The latest round of litigation over the Tangipahoa Parish School Board’s policy regarding invocations at board meetings is underway.   On June 24, 2009, the District Court for the Eastern District of Louisiana held that the school board’s practice of praying before the opening of board meetings comes within the “legislative prayer” exception articulated in Marsh v. Chambers.  However, a final determination on the constitutionality of the school board’s particular prayer policy practices must be determined at trial.

 

Note: This decision, while instructive, is not binding on Texas courts.  There continues to be no binding precedent on the constitutionality of prayer at Texas school board meetings.  It is almost a certainty, however, that whatever the decision after trial, this case will be appealed to the Fifth Circuit Court of Appeals.  When there is a final decision from that court, it will apply to Texas school boards.  It is that likelihood that makes this case worthwhile for Texas school districts to follow.

 

The Facts of Tangipahoa II

The Tangipahoa Parish School Board has adhered to the practice of opening its school board meetings with prayer since 1973---and, in this predominantly Christian community, such prayers have frequently made reference to Christian ideals.  “John Doe,” a member of the Tanigpahoa community, filed suit against Tangipahoa in 2003 on the basis that this practice was an unconstitutional violation of the Establishment Clause, which prohibits the government from “establishing religion.”  The 2003 case was eventually dismissed by the en banc Fifth Circuit in 2007 because the plaintiffs lacked standing for the suit, leaving John Doe with no remedy for the alleged Establishment Clause violations. 

 

In August 2007 after the first case was dismissed, the Tangipahoa school board adopted a new policy related to school board prayer.  The new policy authorized the secretary of the board to create a list of local religious congregations and send out letters inviting the leaders of those congregations to offer a prayer before school board meetings begin.  Religious leaders who responded to the letter were chosen to pray on a first-come, first-serve basis, with no speaker allowed to pray at consecutive board meetings or more than 3 times total during the year. No person in attendance at the board meeting was required to participate in the prayer, and the prayer was not listed as an agenda item.

 

When the Tangipahoa school board adopted the new 2007 policies, John Doe filed a new lawsuit, again alleging violations of the Establishment Clause, and requesting an injunction to prevent the school board from continuing the practice of praying before board meetings.

 

Background of School Board Prayer Litigation

School-sponsored prayer has been held unconstitutional by the United States Supreme Court.  However, it is less than clear whether prayer at a school board meeting would constitute school-sponsored prayer or would instead be considered prayer by a legislative body.  The difference in classification determines the level of scrutiny the prayer would be subjected to by the courts.

 

If prayer at school board meetings is viewed as a school-sponsored activity, it is likely to be prohibited.  The Supreme Court adheres to the “Lemon test” and its corollary “endorsement” and “coercion” tests in evaluating Establishment Clause litigation.  The Lemon test demands a strong separation between church and state in activities related to public schools and public school children.  Specifically, the Lemon test, as it has been applied in Texas, has led a court to hold that the school board violates the Establishment Clause when “the government directs a formal religious exercise in such a way as to oblige the participation of objectors.”[1]

 

If, however, school board prayer is determined to be part of the board’s legislative function, the school board would be subject to the “legislative prayer exemption,” which makes a policy of school board prayer more likely to be upheld by the courts.  The “legislative prayer exemption,” as it is termed, permits prayer before the opening of legislative sessions on the basis that “prayer is deeply embedded” in the history of the US.  Although this exemption does generally allow prayer by legislative bodies, there are still limitations on what prayers may be said. Specifically, for the prayers of a legislative body to be constitutional, there must be “no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.”[2]

 

Court Conclusion in Tangipahoa II

The Louisiana District Court ultimately concluded that the school board is a public body responsible for adopting rules related to the governance and operation of the school system.  As a public body, the school board’s functions are much more closely related to the legislature than to the activities in a school classroom or school event.  Therefore, the “legislative prayer exemption” applies to the Tangipahoa school board.  However, the court did note that applying the “legislative prayer exemption” does not automatically resolve the matter of whether or not school board prayer is constitutional.  There must be a separate inquiry into the facts surrounding the board prayer, and whether or not the prayers advance any one religion (in this case, whether the prayers specifically advance Christianity).  The court declared that it had an incomplete record on which to base the determination of whether or not the prayer opportunity advanced one faith over others, and remanded the case to the trial court in order to determine these factual issues.

 

What Does Tangipahoa II mean for Texas Schools?

This opinion does not have a direct impact on school board prayer in Texas schools.  The judgment of a Louisiana court is not binding on Texas, and the case was ultimately remanded for a trial to fully determine whether the Louisiana school district “exploited” their opportunity for prayer to proselytize for or against any particular faith or belief.  We, therefore, still have no precedent in this state as to whether or not school board prayer is constitutional.  However, the case remanded to the trial court may be appealed to the Fifth Circuit, and Fifth Circuit decisions would be binding on Texas school boards.  The rulings in Tangipahoa II may impact Texas schools in the future.

 

Regardless of whether or not the Fifth Circuit provides any input in Tangipahoa II, it is important to remember that rulings under the Establishment Clause are incredibly fact-specific, and the constitutionality of a school district’s policy may hang on the placement of a single word.  For this reason, it is particularly important for Texas school districts to consult legal counsel regarding their practice, policy, or procedure related to invocations at the beginning of board meetings.

 

 

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