School Board prayers argued in 5th Circuit Court of Appeals

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School Board prayers argued in 5th Circuit Court of Appeals

By Debra Lenoine, The Advocate, WBRZ Television (Baton Rouge, Louisiana), February, 9, 2006

NEW ORLEANS — Prayers at school board meetings are constitutional unless they are intended to convert a person to a particular religion, attorneys for the Tangipahoa Parish School Board argued before a federal appeals court Wednesday.

Attorneys for the other side, the American Civil Liberties Union, asserted that no type of prayer is permissible to open a school board meeting because school boards should not be included in a U.S. Supreme Court ruling saying that state legislatures and other “deliberative bodies” may open their meetings with a prayer.

The arguments were presented during a hearing conducted by a three-judge panel of the 5th U.S. Circuit Court of Appeals on whether U.S. District Judge Ginger Berrigan erred when she ruled that prayers at school board meetings are unconstitutional.

Attorneys for both sides said they have no idea when the court will reach a decision.

Berrigan’s ruling is a result of a lawsuit challenging the constitutionality of the Tangipahoa School Board’s practice of opening its meetings with prayer.

The lawsuit was filed by the American Civil Liberties Union of Louisiana on behalf of an unnamed parent of children enrolled in a Tangipahoa Parish school.

The attorneys on both sides presented arguments to the 5th Circuit panel — made up of Judges Rhesa H. Barksdale, Carl E. Stewart and Edith Brown Clement — dealing with the question of whether or not the U.S. Supreme Court exception to opening prayers for legislatures, which Berrigan rejected for school boards in her decision, applies in the Tangipahoa case.

That exception depends on whether a school board is a deliberative body and whether the prayers are an attempt by the government to proselytize.

The only federal court case that concerns opening prayers at school board meetings is one originating in Cleveland.

In that case, the 6th U.S. Circuit Court of Appeals ruled on a split vote that the Cleveland board’s prayers were unconstitutional, board attorney Kirk Gasperecz said.

However, Gasperecz noted that the Cleveland School Board had a student member who was present during all the prayers, which Tangipahoa Parish does not. Although children attend the meetings of the Tangipahoa board, they do so voluntarily and usually with their parents in the audience.

As for the content of the prayers, Judge Barksdale read aloud a sentence from a prayer given during a School Board meeting thanking God for “your greatest gift of all, your son Jesus Christ.”

“Tell me how this is not proselytizing?” Barksdale asked the board’s attorneys.

Gasperecz replied that although the cited prayer could be seen as proselytizing, the prayer does not follow the legal definition of proselytizing because it does not suggest converting to a particular faith.

Barksdale also asked if there has ever been any prayer other than a Christian prayer offered at the School Board meetings.

Gasperecz told the court that the board’s records indicate that only Christian prayers have been offered. The board also has no set policy on what kind of prayer to offer and how people are chosen to pray, the attorney said.

Board members typically take turns inviting people to say the opening prayers, he said.

The judges’ questions for Wilson also were pointed.

When ACLU attorney Ronald Wilson argued that the prayers invoking “Jesus Christ” are proselytizing, Barksdale asked him if simply saying, “God bless this school board” would be unconstitutional.

Wilson thought for a moment, and then replied that he personally thinks it would be wrong, but to say “God bless this school board” would be constitutional.

All three judges asked Wilson questions about his position that the School Board should not be considered a deliberative body under the U.S. Supreme Court prayer exception.

At one point, Wilson conceded that the School Board is a deliberative body but said that court exception specifically addresses prayers that open a legislative session.

But Berrigan’s ruling relies on the long-standing history of legislatures opening their meetings with prayer, even before the U.S. Constitution was written.

School boards, on the other hand, did not exist when the Constitution was drafted, so they should not be included, Wilson said.

The Supreme Court ruling “did not create the law; it created a very limited exception,” Wilson said.

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