Sarah E. Coles, by Her Next Friend, Elizabeth Lashley Coles, Gene T. Tracy v. Cleveland Board of Education

RYAN, Circuit Judge,

dissenting.

The majority opinion reverses the judgment of the district court and holds that the Cleveland Board of Education’s practice of opening each of its regular business meetings with a prayer violates the Establishment Clause of the First Amendment of the United States Constitution. In my judgment the majority opinion is plainly mistaken.

In a carefully written, closely reasoned, and constitutionally solid analysis the district judge, the Honorable David D. Dowd, Jr., got it precisely right. It would be difficult to improve upon Judge Dowd’s excellent opinion, and I am satisfied therefore to align myself with it fully and to adopt his opinion as though it were my own. But it is from the majority opinion in this court that I dissent, and, therefore, there are some additional things to be said.

This is not a complicated case; important, to be sure, but not complicated.

As Judge Dowd and my colleagues correctly observed, the Supreme Court has not spoken on the question before us today. But it has spoken about the constitutionality of prayers in other public bodies, and some of these cases, as the majority opinion recognizes, provide helpful guidance.

It is firmly settled that the state may not proscribe or endorse prayers in a public school classroom. See Wallace v. Jaffree, 472 U.S. 88 , 61, 105 S.Ct. 2479 , 86 L.Ed.2d 29 (1985). And that prohibition has been extended to public high school graduation ceremonies, primarily on the theory that such assemblies are essentially an extension of the classroom environment, and that the same compelling reasons that proscribe prayers in the classroom, proscribe them at high school graduation ceremonies as well. See Lee v. Weisman, 505 U.S. 577 , 112 S.Ct. 2649 , 120 L.Ed.2d 467 (1992).

It is equally well settled that there is no constitutional impediment to prayers offered at the opening of a state legislative assembly. Marsh v. Chambers, 463 U.S. 788 , 103 S.Ct. 3330 , 77 L.Ed.2d 1019 (1983). Marsh is, in part at least, a recognition that the Supreme Court’s longstanding hostility to any religious expression in any government-sponsored assembly must yield to the deep-seated tradition in this country of prayer recitation at the opening sessions of Congress, many state legislatures, and, in modified form, every federal courtroom in the land including the Supreme Court. But what if there had been a longstanding history in this country of prayer being recited to open the school day in public school classrooms? Would logic suggest that the “historic tradition” reasoning of Marsh be applied to permit prayers in public school classrooms? Certainly it would not, because there is a principle that distinguishes the effect of public school classroom prayers from prayers recited in legislative assemblies and in federal courtrooms. And that principle is that elementary- and secondary-level students are captive, impressionable, and easily coerced children required by state law to be in the classroom, primarily for the purpose of education and indoctrination. Government-sponsored or even government-tolerated prayer in that environment is very easily seen as having a likely, even if unintended, coercive and indoctrinating effect.

*387 Prayer offered in a legislative assembly — federal, state, or even municipal for that matter — presents none of the “dangers” the Supreme Court sees in classroom prayers.

My colleagues recognize and acknowledge that distinction of course, and seeing it, they struggle mightily to convert the regular business meetings of the Cleveland Board of Education into the functional equivalent of a public elementary or secondary school classroom. The effort fails.

In order to equate the Board of Education’s business meetings with a public school classroom, the majority opinion invents the notion that the Supreme Court cases proscribing prayers in the classroom, or at a graduation exercise, really do not mean what they say; but rather, really mean that the prayer is proscribed in every “school setting” or “public school context.” Presumably that would include a teacher’s conference in the evening or during a weekend, a training session for school administrators, a PTA supper in the school gym, or any other activity conducted on school property, including, of course, a board of education meeting. My colleagues offer no explanation as to what a “school setting” is or a “public school context” is, and cite no authority from the Supreme Court for prohibiting prayer in such “settings,” because there is none. Certainly it is true that the earliest Supreme Court cases proscribing prayer in public school classrooms relied heavily on the Justices’ insistence that the Establishment Clause creates a “separation between church and state,” and the Justices’ concern about the “machinery” of the state “advancing religion” in any public forum including a public school classroom. But the Supreme Court itself, apparently recognizing that that rationale does not withstand close scrutiny given the practice in this country of “the machinery of government” permitting and even prescribing prayers at the opening sessions of Congress, state legislative assemblies, and federal courts, has in its later cases sensibly emphasized that it is the coercive, indoctrinating effect of classroom prayers upon impressionable children that is the real basis for prohibiting them. See, e.g., Lee, 505 U.S. at 592 , 112 S.Ct. 2649 ; Edwards v. Aguillard, 482 U.S. 578, 584 , 107 S.Ct. 2573 , 96 L.Ed.2d 510 (1987).

