School Board’s Prayers and Religious Commentary Violated U.S. Constitution’s Establishment Clause

Category: Client Update
Date: Feb 6, 2019 04:29 PM

The Establishment Clause of the U.S. Constitution protects an individual’s freedom of religious expression by prohibiting the government from establishing any form of religion. The Ninth Circuit Court of Appeals found that a school board’s policy and practice of permitting religious exercise during public board meetings, including prayer and religious commentary, violated the Establishment Clause. 

The Chino Valley School Board adopted a prayer policy that allowed any member of the clergy, any religious leader, or a volunteer from the audience to deliver a prayer (or invocation) to initiate the public portion of the Board meetings. School children were frequently present during Board meetings to give presentations, act in a student advisory capacity, participate in extracurricular activities, or see the adjudication of student discipline.  During the public meetings, several Board members often commented on the Christian religion. Among other things, Board members invoked Christian beliefs, gave Bible readings, endorsed prayer, and commented regarding the Board’s goals that “one goal is under God, Jesus Christ.” The Ninth Circuit observed that these comments linked “the work of the Board, teachers, and the school community to Christianity.”

The Ninth Circuit applied a three-part test that the U.S. Supreme Court devised in Lemon v. Kurtzman (1971) 403 U.S. 602 to analyze the Board’s actions.  In order to avoid an Establishment Clause violation, government action: 1) must have a secular legislative purpose; 2) its principal or primary effect must be one that neither advances nor inhibits religion, and 3) it must not foster an excessive “entanglement” between government action and religion.

The court decided that the Board’s prayer policy and practice did not have the secular purpose that has been found in cases in which a prayer was directed toward adult lawmakers and was historically used to open a legislative session.  Instead, the court found a religious purpose in the Board’s prayer policy and practice because the prayers took place in front of large numbers of school children who were not present voluntarily and who did not have an equal relationship with the Board.  The court found that the Board’s reasons for giving the invocation – to solemnize Board meetings and celebrate religious diversity -- did not satisfy the first part of the Kurtzman test.  The court found that a non-religious message could have been sufficient to solemnize the proceedings.  Moreover, there was no religious diversity or non-religious individuals among those on the Board’s list of those eligible to lead the prayer or invocation.   Unlike a session of Congress or a state legislature, or a meeting of a town board, the court decided that the Board meetings functioned as extensions of the educational experience of the district’s public schools. 

The Board’s actions also failed the second and third parts of the Kurtzman test because the prayers frequently advanced the religion of Christianity, and created an excessive entanglement between the Board and religion.

The court found that the existence of secular means of achieving the Board’s purposes to provide a solemn tone to the meetings, coupled with the history of Christian prayer and commentary at the Board meetings, demonstrated that the prayer policy was predominantly religious and therefore violated the Establishment Clause.

Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education (9th Cir. 2018) 896 F.3d 1132 (reh’g denied by (9th Cir. 2018) 910 F.3d 1297).


An important factor that distinguished this case from cases that allowed prayer invocations at the outset of government legislative meetings was that many school children were present at the Board meetings as part of their educational activities.  Another factor was that only the Christian religion was involved. 

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