When the full U.S. Court of Appeals for the 9th Circuit, in San Francisco, voted last week not to rehear a case in which a panel had struck down a California school district’s policy inviting clergy members or others to lead prayers before its school board meetings, there were quite a few voices in dissent. And they may have been aiming their message not so much at their colleagues as at the U.S. Supreme Court.
Six members of the court formally dissented from the full court’s decision not to rehear the case of Freedom From Religion Foundation v. Chino Valley Unified School District. They said the unanimous three-judge panel was wrong when it struck down the district’s school board prayer policy last July.
Those dissenting judges, plus one more active judge, also signed on to an opinion by a senior circuit judge that also would have upheld the district’s policy. (The senior judge, Diarmuid F. O’Scannlain, noted that as a semi-retired member of the court, he did not have a formal vote in the rehearing request, but he could still participate in the discussion.)
For most of the nation’s federal appeals circuits, a vote of six or seven active judges would be enough to grant rehearing. But on the 9th Circuit, which covers nine Western states and has 23 active judges, it takes a majority of those active judges—12 votes—to rehear a case.
The panel held in July that the Chino Valley district’s policy, which calls for clergy members with congregations within the district to lead prayers, violates the First Amendment’s prohibition against government establishment of religion.
“Unlike a session of Congress or a state legislature, or a meeting of a town board, the Chino Valley Board meetings function as extensions of the educational experience of the district’s public schools,” the 9th Circuit panel said. “The presence of large numbers of children and adolescents, in a setting under the control of public-school authorities, is inconsonant with the legislative-prayer tradition.”
The school board of the 28,000-student district in Southern California sought the rehearing from the full 9th Circuit, which was denied on Dec. 26.
Writing the dissent for himself and five other active members of the 9th Circuit, Judge Ryan D. Nelson said the board’s policy did not conflict with Town of Greece v. Galloway, a 2014 Supreme Court decision that upheld prayers at a town council meeting.
Nelson said the establishment clause legal test relied upon by the panel (the three-part test from the 1971 case Lemon v. Kurtzman) had perhaps been replaced by Town of Greece and other recent high court rulings.
O’Scannlain, in his opinion, stressed his disagreement with the panel’s view that the presence of students at school board meetings separated such sessions from the traditional legislative meeting.
“The panel’s opinion is dripping with unrestrained urgency to insulate public school students from any hint of exposure to religion even outside the classroom,” O’Scannlain wrote. “Plainly, the establishment clause does not require such extreme measures.”
He also stressed that the now-undisturbed panel decision creates a fresh circuit split over the constitutionality of school board prayers, with the U.S. Court of Appeals for the 5th Circuit, in New Orleans, having upheld in 2017 a Texas district’s policy of having students lead prayers.
Although there are notable differences in the two districts’ policies, they share a common setting of a school board meeting, O’Scannlain said.
While neither O’Scannlain nor Nelson explicitly suggested that the Supreme Court resolve the circuit split, that seemed to be the message being sent between the lines.
A version of this news article first appeared in The School Law Blog.