Coles ex rel. Coles v. Cleveland Bd. of Educ.
| Citation | 171 F.3d 369 |
| Decision Date | 18 March 1999 |
| Docket Number | Nos. 97-3082,97-3104,s. 97-3082 |
| Parties | 133 Ed. Law Rep. 392 Sarah E. COLES, by her next friend, Elizabeth Lashley COLES, Plaintiff, Plaintiff-Appellant, Gene T. Tracy, Plaintiff-Appellant, v. CLEVELAND BOARD OF EDUCATION, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Joshua R. Cohen (argued and briefed), Kohrman, Jackson & Krantz, Cleveland, Ohio, Joan M. Englund (briefed), ACLU of Ohio Foundation, Inc., Cleveland, Ohio, for Plaintiffs-Appellants.
John R. Climaco, Climaco, Climaco, Seminatore, Lefkowitz & Garofoli, Cleveland, Ohio, Richard M. Knoth (argued and briefed), Arter & Hadden, Cleveland, Ohio, for Defendants-Appellees.
Elizabeth M. Harvey (briefed), Lisa C. Wood (briefed), Kathryn K. Conde (briefed), Nutter, McClennen & Fish, Boston, Massachusetts, for Amicus Curiae.
Before: RYAN, COLE, and GILMAN, Circuit Judges.
GILMAN, J., delivered the opinion of the court, in which COLE, J., joined. RYAN, J. (pp. 386-89), delivered a separate dissenting opinion.
At issue in this appeal is whether the Cleveland Board of Education's practice of opening its meetings with a prayer is constitutionally permissible. This case puts the court squarely between the proverbial rock and a hard place. The rock is Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), holding that opening prayers at high school graduation ceremonies violate the Establishment Clause of the First Amendment. The hard place is Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), ruling that opening prayers are constitutionally permissible at sessions of a state legislature.
Are the prayers in question more like "school prayers" prohibited by Lee or closer to "legislative prayers" permitted by Marsh? Reasonable minds can differ on this issue, as indeed they have in this very case. The magistrate judge below wrote a thoughtful report and recommendation concluding that Lee was controlling. The district judge, on the other hand, wrote an equally thoughtful opinion holding that Marsh was more on point. For the reasons set forth below, we find that this case is closer to the rock than to the hard place. We therefore REVERSE the judgment of the district court and hold that the Cleveland Board of Education's practice of opening its meetings with a prayer is constitutionally prohibited.
I. BACKGROUND
The Cleveland public school system is comprised of several key components that together provide the city's youth with "a free, public elementary and secondary education." DeRolph v. State, 78 Ohio St.3d 193, 677 N.E.2d 733, 737 (1997); see also OHIO REV.CODE ANN. § 3313.48 (Anderson 1997) ("The ... school district shall provide for the free education of the youth of school age within the district."). These key components are the schoolhouses, teachers, administrators, and the local school board itself.
By statutory provision, local school boards are responsible for managing the myriad of day-to-day problems that typically surface in the operation of a public school system. See OHIO REV.CODE ANN. § 3313.47 (Anderson 1997). The school boards, for example, are responsible for promulgating policies concerning the school system's curriculum, dress code, searches of student lockers, disciplinary rules, expulsion and suspension procedures, and the promotion of "ethical principles and democratic ideals" in students. See OHIO REV.CODE ANN. §§ 3313.60, 3313.665, 3313.20(A)-(B), 3313.661(A), 3313.602(B)-(C) (Anderson 1997).
Approximately twice per month during the school year, the Cleveland Board of Education ("the school board") holds a meeting that is open to the public. These public meetings usually take place on school property--either in the school board's administration building or in a schoolhouse. During the public-comment portion of the meeting, students and parents in attendance voice their concerns to school board members over a wide range of topics related to the operation of the public school system. At one school board meeting, for example, a student at Max Hayes Vocational High School questioned the wisdom of the board's comprehensive achievement program because the program would require funding cutbacks for his school's academic curriculum. Similarly, a parent, accompanied by her sixth-grade son, used another school board meeting as a forum to vocalize support for her son's special-needs instructor, whom the school district had recently fired.
