nature under the Supreme Court’s decision in Marsh. The plaintiffs appealed and the appeals court overturned the decision.
The appeals court saw the main issue of the matter as needing to determine which cases were more appropriate to apply: school prayer cases or the legislative exception recited in Marsh. The court determined that the school prayer cases were most applicable and that, accordingly, the policy violated the Establishment Clause because it was an endorsement of religion by the board. In so holding, the court relied greatly on the presence of students at board meetings and the influence that this policy would have on them. In essence, the policy and practice of the board of education praying a Christian prayer prior to board meetings would impermissibly endorse religion to those in attendance, especially the District’s students. This was exacerbated by the coercive effect of these prayers on students that were required to be in attendance at the meetings. Finally, the court held that the exception in Marsh was just that, an exception (and a narrow one at that). Thus, even though a school board is a legislative body, their role and place in the community is different than a state legislature as was the issue in Marsh, and the exception created is, therefore, inapplicable.
While the decision in Indian River is not presidentially binding in Michigan, the court’s analysis does give incite as to what other federal court’s may also decide if pressed on this issue. The case may very well also be one ripe for acceptance by the U.S. Supreme Court.