School Board Can’t Use Prayer Policy Defense

(CN) - The Supreme Court on Tuesday passed on claims that a Delaware school board meets the establishment-clause exception that allows legislative bodies to open their sessions with a prayer.

Two couples who lived and had children enrolled in southern Delaware's Indian River School District filed suit over the school board's long-standing policy of opening meetings with a prayer. The lawsuit also said that religion was becoming pervasive in the school district, with Bible distribution to students in 2003, teachers regularly referring to religion during classes, and prayer recitation at "graduation ceremonies, athletic events, potluck dinners, ice cream socials, awards ceremonies, and other events."

Students involved in any of the district's three Bible Clubs also allegedly received "special privileges" like donuts and being able to head the lines to lunch.

The parties settled on everything except the school board prayers in January 2008, and one set of plaintiffs moved out of the district and voluntarily dismissed their remaining claims.

As the other set of plaintiffs pursued judgment on the school board prayer, a federal judge sided with the school district on the basis of a legislative exception to the establishment clause. That exception derived from the Supreme Court's 1983 decision in Marsh v. Chambers, which held that Nebraska's practice of opening legislative sessions with a prayer was not a violation of the First Amendment's establishment clause.

On appeal in August 2011, however, the 3rd Circuit said that Marsh did not apply and reversed.

"The very purpose of the Indian River School Board distinguishes it from other deliberative bodies," the 72-page decision stated. "For this reason, the fact that other courts have extended Marsh to other legislative or deliberative bodies is not relevant."

The unanimous panel emphasized the fact that the Marsh decision expressly said that the presence of children would affect the court's calculus.

In rejecting the school board's petition for certiorari on Tuesday, the Supreme Court did not issue any comment.

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