Prayer at School Board Meetings

Re: Prayer at School Board Meetings? Not so fast.

Dear Superintendent:

I have received several calls about a recent case from a federal district court in Louisiana. More specifically, the question involves whether prayer is now legal at Board meetings. For the reasons described below, I do not recommend Texas School Districts rely on this opinion at this time. A copy of the decision is available on our website at www.dubnerlaw.com.

The First Amendment prohibits the federal government from making laws “respecting an establishment of religion.” This is also known as the “Establishment Clause.” The Fourteenth Amendment expands this restriction to state governments. This case involves prayer at Board meetings, which invokes the “Establishment Clause,” since the government is argued to be sponsoring a religion. Over time, the United States Supreme Court has created exceptions to the Establishment Clause. One exception is the “Legislative Exception.” The district court in Louisiana held that the United States Supreme Court exception for legislative prayer applied to the Tangipahoa Parish School District. Nevertheless, the Court stated that the Louisiana school district could still have problems because the prayers cannot be used to advance one religion — here, Christianity — over other religions. Although vacated on other grounds, the Fifth Circuit previously ruled that certain types of prayers were not allowed at school board meetings. See Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188 (5th Cir. 2006). Even though this case was vacated in 2007, this 2006 case gives us some guidance as to how the Court of Appeals might rule in the future.

So does this mean we can now legally pray at school board meeting? Not necessarily. This decision is not a final order and can be withdrawn by the court. Until the Order is final and no longer subject to appeal, I do not recommend school districts place any reliance on this case as authority to have prayer at school board meeting. Additionally, an opinion of a district court in Louisiana is not binding on a federal court in Texas, which means school districts should use caution when relying on this case even after it is final.

This Order likely will not be final until after the case goes to trial in November. Once the Order is final it can be appealed to the United States Court of Appeals for the Fifth Circuit. Based on the history of this case, I suspect it will be appealed. If decided by the Fifth Circuit, that court’s opinion would then become controlling law in Texas and the other states in the Fifth Circuit. Until such time, this case is not controlling.

If you have specific questions regarding the opinion or any other legal matter, please feel free to give us a call at 214-257-8818. As always, you may view this letter and other school district legal news on our website at www.dubnerlaw.com.