Written by Don Byrd

It’s one thing for a government meeting to open with a solemn and respectful prayer delivered by a chaplain, or local member of the clergy. What if the meeting is a school board? And what if the person giving the prayer is a child attendee of a local public school?

This week, the 5th Circuit Court of Appeals ruled that a Texas school district may continue its practice of opening school board meetings with a student-led expression that is typically a prayer. The decision adds a new layer of interest to the question of when and under what circumstances the U.S. Constitution allows the government to open official proceedings with prayer, particularly when the public school system is implicated.

Here is a little background.

The Supreme Court in 2014 upheld “legislative prayer” led by area clergy to open commission meetings of the Town of Greece, NY, because the circumstances were not coercive, the prayers were not disparaging of other faiths or proselytizing, and the policy of choosing prayer-givers was not discriminatory.  Both the 4th and 6th Circuits are currently (re)considering cases that explore the limits of that Supreme Court decision, Town of Greece v. Galloway.

In the context of school board meetings, courts typically have declined to apply the Supreme Court’s legislative prayer approach to church-state analysis and instead have treated them more like school prayer cases, where the likely presence of school children raises the possibility of coercion in a way that requires greater scrutiny. In this case, however, the 5th Circuit determined the Birdville policy and practice should be considered just another legislative prayer case, and accordingly upheld the school district against an Establishment Clause challenge.

Here is an excerpt from that portion of the opinion:

We do not overlook [the plaintiffs’] notion that the presence of students at BISD board meetings distinguishes this case from Chambers and Galloway. That is significant, because courts must consider “both the setting in which the prayer arises and the audience to whom it is directed.” Children are especially susceptible to peer pressure and other forms of coercion. Nonetheless, the presence of students at board meetings does not transform this into a school-prayer case. There were children present at the town-board meetings in Galloway, as the dissenting and lower court opinions noted; the Court nonetheless applied the legislative-prayer exception. Moreover, here, as in Galloway, “the prayer is delivered during the ceremonial portion of the . . . meeting.” 

The opinion does acknowledge that other courts have ruled that school board meetings call for school prayer analysis. In contrast to those cases, however, the court emphasized that here no student representatives actually sit on the board, the board members do not themselves deliver the invocations, and student representatives are not expected to attend the meetings.

The Associated Press reports the plaintiffs plan to ask the entire 5th Circuit to re-hear the case, and argue the ruling conflicts with other circuits on the question. Stay tuned.