The Devilish Details on Student Prayer at Board Meetings

by Dean Micknal

The Fifth Circuit Court of Appeals issued an opinion last month that was widely reported as upholding the right to begin school board meetings with prayer.  Relying on the “legislative-prayer exception”, the Court unanimously rejected an argument by the American Humanist Association that Birdville ISD’s policy of allowing students to deliver invocations before school-board meetings ran afoul of the First Amendment’s Establishment Clause.

Headlines related to cases involving constitutional issues always give me a bit of heartburn.  This is especially true when the case delves into issues involving what is commonly referred to as the separation of church and state.  There is a good reason the Fifth Circuit has previously described this area of law as the “murky waters of the Establishment Clause.”  These types of constitutional issues are almost always incredibly fact-dependent and require careful consideration of one or more detailed legal tests.  This makes it difficult and often-times dangerous to attempt to distill a First Amendment case into a few catchy words.

This case is a perfect example of why districts should invoke the late, great Paul Harvey and make sure to consider “the rest of the story” when presented with this sort of information.  Contrary to what the headlines suggest, the Court was careful to avoid making any sweeping declarations as to the legality of prayer at school board meetings or in public schools in general.  In fact, the most telling statement can be found in the last paragraph of the last page, where the Court concludes that “[a]lthough it is possible to imagine a school-board student-expression practice that offends the Establishment Clause, this one, under its specific facts, does not.”

This parting thought is as much a warning as an approval. A careful reading of the decision shows that the Court’s application of the legislative-prayer exception was dependent on consideration of a multitude of factors, including, but not limited to:

  • The composition of the Board of Trustees;
  • The physical location of the Board meetings;
  • The roles and responsibilities of the Trustees;
  • The roles and responsibilities of any students attending Board meetings;
  • The composition of the audience attending the meetings;
  • Policies and practices regarding attendance during the ceremonial portion of a meeting;
  • Policies and practices regarding attendee participation/response to the ceremonial portion of a meeting;
  • The format/structure of the ceremonial portion of a meeting;
  • Policies and practices regarding selecting presenters for the ceremonial portion of a meeting;
  • Policies and practices regarding development and delivery of the presentation;
  • Factual characteristics regarding the actual tone of invocations given during ceremonial portion of a meeting;
  • A determination regarding who is the primary focus of invocations given during ceremonial portion of a meeting; and
  • Policies and practices regarding endorsement and/or disclaimer of viewpoint expressed during ceremonial potion of a meeting.

This does not necessarily mean that any deviation from the facts in the Birdville ISD decision would be fatal for purposes of defending a similar lawsuit.  However, each and every deviation is an opportunity for opposing counsel to distinguish a challenged policy from this narrow holding, and if successful, compel a new round of overly broad headlines.

If you have questions about how your District’s policies regarding prayer at Board meetings matches up with this ruling, please don’t hesitate to contact the school attorneys at Leasor Crass, P.C.