A federal appeals court has upheld a Texas school district’s policy of permitting students to deliver prayers before school board meetings.
“We agree with the district court that ‘a school board is more like a legislature than a school classroom or event,’” said the unanimous three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans.
The court ruled in a case involving the Birdville Independent School District, whose policy calls for students to deliver a statement before its monthly board meetings, which can be a poem or some other remarks, but has frequently been a religious invocation referencing Jesus Christ, court papers say.
The policy was challenged by Isaiah Smith, a 2014 graduate of the Birdville High School who is a member of the American Humanist Association. Smith attended board meetings as a student and continues as an alumnus, and he says he is offended because he believes the district is favoring religion over nonreligion.
Smith and the association sued the school board under the First Amendment’s prohibition on a government establishment of religion, and they sued board members individually.
A federal district court granted summary judgment to the school board based on the U.S. Supreme Court’s rulings recognizing legislative prayer as a U.S. tradition that does not violate the establishment clause.
In its March 20 decision in American Humanist Association v. Birdville Independent School District, the 5th Circuit court panel said the key question was “whether this case is essentially more a legislative-prayer case or a school-prayer matter.”
The Supreme Court has upheld legislative prayers in the context of state legislatures and municipal governments. The court’s most recent decision, in Town of Greece v. Galloway, in 2014, upheld prayers before town meetings as long as they don’t denigrate nonbelievers or religious minorities.
The Town of Greece decision left an open question about prayers at school board meetings. Some federal appeals courts to address the issue have ruled that such meetings are akin to school, because of the frequent presence of students and for other reasons. Those courts have applied the high court’s tests for evaluating government establishment of religion, and have barred such prayers.
Writing for the 5th Circuit in the Birdville case, U.S. Circuit Judge Jerry E. Smith said some of those other appeals court cases involved situations in which there were student representatives on the school board.
“In contrast, no students sit on the BISD board, BISD board members do not deliver the invocations, and the student representatives are not expected to attend board meetings,” Smith said.
The court held that the legislative-prayer exception should apply to the Birdville school board’s policy.
“The BISD board is a deliberative body, charged with overseeing the district’s public schools, adopting budgets, collecting taxes, conducting elections, issuing bonds, and other tasks that are undeniably legislative,” the court said. “In no respect is it less a deliberative legislative body than was the town board in Galloway.”
The court also rejected arguments that the practice in Birdville was constitutionally troublesome because some board members bowed their heads as the invocations were delivered.
“It would be nonsensical to permit legislative prayers but bar the legislative officers for whom they are being primarily recited from participating in the prayers in any way,” Smith wrote. “Indeed, the Supreme Court did not take issue with the fact that Town of Greece board members bowed their heads during invocations.”
The decision, arguably, creates a federal circuit split on school board prayers that could lead to the Supreme Court taking up the issue.
A version of this news article first appeared in The School Law Blog.