School prayer

Debating constitutionality of prayers before school board meetings

2012-07-31T23:42:00Z 2012-08-01T14:27:01Z Debating constitutionality of prayers before school board meetingsJoseph Cress, The Sentinel The Sentinel
July 31, 2012 11:42 pm  • 

The long-standing practice of the Big Spring School Board beginning public meetings with a prayer is unconstitutional, according to federal case law and the opinions of two law professors.

“This is a good case for the Pennsylvania ACLU,” said Alan Garfield, a professor with the Widener University School of Law. “It seems highly problematic to me.”

An expert on the Constitution, Garfield explained how case law is clear that government endorsement of prayer in a public school setting violates the Establishment Clause, even when that setting is a school board meeting.

“It raises the problem that not every kid in the school district is a Christian,” Garfield said. “Children are young. Impressionable. Teachers and other school leaders are authority figures they look up to. Kids are subjected to peer pressure. They are going to feel coerced to pray and to participate in a religion.”

Big Spring School District appears to be the only district in Cumberland and Perry counties that holds a vocalized prayer led by a school board member at the beginning of its public meeting. A survey of district websites and online agendas shows that Shippensburg school district includes a silent prayer led by board president Herbert Cassidy while Mechanicsburg area and Susquenita school districts include time set aside for “silent meditation” or a “moment of silence.”

The survey also revealed that the school districts of Carlisle, South Middleton, Cumberland Valley, Camp Hill, East Pennsboro, West Shore, West Perry, Newport, Fannett-Metal and Greenwood do not include board-led prayer in any form at their meetings.

Despite the fact that most school boards do not include a prayer, the Big Spring School Board is defiant of the case law, saying they have no plans to change the board practice of offering a prayer before a public meeting – the next of which is scheduled for Monday, Aug. 6. School board member Kingsley Blasco asked the newspaper why it wants to “take something and try to mess it up?”

“I’ve been on the board at least 12 years,” Blasco said. “Nobody has complained. No one has given an indication that it is a problem. We sort of figured with the current issue [the GSA club], that it was bound to happen. Wherever it goes, we shall see it.

“We like to have the prayer before the meeting,” Blasco added. “I do believe in Jesus Christ as my savior. For me, when I pray, I am calling on the God that I serve to ask for His guidance and wisdom in decisions we are going to make.”

Big Spring School Board President Wilbur Wolf Jr. also said that no one has ever complained or challenged the practice either at a public meeting or before a court of law.

“School board members feel it is appropriate as it was in times past throughout the country,” Wolf said. “We are traditionalists in that sense. We have never asked our attorney for an opinion.”

Case law

Though some members of the school board have vowed to keep prayer at the meeting, case law determined that the presence of students at board meetings makes the practice of prayer by school directors unconstitutional. Several students attended a July 23 public meeting, during which the Big Spring School Board received public comment on the issue of whether or not to allow a Gay-Straight Alliance Club to form at the high school.

The agenda for that meeting included a prayer led by a board member after the Pledge of Allegiance, but before other business items. Past meetings have included a prayer led by a board member.

Several Newville area Christians attended this meeting to voice their opposition to the GSA club. Resident Shana Barr made a reference to the school board prayer in her comments by asking school directors how they can seek guidance from God while considering approval of a club whose members, in her opinion, violate God’s law.

However, a vocalized prayer before a school board meeting is inconsistent with an opinion handed down in August 2011 in the Third Circuit Court of Appeals, which has jurisdiction over Pennsylvania. That is the conclusion of not just Garfield, but also of Thomas Place, a Penn State Dickinson School of Law professor and a specialist in both Constitutional and free speech law.

“It would appear this practice is inconsistent with a recent court opinion,” Place said.

In Jane Doe vs. Indian River School District, the Third Circuit concluded that the presence of students at public meetings in a school setting makes the practice of a spoken prayer by a school board member unconstitutional, Place said. That case originated out of southern Delaware and involved the parents of an elementary school student suing the school district.

In that case, the parents argued the practice violates the Establishment Clause of the First Amendment. The board claimed that, being a legislative body, the practice of opening board sessions with a prayer is akin to the practice upheld in Marsh vs. Chambers.

