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.”
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.”