Public school boards are an integral part of the public school system and must not advance or endorse religion. School boards cannot schedule prayer as a part of their meetings, invite local clergy to give invocations, or engage in religious ritual at any time during school-sponsored board meetings.
While the U.S. Supreme Court has allowed prayers to be held as part of state legislative and local council meetings, those decisions do not grant blanket approval for prayer by school boards. The Court’s decision in Town of Greece v. Galloway, permitted sectarian legislative prayers at a town’s meetings. The justices noted that the legal question was “fact sensitive” and depended upon “both the setting in which the prayer arises and the audience to whom it is directed.” 134 S.Ct. 1811, 1825 (2014); Id. at 1838 (Breyer, J., dissenting); Id. at 1851 (Kagan, J., dissenting).
Over 60 years of U.S. Supreme Court decisions have affirmed that religious ritual and indoctrination are inappropriate and illegal in public schools, including at graduations and other school-sponsored events. Over 50 years of Supreme Court precedent has firmly ruled school prayer or prayer at school events unconstitutional even if the prayer is non-denominational or supported by a majority. The First Amendment protects minority and individual rights of conscience from tyranny of the majority. A school board meeting is a school-sponsored event and is subject to Establishment Clause precedent involving public schools.
Unfortunately, some school boards across the country continue to violate the Constitution by conducting prayer. If your school board is praying, you may contact school district officials to inform them that they are violating your constitutional rights, and report this violation to FFRF. FFRF has staunchly defended student and parental rights in this area, including by challenging them in court. See Nielson v. District Five of Lexington and Richland Counties
State of the Law on School Prayer
The law is absolutely settled that it is unconstitutional for public schools to sponsor prayer, devotionals or religious indoctrination. See McCollum v. Bd. of Ed,, 333 U.S. 203 (1948) (striking down religious instruction in public schools); Engel v. Vitale, 370 U.S. 421 (1962) (declared prayers in public school unconstitutional);. Abington Township School District v. Schempp, 374. U.S. 203 (1963) (declared devotional bible reading and recitation of the Lord’s Prayer unconstitutional in public schools). The Court in Schempp stated that the principles prohibiting prayer in school were “so universally recognized” that the court did not cite a single case in affirming those principles in its recent Engel decision. Id. at 220-21. The Court reaffirmed:
“The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” Id. (quoting Engel, 370 U.S. at 430-31).
Two of the most recent Supreme Court cases involving the Establishment Clause as it relates to prayer in public schools are instructive. In Lee v. Weisman, the Court held that prayers at a school graduation violate the Establishment Clause. 505 U.S. 577 (1992). In Santa Fe Indep. Sch. Dist. v. Doe, the Court held that the school district violated the Establishment Clause when it approved so-called student-led prayers over the intercom at high school football games. 530 U.S. 290 (2000). The Court also ruled unconstitutional the practice of a school holding a vote of students over whether to have graduation prayer.
Lee and Santa Fe stand for the proposition that it is not a “get out of jail free card” for school boards to claim that student attendance at meetings is merely voluntary. Students attend school board meetings for a multitude of reasons and they have a right to attend without having their constitutional rights violated. Some school boards even include a student member, which adds further injury. As the school board prayers are “authorized by a government policy and take place on government property at government-sponsored school-related events,” they are considered government speech that is subject to the Establishment Clause. Santa Fe, 530 U.S. at 302.
The School Board Prayer Cases
Two U.S. circuit courts of appeals have expressly ruled that school board prayers are unconstitutional.
In Coles v. Cleveland Bd. of Ed., the Sixth Circuit Court of Appeals, which encompasses Michigan, Ohio, Kentucky and Tennessee, determined that school board meeting prayers are unconstitutional. 171 F.3d 369, 371 (6th Cir. 1999). The reasoning in Coles is particularly helpful in understanding the differences between prayer at school board meetings and other “deliberative” or legislative bodies. As an integral part of the school system, the court held that school board meetings are more like school-sponsored events than legislative meetings. The court relied on a variety of factors, including the fact that:
- Meetings are conducted on school property
- School officials conduct the meetings
- School-related issues are the focal point of discussion at meetings
- Students have an incentive to attend meetings since they cannot voice their opinion through the normal electoral process
- Students have an incentive to attend meetings since the subject-matter of board meetings directly affects them
- Students challenging disciplinary action must appear before the board
- Students are often invited to attend to receive honors or awards
- Students often interact with the board
In contrast, the court pointed out that Marsh v. Chambers, 463 U.S. 783 (1983), the precedent upon which Galloway is predicated, is not a rubber-stamp that makes “government-sponsored prayer at all ‘deliberative public bodies’ . . . presumptively valid.” The case illustrates that school boards are an integral part of the public school system and are outside of the narrow holdings in Marsh and Galloway.
The Third Circuit Court of Appeals, which encompasses Pennsylvania, Delaware and New Jersey, also struck down prayers at public school board meetings. In Doe v. Indian River School District, the court emphasized that school board prayer is analogous to other school prayer cases when it comes to protecting children from the coercion of school-sponsored prayer. 653 F.3d 256, 275 (3d Cir. 2011). In that case, the court also held that the school board meetings are in “an atmosphere that contains many of the same indicia of coercion and involuntariness that the Supreme Court has recognized elsewhere in its school prayer jurisprudence.” Id.
The court’s “decision [was] premised on careful consideration of the role of students at school boards, the purpose of the school board, and the principles underlying the Supreme Court’s school prayer case law.” Id. at 281. The court concluded that the school board prayer policy “[rose] above the level of interaction between church and state that the Establishment Clause permits.” Id. at 290.
Two other federal circuit courts have had occasion to address school board prayers. In both cases (which predate the Supreme Court’s ruling in Galloway), the prayers were found to be unconstitutional given that they were sectarian. See Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188 (5th Cir. 2006), dismissed on other grounds, 494 F.3d 494 (5th Cir. 2007) (finding a school board’s practice of opening meetings with sectarian prayer unconstitutional); Bacus v. Palo Verde Unified Sch. Dist., 52 Fed. Appx. 355, (9th Cir. 2002)(unpublished) (finding that a school board violated the Establishment Clause in allowing prayers “in the name of Jesus”).
Conclusion
Public school boards are not an entity separate from the public school; they are integral to public education and cannot be disassociated from the students they serve. Members of the public school board set the tone. If they model disrespect for the secular principle that undergirds our public school system, they consequently signal disrespect for the rights of conscience of a captive audience of impressionable students under their authority, and their parents. They send a message that they will not be guardians of the constitutional rights of students, but rather consider their public trust to be an opportunity to force their personal religious views on others.
Families and the community rely on public school boards to set policies, procedures and standards for education. These discussions occur and decisions are made during regularly scheduled meetings on school property. Just as public school teachers cannot inculcate prayer, public school boards cannot do so.
Board members are free to pray privately or to worship on their own time in their own way. The school board, however, cannot lend its power and prestige to religion, amounting to a governmental endorsement of religion that excludes 19% of the adult U.S. population and one in three young adults (ages 18-29) who are nonreligious,
By Atty. Patrick Elliott and Law Clerk Aaron Loudenslager
Last updated September 2014.