In Marsh, the U.S. Supreme Court held that Nebraska’s practice of opening legislative sessions with a prayer was not a violation of the Establishment Clause. The issue was whether a school board may claim the same exception or whether the Jane Doe case should be decided under traditional Establishment Clause principles governing prayer in public schools.

Ruling is the law

“In a nutshell, the Constitution just says, ‘Congress shall make no law respecting the establishment of religion,’” Garfield said. “It does not say specifically there needs to be a wall separating church and state, but the Establishment Clause has been interpreted by the court to mean the government should not do things that endorse religion over non-religion or one religion over another.”

Even though the Constitution only mentions Congress by name, case law extended the prohibition to all levels of government, including school boards, Garfield said. He added, in Marsh and similar cases, the Supreme Court found that certain long-standing practices to observe an event, legislative process or symbol do not violate the Establishment Clause.

“‘One nation under God’ in the Pledge is fine,” Garfield said. “‘In God We Trust’ on money would pass muster.”

However, Place said, the Third Circuit in the Jane Doe case found that the issue of prayer by school board members at public meetings fits more comfortably with the line of cases argued before the Supreme Court that struck down prayer in public school.

“The school setting distinguishes it from a purely legislative kind of session,” Place said. From what Place understands, the Supreme Court is not going to review the Indian River case. That means that the ruling in the case is the law of the Third Circuit.

Place explained that the Supreme Court is more likely to review the Indian River case if the Third Circuit decision conflicts with the outcome of similar cases argued in other jurisdictions of federal circuit courts.

There is, however, an effort underway in Congress to draft a federal statute to permit prayer in school, Place added. “The fact that some are interested in introducing legislation doesn’t mean it is constitutional. It is the Supreme Court that ultimately decides whether a piece of legislation is consistent or not with the Constitution.”

History of prayer

Big Spring School Board keeps York attorney Philip Spare on retainer to offer legal advice when the situation demands it. Wolf said Spare does not routinely attend Big Spring School Board meetings because they conflict with meetings held the same night at South Middleton School District, where he is also a solicitor.

Spare confirmed Monday that he was never asked about this topic by the Big Spring School Board. “I am sure there are a lot of different opinions,” Spare said. “I am not going to give legal advice through the newspaper. I am going to give it to my client. I have no other comment.”

Wolf believes the practice of the board offering a prayer may go back 25 to 30 years. He could not remember what was done when he was on the board the first time from 1981 to 1989, but from 1997 to present, prayer has been a regular part of the board agenda.

A check of the district website conducted Monday found references to the word “prayer” on board agendas going back to at least the 2009-2010 school year. Those same agendas list student recognition and reports as student representatives as regular components of a board agenda proving that students were at least invited to attend board meetings.

“There is no formal board policy,” Wolf said. “There are several board members who volunteer and it is rotated among them. We are just going to continue with the past practice. We are going to keep on doing what we are doing.”

Wolf added the prayers being offered do not promote any particular religion.

Defying the spirit

Garfield said that doesn’t matter, explaining that the case law is clear that government must stay out of religion in order to conform to the spirit of the Constitution.

Garfield explained how the Constitution recognizes that American culture consists of a multitude of races, creeds and ethnic groups that have the right to coexist comfortably in the same public space and not feel as though they are outsiders.

“An important part of the Constitution and the Supreme Court is to protect minorities and dissenting views from the tyranny of the majority,” Garfield said. “Those who want school prayer may think if you do not allow prayer, the atheists and secularists have won ... that it is not fair. Instead, it is just the notion that in this kind of public setting, government should stay out of religion.”

He added religious groups need to recognize the same rules that protect students from school prayer also protect churches from the government intervening in the internal affairs of the faith community.

During the July 23 meeting, Pastor Kevin Dunlap of the Plainfield Church of God asked Wolf for permission to say a prayer aloud at the podium during the public comment period. Wolf gave permission, prompting Dunlap to ask God to be with board members when they make their decision about the GSA club.

Place said, in that instance, the pastor’s prayer was Constitutional.

“That is different from the board beginning a meeting,” he said. “It was a public comment period. People should be permitted to say what they want.”

Silence is golden

Garfield added case law only prohibits organized prayer if the prayer is led by students, teachers, staff or school board members at a public event or venue such as a homeroom, a graduation ceremony or a school.

Individual students have the right to pray to themselves before eating lunch or taking a test, for example, Garfield said. He added the right of a teacher to pray to himself or herself in the classroom depends on the circumstances and facts of the case. This is because the teacher is an authority figure whose actions have an influence on children.