So the question that suggests itself is whether the “dangers” the Supreme Court sees in classroom prayers apply with equal force to prayers offered at the beginning of a board of education meeting. To ask the question is to answer it. It is perfectly plain to me that the public meetings of the Cleveland Board of Education are light years away from a classroom full of elementary or secondary school students. The Cleveland Board of Education is a statutory body of citizens elected by the people of Cleveland for the purpose of administering the Cleveland public school system. It is an administrative/legislative unit of government that has the power of taxation and eminent domain, and it is mandated by statute to conduct the business affairs of the Cleveland Public Schools. These affairs include buying and selling real estate, constructing buildings, establishing educational policy, hiring and firing administrators and teachers, negotiating with labor unions, and occasionally conducting ceremonies honoring student achievement. Even if there were no Marsh decision and, therefore, no Supreme Court guidance on the matter of the constitutionality of prayer in public law and policy-making assemblies, my colleagues’ attempt to make the meetings of the Cleveland Board of Education equate with the regular educational environment of a primary or secondary public school classroom would be totally unconvincing. But Marsh is on the books, and this court is not free to simply disagree with its pronouncement that there is no constitutional obstacle to “opening ... sessions of legislative and other deliberative public bodies with prayer.” Marsh, 463 U.S. at 786 , 103 S.Ct. 3330 (emphasis added).

*388 Obviously, the Cleveland Board of Education’s business meetings are meetings of a “deliberative public bod[y].” They do not become less so because they are conducted on real estate owned by the school board, and that is so whether the meetings are held in the school district administrative building in downtown Cleveland or, from time-to-time for the convenience of the public, in public school classroom buildings. Wherever it conducts its business, the Cleveland Board of Education is indisputably a “deliberative public bod[y].” The syllogism derived from Marsh goes like this:

There is no constitutional bar to “opening ... sessions of legislative and other deliberative public bodies with prayer.” But the Cleveland Board of Education is a “deliberative public bod[y].”

Therefore, there is no constitutional bar to “opening ... sessions of [the Cleveland Board of Education] with prayer.”

Apparently not entirely comfortable with its argument that prayer is proscribed at the Board of Education meetings simply because the meetings occur in a “school setting” or in a “public school context,” the majority opinion shifts its reasoning slightly to embrace the plaintiffs argument that because children are sometimes present at the Board of Education meetings, prayer, for that reason, should be forbidden. The problem with that tack is that just as the spectators-— children included — in the galleries of our national House and Senate, and in our states’ 50 legislatures may come and go freely as they please while the business of the public body is being conducted, so too may they choose to attend or not attend meetings of the Cleveland Board of Education, and if they do attend, come and go as they wish. Stated differently, no amount of federal judicial opposition to the principle of prayer being recited in government assemblies can logically make the reason for proscribing prayers in public school classrooms fit the context of meetings of an elected public school board.

The majority also misplaces emphasis on the location of the meeting. None of the case law prohibiting prayer in public schools has focused on the titleholder to the real estate. Instead, the focus has been on the coerciveness of the situation and on the nature of the business being conducted. Prayer is prohibited when the business being conducted is the education of our youth. Surely a teacher could not lead his students in prayer during a field trip to the zoo simply because the class was no longer on school property. Similarly, the congregation of a church holding its services in a public school building would be permitted to pray even though it is located on school grounds.

In an effort to minimize the importance of coerciveness in the Supreme Court’s school prayer doctrine, the majority claims that high school graduation ceremonies are purely voluntary, indicating that coerciveness was not important to the Court’s decision in Lee . However, the Supreme Court specifically rejected that notion:

Petitioners and the United States, as amicus, made this a center point of the case, arguing that the option of not attending the graduation excuses any inducement or coercion in the ceremony itself. The argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, Deborah could elect not to attend commencement without renouncing her diploma; but we shall not allow the case to turn on this point. Everyone knows that in our society and in our culture high school graduation is one of life’s most significant occasions. A school l'ule which excuses attendance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term “voluntary,” for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years.

*389 Lee, 505 U.S. at 594-95 , 112 S.Ct. 2649 . As I understand the Supreme Court’s decisions in this area, coerciveness is clearly central to its decisions.

Finally, I find it unnecessary to consider the three-factor test announced by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 , 91 S.Ct. 2105 (1971), relied on by the majority to invalidate the prayer practice before us today. In Marsh, the case most closely analogous to this case, the Supreme Court acknowledged the existence of the Lemon test, but did not apply it. See Marsh, 463 U.S. at 786 , 103 S.Ct. 3330 . Instead, the Court concluded that because the practice of beginning legislative sessions and “other deliberative public bodies” with a prayer is one that existed at the time the First Amendment was drafted, it cannot possibly be the kind of religious practice that the Establishment Clause' was designed to guard against. See id. at 786-88, 103 S.Ct. 3330 . Far be it for me to run ahead of the United States Supreme Court. If that Court is satisfied that the Lemon factors did not apply to prayer before a legislative or “other deliberative public bod[y],” I am satisfied they do not apply to the deliberations of the Cleveland Board of Education.

I would affirm the district court’s judgment.