PASADENA, Calif. (CN) – Public school boards should be allowed to open their meetings with an invocation just like other legislative bodies do, an attorney for a Southern California school district told a Ninth Circuit panel Wednesday.
The Chino Valley Unified School District Board’s fight dates back to 2014, when the Freedom from Religion Foundation sued to stop what it called meetings that “resemble a church service more than a school board meeting, complete with Bible readings by board members, Bible quotations by board members, and other statements by board members promoting the Christian religion.”
A month before the group’s lawsuit, the school board passed a policy to allow prayers from community clergy members before meetings and those present did not have to participate.
A federal judge sided with the group in March 2016, finding the prayers before board meetings unconstitutional.
Arguing on behalf of the school board before a Ninth Circuit panel on Wednesday, attorney Robert Tyler of Tyler & Bursch said the scope of the appeal is solely the prohibition of invocations, and the school board does not challenge the court’s ruling on Bible readings and proselytizing.
Tyler said only a minority of board members said prayers during board meetings or made religious statements. He referred to the Bible reading and proselytizing as “problematic statements” but those occurred hours after the invocation.
He asked the panel to find the invocation policy constitutional and reverse that aspect of the federal judge’s injunction.
Circuit Judge Stephen Reinhardt read a quote from one school board member that said the board’s “one goal is under Jesus Christ.” He then asked, “It was represented to the audience, to the school children, to everyone, that it was the goal of the school board. Nobody from the school board said, no that’s not our policy?”
Tyler said the school board did so by adopting a policy that limits the speech of board members.
Reinhardt then asked the purpose of prayer before a board meeting, and whether it was “to strengthen them in their performance and their duties?”
“It is,” Tyler answered and referred the panel to the case Town of Greece v. Galloway, which allowed sectarian legislative prayers at a town’s meeting. “It helps set aside the petty differences, seek divine guidance and solemnize these opportunities for the school board, for the legislative body,” Tyler said.
“OK, why is it so much that the important business of the board is conducted before the invocation? Are they not inspired when they make their disciplinary decisions and all of the activity that goes on before the prayer?” Reinhardt asked.
Tyler said it’s tradition to have the invocations before the public portion of the meetings. Circuit Judge Kim McLane Wardlaw asked for evidence.
“What evidence, what record of evidence do you have that invocations at school board meetings are embedded in the history, tradition of our country?”
Tyler pointed to the school board’s policy, and a brief that cited the professional prayer caucus.
David Kaloyanides, representing the Freedom from Religion Foundation, said the school district makes “the incorrect assumption that a school board is a legislative body. It is not a legislative body. Categorically they’re different in purpose, different in function and in structure,” he said.
Furthermore, he said, the school board is not a legislative body under exemptions carved out in Galloway or Marsh v. Chambers, both cases involving legislative sessions and invocations.
Legislative bodies impact a broad spectrum of the population, while a school board is formed solely for the education of children, Kaloyanides said.
“They are not answerable to the children. Those children do not elect them. The children have no voice,” he added. “The school board also acts a law enforcement body and it determines how the policies and rules are violated.”
Reinhardt wondered if Kaloyanides’ position can be applied across the Ninth Circuit, and not just in California where the school district is.
“We cover nine states, it’s not just what you can do it California. If we were say that a school board is different from Congress, from a legislative body, it wouldn’t matter what California laws are particularly,” Reinhardt said.
“That is correct your honor, that is exactly what we’re asking,” said Kaloyanides. “This is not a legislative body that fits the Marsh, Town of Greece narrow exception.”
On rebuttal, Tyler called that position extreme.
“It is such that no invocations would be permitted in any school districts,” he said.
The panel took the issue under advisement and did not indicate how or when it would rule.
Senior U.S. District Judge Wiley Young Daniel, sitting by designation from the District of Colorado, rounded out the panel.