Garfield questioned whether it is better for Big Spring School Board to use its time, energy and money to defend their choice of having prayer at public meetings or to build a better academic program.

Garfield explained how a stronger case can be made for allowing school boards to include a moment of silence in their agendas than a vocalized prayer made before an audience of taxpayers, residents and students who may or may not be religious.

“It helps to moderate the concerns about government endorsing religion,” Garfield said. “A moment of silence does not endorse anything. Those in attendance can do whatever they want.”

Copyright 2015 The Sentinel. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(22) Comments

  1. Tom83
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    Tom83 - August 06, 2012 11:47 pm
    Remember your faith? How about remembering that YOUR faith is not EVERYONE'S faith. The public school system is not a place for pushing your beliefs on others, that is my the law seperates church and state.
    While you believe that sticking to your guns shows courage and commitment it is actually a demonstration in small mindedness. It does nothing except teach our kids that different is wrong.
  2. phil mckrakin
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    phil mckrakin - August 02, 2012 11:55 am
    can anyone remind me why public school is so great? all i hear about them learning is tolerance, mediocrity, and the removal of the most important person a kid can learn.
  3. vinoman1953
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    vinoman1953 - August 02, 2012 10:35 am
    These guys should know by now, if they'd just get a gay preacher to do the prayer, they'd be good to go.
  4. linkay
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    linkay - August 01, 2012 6:17 pm
    Secular Humanism is being pushed in our society and schools. That is against the Constitution. I do commend the Big Spring board members though because they have been pushed and pushed. Everyone needs to see the statues - National Momument to our Forefathers- at Plymouth Rock. The Statue that has the heroic figure of Faith pointing to heaven. There is statue of Liberty, Peace, Justice and Mercy and more. We are a nation that started with faith. It is on our statues.
  5. linkay
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    linkay - August 01, 2012 5:50 pm
    Progressives over the last few years have lyed and have pushed the church and state thing and Christians remained silent and let it happen. I don't care what the opions of two liberal law professors are. Where is the proof. See over the last few years a professor says something and we are just to believe it without proof because of who they are. Books were written by atheists also and the books never had footnotes in them but because of who they were, people just took their word on it.
  6. linkay
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    linkay - August 01, 2012 5:46 pm
    The seperation of church and state was in a letter by Jefferson. The first amendment of the Constitution says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Government is not to tell us we can only practice a religion they choose. God and prayer were always to be in school.
  7. eels2010
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    eels2010 - August 01, 2012 5:04 pm
    The difference between the GSA and the opening prayer? The kids in the GSA club are confined to their own little room, minding their own business. They aren't flaunting their values in your face. The prayer is at a public meeting, and frankly has nothing to do with the business of the school. Have a moment of silence. It keeps people off your back and you get to do whatever you want during that time. Face it, not everyone believes the same thing. Include all, or include none.
  8. Zippy D Dudah
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    Zippy D Dudah - August 01, 2012 3:54 pm
    Invalid argument. A school board is a government entity; a church is not. The compromise should be that the students should be allowed to form a club that warns other students about the decaying effect that pop culture (including promotion of the gay agenda) has on our nation.
  9. Zippy D Dudah
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    Zippy D Dudah - August 01, 2012 3:51 pm
    Secular Humanism is the only religion promoted by our courts and "esteemed" (P)resident. That's why the gay agenda can be forced upon our children, while (gasp) God gets swept under the rug.
  10. Zippy D Dudah
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    Zippy D Dudah - August 01, 2012 1:39 pm
    Secular Humanism is the only religion promoted by our courts and "esteemed" (P)resident. That's why the gay agenda can be forced upon our children, while (gasp) God gets swept under the rug.
  11. Zippy D Dudah
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    Zippy D Dudah - August 01, 2012 1:34 pm
    Zeldana - That was one of the solutions I thought they could do...a standing prayer from a person who isn't prohibited from speaking. The other was to give students an opportunity to step outside for the prayer, or just keep them out until after the Pledge/prayer.

    Never mind what Artninja wrote. He/she/it is just spouting nonsense.
  12. cmblinkposter
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    cmblinkposter - August 01, 2012 1:03 pm
    Do these people not have churches? Private homes? Street corners? Why do they need a public meeting using public resources in a public place to practice their private religion?

