Freedom from Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ.

• Citation: 910 F.3d 1297 (Mem)
• Decision Date: 26 December 2018
• Docket Number: No. 16-55425,16-55425
• Parties: FREEDOM FROM RELIGION FOUNDATION, INC., Plaintiff-Appellee, v. CHINO VALLEY UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION; James Na, Chino Valley Unified School District Board of Education Board Member in his official representative capacity; Sylvia Orozco, Chino Valley Unified School District Board of Education Board Member in her official representative capacity; Charles Dickie, Chino Valley Unified School District Board of Education Board Member in his official representative capacity; Andrew Cruz, Chino Valley Unified School District Board of Education Board Member in his official representative capacity; Irene Hernandez-Blair, Chino Valley Unified School District Board of Education Board Member in her official representative capacity, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

910 F.3d 1297 (Mem)

FREEDOM FROM RELIGION FOUNDATION, INC., Plaintiff-Appellee,

v.CHINO VALLEY UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION; James Na, Chino Valley Unified School District Board of Education Board Member in his official representative capacity; Sylvia Orozco, Chino Valley Unified School District Board of Education Board Member in her official representative capacity; Charles Dickie, Chino Valley Unified School District Board of Education Board Member in his official representative capacity; Andrew Cruz, Chino Valley Unified School District Board of Education Board Member in his official representative capacity; Irene Hernandez-Blair, Chino Valley Unified School District Board of Education Board Member in her official representative capacity, Defendants-Appellants.

No. 16-55425

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 8, 2017, Pasadena, California

Filed December 26, 2018

ORDER

The full court has been advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

The petition for rehearing en banc is denied.

O’SCANNLAIN, Circuit Judge,^** with whom RAWLINSON, BYBEE, CALLAHAN, BEA, IKUTA, BENNETT, and R. NELSON, Circuit Judges, join, respecting the denial of rehearing en banc:

"In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society." Marsh v. Chambers , 463 U.S. 783, 792, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). So instructed the Supreme Court in upholding as constitutional the practice of the Nebraska Legislature of opening each legislative day with a prayer. "The Court has considered this symbolic expression to be a tolerable acknowledgement of beliefs widely held, rather than a first, treacherous step towards establishment of a state church." Town of Greece v. Galloway , 572 U.S. 565, 134 S.Ct. 1811, 1818, 188 L.Ed.2d 835 (2014) (internal quotation marks and citation omitted). And so reaffirmed the Supreme Court in upholding as constitutional the practice of a New York town board opening its monthly board meetings with a prayer.

Nonetheless, a panel of our court has now concluded that the practice of including prayer at the beginning of the open session of a public legislative body is a violation of the Establishment Clause¹ and is no longer constitutional. In doing so, the panel rejected the clear instruction of the Supreme Court and created a circuit split in the process. And today, the full court has failed to correct our own error.

With respect, I believe our court’s refusal to rehear this case en banc is a needless mistake. The practice of Defendant-Appellant Chino Valley Unified School District Board of Education to begin its regular public meetings with prayer does not constitute an establishment of religion in any sense of that term.

I

First, a brief overview of the relevant facts. The Chino Valley Unified School District Board of Education ("Chino Valley" or "the Board") is the "governing" body that oversees all schools within the district. Cal. Educ. Code § 35010. As such, it is a legislative body. Cal. Gov’t Code §§ 54951, 54952. The Board holds eighteen meetings per year, which may consist of both closed-session and open-session segments. Freedom From Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ. , 896 F.3d 1132, 1138 (9th Cir. 2018). During such meetings, typically held at the School District’s office building, the Board governs by "conduct[ing] its business of making decisions regarding district administration." Id. at 1138.

The five Board members are elected at large by the qualified voters of the school district to serve four-year terms. Cal. Educ. Code § 35012. Under the California Education Code, the school district may—but need not—also appoint one or more "pupil members" to the Board to serve a one-year term. Id. For Chino Valley, such student representative to the Board has been the president of the Student Advisory Council, and may cast a preferential vote on matters during the open session. Id. ; Freedom From Religion , 896 F.3d at 1139. The preferential vote does not actually factor into the final outcome of any vote by the Board. Cal. Educ. Code § 35012.

