School Board Prayer: Reconciling the Legislative Prayer Exception and School Prayer Jurisprudence
Akron Law Review
Volume 54
Issue 1
Article 3
School Board Prayer: Reconciling the Legislative Prayer Exception
and School Prayer Jurisprudence
Evan Lee
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Lee, Evan () "School Board Prayer: Reconciling the Legislative Prayer Exception and School Prayer
Jurisprudence," Akron Law Review: Vol. 54 : Iss. 1 , Article 3.
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Lee: School Board Prayer
SCHOOL BOARD PRAYER: RECONCILING THE
LEGISLATIVE PRAYER EXCEPTION AND SCHOOL
PRAYER JURISPRUDENCE
Evan Lee ∗ ⃰
I.
II.
III.
Introduction ................................................................. 77
Background .................................................................. 80
A. The Legislative Prayer Exception ......................... 80
1. Marsh v. Chambers.......................................... 81
2. Town of Greece v. Galloway ........................... 81
B. Prayer in Public Schools ....................................... 82
1. Engel v. Vitale.................................................. 83
2. School District of Abington Township. v.
Schempp ........................................................... 83
3. Wallace v. Jaffree ............................................ 83
4. Lee v. Weisman ................................................ 84
5. Santa Fe Independent School District v. Doe.. 85
School Board Prayer Cases.......................................... 86
A. Before Town of Greece, the Third, Sixth, and Ninth
Circuits held that the legislative prayer exception
does not apply to school board prayers. ................ 86
1. Coles ex rel. Coles v. Cleveland Board of
Education (Sixth Circuit)................................. 86
2. Bacus v. Palo Verde Unified School District
Board of Education (Ninth Circuit) ................. 88
3. Doe v. Indian River School District (Third
Circuit) ............................................................. 89
B. After Town of Greece, a circuit split emerged
between the Fifth and Ninth Circuits regarding
school board prayer. .............................................. 92
∗
J.D. Candidate at the University of Akron School of Law, 2021. I would like to thank Randolph
Baxter Professor of Law Martin H. Belsky for generously offering his expertise and thoughtful
feedback throughout the writing of this article. I would also like to express my gratitude to the
members of the Akron Law Review for their diligent work in the editing of this article.
75
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Akron Law Review, Vol. 54 [], Iss. 1, Art. 3
76
IV.
V.
AKRON LAW REVIEW
[54:75
1. American Humanist Association v. McCarty
(Fifth Circuit) ................................................... 92
2. Freedom From Religion Foundation, Inc. v.
Chino Valley Unified School District Board of
Education (Ninth Circuit) ................................ 94
Analysis ....................................................................... 97
A. The legislative prayer exception is applicable to
school board meetings that are similar to legislative
sessions or meetings of other public deliberative
bodies. ................................................................... 98
1. There is a longstanding history and tradition of
prayers at school board meetings..................... 98
2. The legislative prayer exception should be
applied to prayers at school board meetings as
long as such prayer practices are consistent with
the Marsh-Greece framework. ........................ 99
a. Lawmakers are the principal audience of
legislative prayers. ..................................... 99
b. Lawmakers are prohibited from composing
legislative prayers. ................................... 100
c. The purpose of legislative prayers is to unite
lawmakers, not advance or disparage
religion. .................................................... 100
B. To avoid the coercion of students, if school board
prayer is to be allowed, certain guidelines are
essential. .............................................................. 102
1. School boards should invite a variety of
religious leaders to deliver prayers. ............... 103
2. The setting of school board meetings must not
be similar to a classroom or school-sponsored
event............................................................... 105
3. Students should not actively participate in
school board meetings. .................................. 106
C. Student-delivered prayers or statements at school
board meetings are constitutionally protected private
speech if the school board does not interfere with the
student’s message................................................ 108
Conclusion ................................................................. 110
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Lee: School Board Prayer
2020]
SCHOOL BOARD PRAYER
77
I. INTRODUCTION
Throughout the United States, many public school boards regularly
open meetings with a prayer. 1 As a result of these opening invocations,
citizens, students, teachers, and board members have questioned whether
these prayer practices violate the Establishment Clause of the First
Amendment, especially in light of the public school context these prayers
are given in. 2 Because the Supreme Court has not yet heard a case
involving prayers at school board meetings, a circuit split has emerged.
The Third, Sixth, and Ninth Circuits each hold that the legislative prayer
exception, established by the Supreme Court in Marsh v. Chambers
(1983), does not apply to opening prayers at school board meetings.
Therefore, applying the Supreme Court’s reasoning in cases involving
school prayer to find such prayers unconstitutional. 3 The Fifth Circuit,
however, has applied the legislative prayer exception to uphold school
board prayers. 4
If the Supreme Court decides to extend the legislative prayer
exception to school board meetings, it should establish clear guidelines
that focus on context-specific factors. The Court should limit the
exception’s applicability to board meetings that more closely resemble a
public deliberative body, like a town board, instead of a classroom or
school-sponsored event. School board meetings that are primarily focused
on administrative or policy-making matters and where the audience is
mostly composed of mature adults are si (...truncated)