In addition to this public-comment segment, school board meetings are required under certain circumstances to serve as a forum for addressing student grievances. When a student has been suspended or expelled from school, for example, the student can demand that a hearing be conducted before the entire school board during one of its public meetings. See OHIO REV.CODE ANN. § 3313.66(D)-(E) (Anderson 1997).
Beyond the normal dialogue that occurs between board members and students during these public meetings, a student representative regularly sits on the school board itself. Student representatives are responsible for delivering a report to those in attendance that provides a student's perspective on activities taking place at school. In these reports, student representatives typically recap recent proceedings of the student council, inform the school board of student concerns and achievements, and describe upcoming student-sponsored events. At one board meeting, for example, a student at East Technical High School reminded board members of the upcoming visit by the school board president to a student council meeting and apprised the board of the student council's plans to hold a mock presidential election. Recognizing the input provided by these students, the school board's then-president Lawrence Lumpkin noted at the conclusion of one student representative's report:
The school board also regularly invites students to attend its meetings in order to receive awards for their academic, athletic, or community-service achievements. On these occasions, students, usually joined by friends and family, are asked by the board to come forward to receive their awards and to provide a few remarks to those in the audience. By way of illustration, a first-grade student was honored at one school board meeting for her participation in the Invent America program. In conjunction with her receipt of the award, the student explained to those in the audience how her invention worked. In sum, students not only attend school board meetings, but actively participate in the board's agenda.
Prior to 1992, the school board meetings were devoid of opening prayers. The local general election in November of 1991, however, produced wholesale changes in the makeup of the board. Most notably, four new members were sworn in on the seven-member school board on January 2, 1992. At the conclusion of the swearing-in ceremony new board president Lawrence Lumpkin announced that school board meetings from that point forward would open with a prayer. Although Lumpkin gave no explanation at the time regarding the need for an opening prayer, he later stated in an affidavit that his decision was prompted over concerns about the "strife and acrimony" that marked board meetings before January of 1992. By opening meetings with a prayer, Lumpkin hoped to create a "more businesslike and professional decorum" at the meetings. According to Lumpkin, "[t]hrough solemnization of the proceedings, both members of the school board and attendees have taken on a greater respect for the process and certainly attach importance to its School Board's activities."
Since the policy has been in effect, school board meetings have opened with either a prayer offered by a member from the local religious community chosen by the school board president, a moment of silent prayer, or a prayer led by the school board president himself. With few exceptions, the clergy asked to offer the prayer have been members of the Christian faith. Furthermore, before each invocation, the school board president would ask the invited clergy to "lead us in opening prayer" and would add his own "amen" at the conclusion of the prayer. The following is typical of the prayers delivered at meetings of the school board:
Our prayer to Thee this night is for the entire Board of Education, for all that makes up their individual personalities, that they may do justly, love mercy, to walk humbly in a consecrated way to their Lord. Help them to really understand that the old order changes, that the needs of children will and must come first. May they respect your word which says do not harm the children for their angels do stand before thy throne ready to defend their cause. So help them to further understand that what they say and do here is crucial to their eternity.
On numerous occasions, the prayers offered by the invited clergy member made specific reference to Jesus by name. For example, at the April 27, 1995 board meeting, Minister Jerry Birch delivered the following prayer:
With all heads bowed, let us pray: Almighty God, our father in heaven, we come before you right now at this moment, Lord, just thanking you first of all for being God and being sovereign over all the earth. We thank you for being our creator. We thank you, Lord, for your grace, mercy, for your love and for your forgiveness.
Lord, we ask your presence and involvement in these proceedings this evening, we ask that you would give our leaders, give them understanding and give them knowledge, that they may do their best for our children and for our city, that you might be glorified. In Jesus' name we pray. Amen.
Although most of the prayers delivered at the school board meetings carried religious overtones, some...
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