Public School Systems and Religion: Where do things stand after Greece v. Galloway? NC Association of Community College Trustees Leadership Conference September 4th, 2014 David E. Inabinett Brinkley Walser, PLLC PO Box 1657, Lexington, NC 27293 [email protected] Research and Materials • I would like to specifically thank Fredrick Johnson of Faw, Folder & Johnson, P.C. and Carolyn Waller of Tharrigton Smith, L.L.P. for research and materials they provided. The Establishment Clause “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” U.S. Constitution, Amendment I What does The Establishment Clause mean? When does government activity breach the wall of separation between Church and State? ENGEL v. VITALE 370 U.S. 421 (1962) • Court overturns New York State requirement for daily classroom invocation “Almighty God we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” • “It is no part of the business of government to impose official prayers for any group of the American people to recite as a part of a religious program carried on by government.” LEMON v. KURTZMAN 403 U.S. 602 (1971) • Court held unconstitutional Rhode Island and Pennsylvania statutes providing state aid to churchrelated elementary and secondary schools. • Formulated “three-prong test” – “First, the statute must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion; Finally, the statute must not foster ‘an excessive government entanglement with religion.’ “ LEE v. WEISMAN 505 U.S. 577 (1992) • Whether the school district’s practice of inviting clergy to give a non-sectarian invocation and benediction at graduation violates the Establishment Clause. • Establishes coercement “coercment test” – “At a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a State religion or a religious faith or intends to do so.” “The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or , at least, maintain respectful silence during the invocation and benediction.” • “Our decisions in Engel v. Vitale, 370 U.S. 421 (1962), and Abington School District, supra, recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there.” • “We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position.” TANFORD v. BRAND 104 F.3d 982 (7th Cir. 1997) • Challenge to non-sectarian invocation and benediction at Indiana University graduation. • Since 1840, Indiana University has included an invocation and a benediction at its commencement ceremony. • Clergy invited to deliver non-sectarian invocation and benediction. • All graduating students are invited to attend, but attendance is voluntary and no penalty is imposed for non attendance. • Unlike Lee v. Weitzman, no cohersion to participate. • College students are less impressionable than younger students and should be able to appreciate the University’s policy is neutrality of religion. • Invocation and benediction serve legitimate secular purposes of solemnizing public occasions rather than approving particular religious beliefs. • • • • • JOYNER v. FORSYTH COUNTY 653 F. 3d 341 (4th Cir. 2011) cert. denied 132 S. Ct. 1097 (2012) Prohibits sectarian prayers at meetings of the Forsyth County Board of Commissioners. Policy invited all religious leaders in the community to offer a prayer and limited the frequency of participation in order to insure a diverse representation of religious groups. Policy stated that prayers were not intended to affiliate with or express a preference for any religion. 80% of prayers included Christian references. “Citizens should come to public meetings confident in the assurance that government plays no favorites in matters of faith but welcomes the participation of all.” COLES v. CLEVELAND BOARD OF EDUCATION 171 F. 3d 369 (6th Cir. 1999) • Legislative prayer does not apply to Boards of Education. • Students are directly and actively involved in School Board meetings in a way they are not involved in the legislative sessions of other public bodies. DOE V. INDIAN RIVER SCHOOL DISTRICT 653 F. 3d 256 (3rd Cir. 2011) cert. denied 132 S. Ct. 1097 (2012) • Court holds School Board prayer to violate Establishment Clause. • Prayer policy disclaimed any particular religious affiliation of the Board and specified that the prayer was intended for Board members only. • Court holds that school prayer cases, not legislative prayer cases, control. • Significant number of students attend Board meeting. • Board of Education setting similar to a graduation or football game. Greece v. Galloway Background • From 1999-2007, every monthly town meeting opened with prayer from a local clergyman • No one was excluded or denied the opportunity to offer prayer, but it was not specifically publicized that individuals were welcome to deliver prayer • All participating ministers for 8 years were Christian • There existed a preference for ministers residing in the town of Greece Background, cont. • The town did not review prayers for content but some prayers did have a sectarian message or reference specific ideologies or holidays. • Susan Galloway and Linda Stephens complained that prayers insulted the “diverse community”. The Decision • In a 5-4 split decision the majority opinion was authored by J. Kennedy, joined in full by Roberts and Alito, and in part by Thomas and Scalia • Concurrence by Alito, joined by Scalia • Concurrence by Thomas, joined by Scalia as to Part II-B • Dissent by Breyer • Dissent By Kagen, joined by Ginsburg, Breyer and Sotomayor A New Era?: Town of Greece, New York v. Susan Galloway • The Coercion test wins out! • Courts should not seek to review prayer for content • Legislative prayer does not have to be exclusively nonsectarian and the Court does not imply that no constraints remain on its content • The principle audience must be lawmakers and not the public and it should occur during the ceremonial part of the meeting to solemnize the occasion • The ruling was applied to the “ limited context” of legislative prayers Following Greece v. Galloway standards • The process for selecting who may lead prayer should be nondiscriminatory but does not require searching beyond its borders to achieve religious balancing. • Board should not attempt to control or edit content of any prayers • The pattern of prayer should not over time proselytize on behalf of one faith Where are local school boards left? • Still some debate if the “Marsh” standards apply some courts tend to consider school boards a legislative body within the context while others would say the presence of meeting taking place on school property, students in attendance and open to public discussion on school related matters make it less like a legislative body under “Marsh”. • How does this impact community college trustees and college events? Prayer in Public Schools and Community Colleges • It is still the General Rule, unchanged by the recent Greece decision, that the use of prayer or ceremonial bible reading in public schools or at school-sponsored events is generally unconstitutional. • Moments of silence have consistently been upheld as a way to solemnize an occasion without violating the Establishment Clause. Going Forward: Advice for Community College Trustees • If your district desires to have prayer at the start of meeting its purpose should be to solemnize the occasion and should be directed at board members, not the public. • It should be during the ceremonial portion of the meeting and not when business is conducted. • Prayer should not force participation or appear coercive (i.e. No asking to bow heads or stand).