The U.S. Supreme Court on Monday declined to take up a case about prayers before school board meetings, leaving continuing uncertainty over the constitutionality of the practice.
The justices declined without comment to hear the appeal in American Humanist Association v. Birdville Independent School District (No. 17-178). In another case, the court declined to take up a challenge to the Mississippi state flag, which encompasses the Confederate battle flag, and state laws requiring that it be flown near schools and that students be taught respect for it. I wrote separately about that case.
In the prayer case, a former student from the Texas district and the Washington-based humanists’ group sought review of a decision by the U.S. Court of Appeals for the 5th Circuit, in New Orleans, which upheld the district’s policy of permitting students to lead prayers before board meetings.
The appeals court had said in its March decision that the key question was “whether this case is essentially more a legislative-prayer case or a school-prayer matter.”
In 2014, the Supreme Court upheld a New York state town’s practice of opening its municipal meetings with prayers. Justice Anthony M. Kennedy wrote for the court in Town of Greece v. Galloway that the town does not violate the First Amendment’s prohibition of government establishment of religion by having a prayer “that comports with our tradition and does not coerce participation by nonadherents.”
The key question since that decision has been whether school boards that open their meetings with prayers are just like general municipal bodies such as town councils and county boards, or whether their involvement as part of the educational process, with students frequently present at such meetings, make school boards similar to schools, implicating a separate line of church-state decisions.
The 5th Circuit court held that Birdville’s practices fell under the Town of Greece line of cases allowing legislative prayers.
“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.”
In their high court appeal, the former student, Isaiah Smith, and the humanists’ group said the federal appeals courts were split on whether school board prayers should be viewed the same as prayers in state legislatures and town councils.
“This case presents a recurring question of exceptional constitutional importance, affecting millions of students nationwide, that is ripe for this court’s review,” said the appeal.
The challengers say the school district allowed students to lead “invocations” at its meetings from 1997 to 2015. That year, the school board changed the policy to one of “student expression,” but made clear that students chosen for the task could still deliver a prayer. In practice, most students have delivered prayers or religious poems, court papers say.
In a brief urging the justices not to take the case, the 24,000-student Birdville school district argued that the 5th Circuit court was correct and that school board meetings are not the same as school events such as graduation ceremonies and football games where the Supreme Court has struck down clergy- or student-led prayers.
“Although school boards deliberate and adopt policies that govern their school district, board meetings are not student-centered activities like graduation and football games,” the district’s brief said. “Prayer to open a school board meeting which is brief, solemn and respectful in tone, and which does not proselytize or denigrate other beliefs or non-beliefs fits within the historical tradition of legislative prayer.”
The justices declined the appeal on Nov. 27, after it had appeared on their conference list just one time.
A version of this news article first appeared in The School Law Blog.