Between a Rock and a Hard Place: the Struggle to Analyze School Board Prayer and a New Method of Establishment Clause Analysis

• Publication year: 2021

Between a Rock and a Hard Place: The Struggle to Analyze School Board Prayer and a New Method of Establishment Clause Analysis

Johnathan Watts

BETWEEN A ROCK AND A HARD PLACE: THE STRUGGLE TO ANALYZE SCHOOL BOARD PRAYER AND A NEW METHOD OF ESTABLISHMENT CLAUSE ANALYSIS

Abstract

The constitutionality of public school board prayer under the First Amendment Establishment Clause has vexed lower federal courts for over two decades. With only an inconsistent string of Supreme Court cases to rely upon, lower courts have been forced to choose between competing doctrines and frameworks that embody different interests and were designed for different circumstances.

Nowhere is this struggle more aptly displayed than in the current split between the Fifth Circuit in American Humanist Association v. McCarty and the Ninth Circuit in Freedom From Religion Foundation v. Chino Valley Unified school Board. The Fifth Circuit argued that the school board prayer of the Birdville Independent School District is constitutional because it falls under the Supreme Court's legislative prayer doctrine. Relying on the long tradition of opening American legislatures with prayer dating back to the Founding Era, the doctrine upholds such prayers in other state-based gatherings. Conversely, the Ninth Circuit struck down Chino Valley's school board prayer, arguing that the school board is too intertwined with the school day and student life, and therefore the prayer should be analyzed under school prayer caselaw, using either the Lemon or coercion tests that struck down all such prayers at public school events.

This Comment argues that neither of these approaches is appropriate alone to address the constitutionality of school board prayers challenged under the Establishment Clause. School board meetings are similar to state legislative sessions in that they mostly involve adults who are voluntarily present and can make their own judgments about whether to attend or listen to the prayer. But public school boards are undeniably intertwined with the public school day and sometimes do involve students who are young and impressionable, along with other participants who have no real choice but to appear at the meeting, necessarily implicating coercion concerns. However, school boards are much less student-centered than other regular school activities where the risk of coercion is heightened. Adopting one of these Establishment Clause approaches for this unique and variable setting, as the Fifth and Ninth Circuits have done, leads to unsatisfactory analysis and ultimately fails to capture all the concerns inherent in this unique setting.

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This Comment proposes an original balancing test—one that protects parties against religious coercion and respects traditional practices—that draws on and sequences two Supreme Court approaches to the Establishment Clause. Under this test, the coercive effect of the prayer policy should first be measured to prevent blatantly coercive practices from constitutional approval solely because they have a longstanding history. Then, where a practice passes this initial threshold, any coercive effect will be balanced against the history and tradition of acknowledging prayer and religious heritage in public life. This test more fully encapsulates the concerns inherent in the school board setting, honors our tolerance of some religious acknowledgment in public life, unifies elements of previously disparate Establishment Clause precedent, and is based on recent Supreme Court jurisprudence.

Introduction............................................................................................. 275

I. Background: The Two Relevant Establishment Clause Approaches..................................................................................... 279

A. School Prayer ........................................................................... 280

1. Animating Principles in Early School Prayer Cases.......... 280
2. Lee, Santa Fe, and the Rise of Coercion Analysis .............. 284
3. Factors to Consider in Coercion Analysis ......................... 287

B. The Legislative Prayer Doctrine .............................................. 289

1. The History of Legislative Prayer ...................................... 290
2. The Legislative Prayer Doctrine and Marsh v. Chambers . 291
3. Allegheny Refines Marsh.................................................... 293
4. Lower Courts Found Harmony in Precluding Marsh in Non-Legislative Settings ..................................................... 295
5. The Turn Towards History in Van Orden v. Perry ............. 296
6. Embracing Marsh and History in Town of Greece v. Galloway ............................................................................ 298
7. Pure Historical Analysis Still Limited to the Legislative Setting ................................................................................. 300

II. School Board Prayer................................................................... 301

A. Between a Rock and a Hard Place: The Early School Board Prayer Cases ............................................................................ 302
B. The Fifth Circuit Expands Marsh to the School Board Setting 305
C. The Ninth Circuit Chooses Lemon Over Marsh ....................... 307

III. A New Test For a New Setting.................................................... 308

A. Neither Marsh nor Lee Provide an Appropriate Analytical Framework ............................................................................... 309
B. Balancing Coercion and History.............................................. 312

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C. Freedom From Religion Foundation v. Chino Valley Unified School District Board of Education.......................................... 315

1. Coercion Analysis............................................................... 315

D. American Humanist Association v. McCarty........................... 318

1. Coercion Analysis............................................................... 318
2. Balancing Coercion and History........................................ 321

Conclusion................................................................................................. 322

Introduction

"If you could bow your heads and join me in a prayer," requests Birdville High School student Kaiya Harris-Stephens as she stands at a lectern at the front of the Birdville Administration Building boardroom.¹ Beside her stands a classmate who just finished leading the standing audience of adults and students in the U.S. and Texas Pledges of Allegiance.² In front of her, raised above the crowd on a wood-paneled platform flanked by flags, stand the members of the Birdville Independent School District Board.³ At every monthly meeting, the Board invites student volunteers to open the public session with the Pledge of Allegiance and a student expression.⁴ For Ms. Harris-Stephens's student expression, the Board members and audience respectfully bow their heads in unison and listen to her prayer, which requests that the "Heavenly Father" provide protection and guidance in the coming school year.⁵ The audience and Board unanimously conclude the prayer with an "Amen" before sitting down to proceed with the remaining agenda.⁶

Over one thousand miles away, the residents of the Chino Valley Unified School District similarly gather approximately eighteen times per year for their public school board meetings.⁷ After being led in the U.S. Pledge of Allegiance by an elementary school student, the Board President often introduces a local religious leader to lead the assembly in prayer.⁸ On one occasion, Pastor Lehman of the Gateway Community Church, a Christian congregation, instructed the

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audience to seek the wisdom to obtain favor from the Lord.⁹ Immediately following the collective "Amen," students from the Cal Aero Preserve Academy band performed in a student showcase that nearly always follows the invocation.¹⁰ The Board and audience listened to the performance, congratulated the students, and continued to the rest of the business before the Board.¹¹

These scenes from the Birdville Independent School District and Chino Valley Unified School District board meetings demonstrate the next frontier in the decades-long struggle to faithfully interpret and apply the Establishment Clause of the U.S. Constitution.¹² School boards are generally charged with administering and governing the public school education of thousands of students. Similar to a legislature, these boards vote on proposals, set policy, craft budgets, and oversee school personnel and performance. However, more than a mere administrative body, school boards are deeply intertwined with the school day and necessarily affect every student in their jurisdictions. As a consequence, students regularly attend board meetings to perform, receive recognition, and petition and engage the democratic body that makes decisions on their behalf. This mixture of elements has proven legally difficult. Indeed, when it comes to the best way to classify and analyze prayers offered at the beginning of public school board meetings, federal circuit courts are split.¹³

Prayer that occurs at the direction, promotion, or encouragement of a government body such as a school board naturally raises Establishment Clause concerns. However, the unique characteristics of the school board invokes two competing Establishment Clause principles: (1) the desire of public bodies to solemnify meetings and honor the best of our religious traditions; and (2) the necessity of protecting impressionable students from government-sponsored religious coercion. Opponents who bring Establishment Clause challenges to school board prayer practices argue that they are the equivalent of unconstitutional school prayer. Conversely, proponents of these policies insist that they qualify as constitutional legislative prayer. The result of these competing...