After a closed session during which the five adult Board members make decisions on student discipline, student readmission, and district employment matters outside the presence of the public or any student, the Board meeting moves into open session. Freedom From Religion , 896 F.3d at 1138. During the open session, the Board handles its general business of governing the district. Id. at 1138–39. There is also a public comment period following comments by a student representative and an employee representative. Id. at 1138. The open session may also include presentations by classes or students, or highlight the accomplishments of students. Id. The meeting closes with public statements by each of the adult Board members. Id. at 1139.

Since 2010, the Board has included prayer as part of its meetings "[i]n order to solemnize proceedings of the Board of Education." Id. at 1139, 1149. Pursuant to the Board’s unanimously adopted policy regarding invocations at meetings, the prayer is delivered "by an eligible member of the clergy or a religious leader in the boundaries of the district." Id. at 1139–40 (internal quotations omitted). Clergy are scheduled on a first-come, first-served, or otherwise random basis, and no one "may be scheduled to pray at consecutive meetings, or at more than three per year." Id. The Board invites clergy members and religious leaders to offer an invocation according to their own conscience in "a spirit of respect and ecumenism," but requests "that the prayer opportunity not be exploited as an effort to convert others to the particular faith of the invocational speaker, nor to disparage any faith or belief different from that of the invocational speaker."

II

The Supreme Court has long recognized the constitutionality of legislative prayer. In Marsh , the Court observed that "[t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country." 463 U.S. at 786, 103 S.Ct. 3330. Yet, the Court explained, the practice of legislative prayer is constitutional not simply because it is longstanding, but also because such long historical practice demonstrates what the drafters were understood to have meant at the time of the Founding. Id. at 790, 103 S.Ct. 3330. "Clearly the men who wrote the First Amendment Religion Clauses did not view ... opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress." Id. at 788, 103 S.Ct. 3330. Thus, the Court concluded, the Nebraska Legislature’s practice of opening sessions with a chaplain—a Presbyterian clergyman for the previous sixteen years, paid by the public—offering a prayer in the Judeo-Christian tradition was constitutional. Id. at 793, 103 S.Ct. 3330.

The Supreme Court recently reaffirmed the continuing vitality of such tradition as applied to a local setting in Town of Greece . "As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society." Town of Greece , 134 S.Ct. at 1818. Thus, the Court held that the Constitution permits a town board to open its monthly meetings with prayer, even when such prayer is sectarian. Id. at 1815, 1820. In the process, the Court rejected arguments which sought to cabin the holding of Marsh and to distinguish the town’s prayer practice from the long-recognized tradition of legislative prayer. Id. at 1815, 1820–21.² And the Court determined, the prayer practice was constitutional despite the fact that town board meetings, beyond their legislative function, could be "occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters." Id. at 1845 (Kagan, J., dissenting (internal quotations omitted) ). Such practice was constitutional despite the fact that the setting of a town board meeting may be "intimate," with "children or teenagers[ ] present to receive an award or fulfill a high school civics requirement." Id. at 1846 (Kagan, J., dissenting). Despite these features, the town board meeting "fit[ ] within the tradition long followed in Congress and the state legislatures." Id. at 1819 (Kennedy, J., opinion of the Court). Nowhere did the Court limit such tradition specifically to Congress, state legislatures, or town boards. Id. at 1818–19.

III

The panel in this case disparages such well-established precedent. It improperly concludes that "prayer at the Chino Valley Board meeting falls outside the legislative-prayer tradition" entirely. Freedom From Religion , 896 F.3d at 1142. Instead, the panel bizarrely transforms the Board meetings into a "school setting." Id. at 1145. Because the "meetings function as extensions of the educational experience of the district’s public schools," the panel argues—without any legitimate support—that they are "inconsonant with the legislative-prayer tradition." Id.

This distinction is plainly flawed: the Board, as a governing body, exists in order to legislate —not in order to educate. Such a manufactured distinction cannot justify the panel’s outright disregard for Supreme Court instruction and guidance. The panel’s view of the legislative prayer tradition recognized by the Supreme Court is ominously narrow, and its conclusion is inconsistent with the Supreme Court’s clear instruction...