    Perhaps as a compromise the public should be allowed to freely enter churches and say whatever they want before services? Atheists could just enter and speak without being told to leave?

    But somehow, I'm sure, the same people so vehemently asking for virtually the same preferential treatment feel that wouldn't be fair.
  13. bjdc
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    bjdc - August 01, 2012 12:25 pm
    BS School Board, watch out. You need to make sure what you are told you can and can not do is legal truth. Contact - Rutherford Institute/John Rutherford. He has rescued many that were made to believe they can't legally do certain things, only to find out later that the people oppressing them had no legality to their statements- credentials or not. Don't let it happen to you. KNOW YOUR RIGHTS. Rutherford knows his stuff because he deals in these situations on a regular basis.
  14. bjdc
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    bjdc - August 01, 2012 12:17 pm
    Our country needs to turn back to God. We have had a period of time where we tried to push Him out and go it alone. We can see the devastation is has caused for now and in future generations. My heart hurts for souls that are being lost to a humanistic ideology that is carrying them down the wrong road.For that we should all be concerned. BS School Board needs to be commended. Contact Rutherford Institute/John Rutherford for legal rights assistance- financial help if needed.
  15. Zeldana
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    Zeldana - August 01, 2012 11:27 am
    Thank you for changing the former and misdleading headline---btw-maybe Harrisburg HS should add prayer to their SB meetings...just say'in. Dear Jesus, help up to love one another, accept that we are not the same and leave the conviction, correction, judgement up to you. What you accomplished on the cross was big enough for everyone and everything when we give you our heart. Amen.
  16. Artninja
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    Artninja - August 01, 2012 11:18 am
    Be careful what you wish for. All those kids wanted was a place to belong. Its a horrible feeling to wake up every morning and go to school knowing you'll be out of place. The GSA would give these kids a respit from not having somewhere to belong. Because of your bigotry, you now are going to lose your prayer. Good job. "Judge not, and you will not be judged; condemn not, and you will not be condemned; forgive, and you will be forgiven." Luke 6:37
  17. lisa0828
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    lisa0828 - August 01, 2012 11:11 am
    Hold to your beliefs !!!!! I applaud the Big Spring School board....Pray only makes things BETTER.....DON'T STOP WITH THE PLEDGE OF ALLEGIANCE, THE NATIONAL ANTHEM OR PRAY.....WE ALL NEED HELP AT TIMES ....AND GOD LISTENS.......
  18. phil mckrakin
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    phil mckrakin - August 01, 2012 9:27 am
    Like saying the Pledge of Allegiance or the National Anthem before an event, you can choose to not participate. Amish dont go berzerk at the county fair's when we do the pledge or anthem. Being in the same room and hearing it isnt the same thing as it being rammed down your throat. But then again, this is similar to the GSA club. Citizens against it are told to just turn the other cheek and let the club go forth. Maybe if you oppose prayer before a MEETING you need to suck it up too.
  19. Sue
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    Sue - August 01, 2012 8:57 am
    I applaud the Big Spring School Board for having a prayer before their meetings. Prayer has been dismissed from too many agendas and where has it gotten us? Protecting kids from school prayer?
    Protecting them from what? A relationship with God? I think Mr. Place and Mr. Garfield should do a little praying of their own!
  20. Zeldana
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    Zeldana - August 01, 2012 8:42 am
  21. Zeldana
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    Zeldana - August 01, 2012 8:34 am
    Mr. Garfield, what about the FREE EXERCISE CLAUSE which states..Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof... Would Mr. Garfield be satisfied if a Muslim attended the next SB meeting and offered a prayer...then the SB would not be endorsing one religion over another ? Maybe SB members can stand together off school property as individuals and pray together? In God We Him alone, man is too stupid to manage on his own!
  22. Zeldana
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    Zeldana - August 01, 2012 8:22 am
    Will a local pastor come forward to offer up and maintain the continuation of prayer on behalf of the Big Spring SD? Move the Public Comment Period to the beginning of the meeting-problem solved. Isn't it ironic that the GSA is being thrust upon the school, even while others oppose based on their religious conviction as a matter of legal of precedence, yet Board members are now prohibited from the freedom to express their religious views because it might offend the irreligious/ law? SMDH!
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