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They didn’t have a prayer. Is Clovis Unified trying to stay out of legal trouble?

Clovis Unified headquarters. Bee file photo.
Clovis Unified headquarters. Bee file photo. Fresno Bee file

Clovis Unified’s school board meeting Wednesday did not commence as usual, with a prayer directly following the pledge of allegiance.

Instead, after the pledge, board president Brian Heryford shared what he called an inspirational story about veterans, as Wednesday marked the district’s first-ever signing day for military recruits.

It was a departure from CUSD’s longtime tradition of praying before the start of a school board meeting, a practice that was recently deemed unconstitutional in a 9th Circuit Court case involving Chino Valley Unified.

Clovis Unified school board members said they weren’t sure whether the change will be permanent, and spokeswoman Kelly Avants said it was a spur-of-the-moment substitution on Wednesday night. However, Avants also said that the district had received a letter from the Freedom from Religion Foundation, the party that took Chino Valley to court, and is now in the process of reviewing how the ruling may affect its practices.

The Chino Valley Unified case found that prayer at school board meetings was a violation of the Establishment Clause, a decision that was upheld by the 9th Circuit Court and will stand after the district declined to appeal to the U.S. Supreme Court earlier this year.

Clovis Unified board member Steven Fogg, who typically leads the invocation, said it’s been a tradition at the meetings since they began.

“Nowadays people are trying to take God out of everything, and in some cases they’ve already succeeded,” Fogg said. “But ultimately we have to follow the law.”

Court case summary

The central question of the 2014 lawsuit against Chino Valley and its board members was whether a school board meeting was more like a school setting or a governing body, where ceremonial prayer is sometimes accepted. In addition to the opening prayer, the Freedom From Religion Foundation said that district board members regularly used the forum to proselytize, reading from the Bible and imploring others to seek out Christianity.

A district court ruled against Chino Valley, which changed its policies on reading the Bible at board meetings, but then appealed to the 9th Circuit Court to keep its opening prayer. The higher court upheld the district court’s ruling, stating that prayer prior to a school board meeting was not within the tradition of prayer at open legislative sessions, in part because the former involved minors.

“The panel noted that this was not the sort of solemnizing and unifying prayer, directed at lawmakers themselves and conducted before an audience of mature adults free from coercive pressures to participate, that the legislative-prayer tradition contemplates,” the ruling stated. “Instead, these prayers typically took place before groups of schoolchildren whose attendance was not truly voluntary and whose relationship to school district officials, including the Board, was not one of full parity.”

Chino Valley also asked the court to overturn the injunction on prayer based on the infringement of individual board members’ right to freedom of speech. However, the higher court disagreed.

“The only speech that it requires the Board members to refrain from engaging in or permitting others to engage in is speech that would cause the district to violate the Establishment Clause,” the 2018 ruling stated. “Under state law, the Board has “control” of the school district. Consequently, the Board members are appropriate actors to enjoin in order to bar school-sponsored prayer — including at the Board meeting.”

Chino Valley decided earlier this year not to take the case to the Supreme Court, with one member citing the time and resources already spent to reach a conclusion. The Orange County Board of Education then attempted to intervene in the case and take it forward by asking the 9th Circuit Court to consider OCBE a party of interest. The court declined.

Desiree Ferraro of Tyler and Bursch, the firm that represented Chino Valley and the Orange County Board of Education, said she expects nothing further to happen in this case.

“But we haven’t given up hope,” Ferraro said.

However, Ferraro said she anticipates that school boards that pray will begin to receive cease-and-desist letters from the Foundation for Freedom From Religion. Ferraro said Tyler and Bursch would offer pro-bono legal help to other school districts wishing to pursue similar cases.

What does it mean for CUSD?

At past CUSD board meetings, attendees have been asked to remain standing after the pledge of allegiance for an invocation that begins with “Our Father” and typically involves expressing gratitude or asking for guidance on items related to the meeting’s agenda.

Avants said the district is reviewing how the ruling in the Chino Valley case may pertain to Clovis Unified. Whether CUSD’s situation is different than Chino Valley’s in terms of the scope or nature of the prayer is one aspect that’s up for discussion, according to Avants.

She said CUSD received a letter from the Freedom from Religion Foundation in March, and responded that the district is looking over its practices.

Ultimately an official policy change would be up to the board, Avants said, but no decision has yet been made. If something is decided, it could be as soon as this summer, according to Avants.

Freedom from Religion Foundation attorney Elizabeth Cavell said the practices at Chino Valley were particularly egregious, and that each case is decided on its own individual facts. However, Cavell said circuit courts in other parts of the country have upheld similar judgments, with only the 5th Circuit Court issuing a different ruling.

“School boards in the 9th Circuit need to take their guidance from the 9th Circuit Court,” Cavell said. “That ruling is not so narrow as to say ‘as long as you’re not doing this, you’re okay.’”

Cavell said schools and school boards are subject to different considerations than legislative bodies for a number of reasons: first, because public school attendance is compulsory. Even board meetings often have students attending for disciplinary or honorary reasons, and students sometimes sit on the boards themselves, Cavell said.

But prayer at school board meetings also does not have a historical tradition like prayer in legislative bodies does, Cavell said, which is one factor that has protected the latter from Establishment Clause review.

“Public schools are different, and religion being promoted by the public school system should be subject to a heightened review,” Cavell said. “The school board exists to set policies for the district. Not all students and parents in the district share that religion, and it makes sense that they would want those meetings to be secular.”

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