AUSTIN — School prayer has long been a hot topic, but the U.S. Supreme Court on Tuesday considered hearing a Texas case on a sensitive related subject: student-led prayers at school board meetings.
The case comes from Birdville ISD in the Fort Worth suburb of Haltom City, where pupils have for two decades delivered invocations at board meetings.
“Whether prayers delivered at school board meetings unconstitutionally coerce young students into participating in religious exercises” is the key issue, said Monica L. Miller, senior counsel for the American Humanist Association, which filed the case on behalf of a former Birdville student. “It’s very problematic.”
Texas’ attorney general, along with AGs from more than a dozen other states, last year filed a brief supporting the school board members; because federal appeals courts are divided on the issue — and because the high court has not previously ruled on this issue — Miller said the time could be ripe for a ruling.
If the court takes up the case, a ruling could turn on whether the justices conclude that the facts put it in line with decisions that allow prayer in settings such as legislative bodies, or under rulings that hold prayer at public school-related events unconstitutional.
According to the lawsuit, the Birdville board has had a longstanding policy of choosing students to offer Christian prayers at the beginning of public school board meetings.
“School-sponsored Christian prayers at board meetings are discriminatory,” Miller said in a statement. “This practice is particularly egregious because it invites young, impressionable students to deliver the prayers.”
A federal district court ruled against the challengers, reasoning that the case fit under rulings allowing for legislative prayers.
On appeal, the AHA argued that pupils at board meetings, including those who are not in attendance to give a prayer — typically elementary and middle-school age — are in a school setting.
Texas’ attorney general, Ken Paxton, argues that students are entitled to speak freely.
“The student expressions permitted by the Birdville ISD policy are the private speech of the students and thus are permissible under the First Amendment,” Paxton said in a statement released when the case reached the 5th U.S. Circuit Court of Appeals. “Students should be taught that they are free to express their deeply held religious beliefs to their elected representatives in public forums without any restriction from the government.”
A federal appeals court decided in favor of the board, but University of Texas School of Law constitutional expert Lawrence Sager said its holding is at odds with other appeals-court decisions.
Since the mid-1960s the Supreme Court has been “very firmly and very durably committed” to keeping school-sponsored prayer exercises out of the public schools, Sager said.
“That’s just an unbroken line of cases,” that goes “very deep and very wide,” Sager said. “The court has been extremely firm about this.”
Holding that a rabbi’s non-denominational prayer at a school commencement was unconstitutional, Justice Anthony Kennedy in 1992 wrote that “the principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause.”
On the other hand, a 5-4 Supreme Court decision in 2014 ruled that opening a monthly municipal board meeting with prayer was constitutional, even if it favored a particular faith.
Kennedy also wrote the majority opinion in that case.
Only four votes are needed to bring a case to the court.
Kennedy, who has straddled both sides of the divide in prayer cases, could well be a swing vote should the justices agree to hear the Birdville dispute.
Sager said that for Kennedy, the nature of the audience is important, as is the difference in history.
There’s a long tradition of ceremonial prayer at legislative events but there was no such a history of school prayer when the Constitution was written, Sager said.
Douglas Laycock, a University of Virginia School of Law constitutional law expert, agreed that if the justices decide to hear the Birdville case, Kennedy’s vote will be key.
“My guess is, he’s going to say school boards are mostly adults,” Laycock said. “We’ll see.”
John Austin covers the Texas Statehouse for CNHI LLC’s newspapers and websites. Reach him at firstname.lastname@example.org.