Emory Law Journal


Johnathan Watts


The constitutionality of public school board prayer under the First Amendment Establishment Clause has vexed lower federal courts for over two decades. With only an inconsistent string of Supreme Court cases to rely upon, lower courts have been forced to choose between competing doctrines and frameworks that embody different interests and were designed for different circumstances.

Nowhere is this struggle more aptly displayed than in the current split between the Fifth Circuit in American Humanist Association v. McCarty and the Ninth Circuit in Freedom From Religion Foundation v. Chino Valley Unified School Board. The Fifth Circuit argued that the school board prayer of the Birdville Independent School District is constitutional because it falls under the Supreme Court’s legislative prayer doctrine. Relying on the long tradition of opening American legislatures with prayer dating back to the Founding Era, the doctrine upholds such prayers in other state-based gatherings. Conversely, the Ninth Circuit struck down Chino Valley’s school board prayer, arguing that the school board is too intertwined with the school day and student life, and therefore the prayer should be analyzed under school prayer caselaw, using either the Lemon or coercion tests that struck down all such prayers at public school events.

This Comment argues that neither of these approaches is appropriate alone to address the constitutionality of school board prayers challenged under the Establishment Clause. School board meetings are similar to state legislative sessions in that they mostly involve adults who are voluntarily present and can make their own judgments about whether to attend or listen to the prayer. But public school boards are undeniably intertwined with the public school day and sometimes do involve students who are young and impressionable, along with other participants who have no real choice but to appear at the meeting, necessarily implicating coercion concerns. However, school boards are much less student-centered than other regular school activities where the risk of coercion is heightened. Adopting one of these Establishment Clause approaches for this unique and variable setting, as the Fifth and Ninth Circuits have done, leads to unsatisfactory analysis and ultimately fails to capture all the concerns inherent in this unique setting.

This Comment proposes an original balancing test—one that protects parties against religious coercion and respects traditional practices—that draws on and sequences two Supreme Court approaches to the Establishment Clause. Under this test, the coercive effect of the prayer policy should first be measured to prevent blatantly coercive practices from constitutional approval solely because they have a longstanding history. Then, where a practice passes this initial threshold, any coercive effect will be balanced against the history and tradition of acknowledging prayer and religious heritage in public life. This test more fully encapsulates the concerns inherent in the school board setting, honors our tolerance of some religious acknowledgment in public life, unifies elements of previously disparate Establishment Clause precedent, and is based on recent Supreme Court jurisprudence.

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