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September 5, 2011 School Law Bullet Number 74
Third Circuit Rules On Constitutionality of Opening Ceremonies
By
The Third Circuit Court of Appeals recently determined that a school board’s practice of opening meetings with a moment of prayer or silence violates the First Amendment. School Boards with a similar practice or custom should review this issue with their solicitor to avoid potential problems.
Indian River School District Practice Raises Question
A Delaware school district is once again setting precedent for how not to address religious issues in public schools. The Indian River School District was established in 1969 and has always opened its regularly-scheduled meetings with a moment of prayer or silence.
This practice was reduced to a formal policy in 2004. The policy states that each public meeting will be “solemnized” with a moment of prayer or silence. Volunteer members of the Board took turns opening each meeting with either a prayer or a moment of silence. If the member scheduled to perform this task chose not to participate, the next member on a list maintained by the Board president would do so. The policy states that this “opportunity shall not be used or exploited to proselytize, advance or convert anyone, or to derogate or otherwise disparage any particular faith or belief.”
Further, no member of the public, school staff, or student body is required to participate in the prayer or moment of silence; the Board announced that this practice is a voluntary act of the Board members only. The policy also states that each prayer will be non-sectarian in nature. Almost all of the prayers presented over the years invoked Christian concepts or principles. A moment of silence was rarely invoked.
Two sets of parents filed complaints on behalf of their children. The parents argued that the opening prayer impermissibly promoted religion or affiliated the Board with a single religion, thereby discriminating on the basis of religious beliefs and practices. They claimed that because students regularly attend Board meetings, it is a violation of the First Amendment to have a moment of prayer during the meeting. Students attend Board meetings for several reasons including response to a disciplinary matter, as representatives of student government, to participate in presentation of the flag at the start of the meeting, to performance a work of music or theater, to receive recognition for an accomplishment, and/or to provide comment on issues pending before the Board.
Board Based Policy on Earlier Supreme Court Decision
The Board argued that it is a legislative body and therefore opening with a prayer does not violate the Constitution. The Board relied on a decision of the United States Supreme Court in 1983 that established that the long-standing practice of state and federal legislative bodies of opening sessions with prayer is constitutional. That decision was based on a review of the events surrounding the creation of the United States Constitution and noted that the drafters of the Constitution approved hiring a chaplain to open sessions of Congress concurrently with the drafting of the Bill of Rights. Thus, the Supreme Court concluded, the first Congress believed that an opening prayer is not in violation of the Establishment Clause.
Rather, the practice of invoking an ecumenical prayer at the start of legislative sessions is considered an acknowledgement that the United States is “a religious people whose institutions presuppose a Supreme Being.”
The Third Circuit held that a school board is not a legislative body. Like all school boards, the Indian River Board is charged with all aspects of the administration of the school district, including creating and implementing policies, school schedules and curriculum, and maintaining school buildings. The Third Circuit determined that because the Board’s sole area influence is public education and all of its actions directly affect public school students, the board cannot be compared to a general legislative body.
The nature of the board’s responsibilities and the active role that students take in the meetings require an analysis of the opening prayer that balances the liberty interests of students and the board’s purposes.
“Lemon Test” Shows Opening Prayer Practice Could Be Misconstrued as Religious
Because the legislative exception does not apply, the Board’s practice was analyzed under the well-known Lemon test, i.e., (1) whether the government practice had a secular purpose; (2) whether its principal or primary effect advanced or inhibited religion; and (3) whether it created an excessive entanglement of the government with religion.
The Court took at face value the Board’s stated purpose for the opening prayer, to solemnify the meeting. However, the opening prayer was held to be unconstitutional because its primary effect was to endorse the Christian religion.
Although the Board’s policy allowed the opening prayer to reference any religious view, the prayers exclusively referenced the Christian religion. Thus, an objective observer of a board meeting would reasonably conclude that the Board endorsed that religion.
Further, the formality surrounding the opening prayer, the fact that the prayer was required to occur at each meeting, and the involvement of individual Board members in selecting and reciting each prayer were found to create an excessive entanglement between the Board and religion.
Bottom Line for Schools
While a moment of silence will more easily pass constitutional muster than a prayer, this opinion makes clear that the implemention of such a policy is paramount to its validity. School boards that open their meetings with a prayer or moment of silence should review their policy and practice with their solicitor.
*This School Law Bullet is meant to be informational and does not constitute legal advice.
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