Freedom From Religion v. Chino Valley Uni. Sch. Dist.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREEDOM FROM RELIGION No. 16-55425
FOUNDATION, INC.,
Plaintiff-Appellee, D.C. No.
5:14-cv-02336-
v. JGB-DTB
CHINO VALLEY UNIFIED SCHOOL
DISTRICT BOARD OF EDUCATION; OPINION
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.
2 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted November 8, 2017
Pasadena, California
Filed July 25, 2018
Before: M. Margaret McKeown and Kim McLane
Wardlaw, Circuit Judges, and Wiley Y. Daniel, * District
Judge
Per Curiam Opinion
*
The Honorable Wiley Y. Daniel, United States District Judge for
the U.S. District Court for Colorado, sitting by designation.
FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD 3
SUMMARY **
Civil Rights
The panel affirmed the district court’s grant of summary
judgment and injunctive relief in favor of plaintiffs in an
action challenging a school board’s policy and practice of
permitting religious exercise during board meetings,
including a religious prayer at meetings that are open to the
public and that include student attendees and participants.
The panel held that the school board’s prayer policy and
practice violate the Establishment Clause. The panel held
that the religious invocations to start the open portions of
Board meetings are not within the legislative-prayer
tradition that allows certain types of prayer to open
legislative sessions. The panel noted that this was not the
sort of solemnizing and unifying prayer, directed at
lawmakers themselves and conducted before an audience of
mature adults free from coercive pressures to participate,
that the legislative-prayer tradition contemplates. Instead,
these prayers typically took place before groups of
schoolchildren whose attendance was not truly voluntary
and whose relationship to school district officials, including
the Board, was not one of full parity. Applying the three-
pronged test first articulated in Lemon v. Kurtzman, 403 U.S.
602, 612–13 (1971) for determining whether a governmental
policy or action is an impermissible establishment of
religion, the panel concluded that the prayer policy lacked a
secular legislative purpose and therefore, under Lemon,
violated the Establishment Clause.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
The panel held that the district court’s injunction, which
enjoined board members “from conducting, permitting or
otherwise endorsing school-sponsored prayer in Board
meetings,” was not overbroad because it was limited to
restricting only speech that constituted a governmental
establishment of religion.
COUNSEL
Robert H. Tyler (argued), Jennifer L. Bursch, and James A.
Long, Tyler & Bursch LLP, Murietta, California, for
Defendants-Appellants.
David J. Kaloyanides (argued), David J.P. Kaloyanides
APLC, Chino, California, for Plaintiff-Appellee.
Deborah J. Dewart, Swansboro, North Carolina; James L.
Hirsen, Anaheim Hills, California; for Amicus Curiae
Justice and Freedom Fund.
Helgi C. Walker, Sean J. Cooksey, Kian J. Hudson, and Nick
Harper, Gibson Dunn & Crutcher LLP, Washington, D.C.;
Kristen K. Waggoner and Brett Harvey, Alliance Defending
Freedom, Scottsdale, Arizona; David A. Cortman, Alliance
Defending Freedom, Washington, D.C.; for Amicus Curiae
Alliance Defending Freedom.
Francis J. Manion and Geoffrey R. Surtees, American Center
for Law and Justice, New Hope, Kentucky; Edward L. White
III and Erik M. Zimmerman, American Center for Law and
Justice, Ann Arbor, Michigan; for Amicus Curiae American
Center for Law and Justice.
FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD 5
Steven W. Fitschen, The National Legal Foundation,
Virginia Beach, Virginia, for Amicus Curiae Congressional
Prayer Caucus Foundation.
James G. Abernathy, Olympia, Washington; Mark
Goldfeder and Anton Sorkin, Restoring Religious Freedom
Project, Atlanta, Georgia; for Amici Curiae Law and
Religion Practitioners.
Richard B. Katskee, Eric Rothschild, and Kelly M. Percival,
Americans United for Separation of Church and State,
Washington, D.C.; Steven M. Freman, David L. Barkey, and
Michelle N. Deutchman, Anti-Defamation League, New
York, New York; Daniel Mach and Heather L. Weaver,
American Civil Liberties Union Foundation, Washington,
D.C.; Peter Eliasberg, ACLU of Southern California, Los
Angeles, California; Brendan Hamme, ACLU of Southern
California, Santa Ana, California; for Amici Curiae
Americans United for Separation of Church and State;
American Civil Liberties Union; ACLU of Southern
California; Anti-Defamation League; Central Conference of
American Rabbis; Hadassah, The Women’s Zionist
Organization of America, Inc.; Interfaith Alliance; Hindu
American Foundation; Jewish Social Policy Action
Network; Union for Reform Judaism; and Women of
Reform Judaism.
6 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
OPINION
PER CURIAM:
The Establishment Clause serves intertwined purposes,
pertaining to individual freedom and the democratic nature
of our system of government. The Clause protects “the
individual’s freedom to believe, to worship, and to express
himself in accordance with the dictates of his own
conscience.” Wallace v. Jaffree, 472 U.S. 38, 49 (1985). It
likewise ensures that the government in no way acts to make
belief—whether theistic or nontheistic, religious or
nonreligious—relevant to an individual’s membership or
standing in our political community. Lynch v. Donnelly,
465 U.S. 668, 688 (1984) (O’Connor, J., concurring). The
Establishment Clause, grounded in experiences of
persecution, affirms the fundamental truth that no matter
what an individual’s religious beliefs, he has a valued place
in the political community.
These principles are central to our analysis in the context
of public schools. Because children and adolescents are just
beginning to develop their own belief systems, and because
they absorb the lessons of adults as to what beliefs are
appropriate or right, we are especially attentive to
Establishment Clause concerns raised by religious exercise
in the public-school setting.
This case implicates just such concerns. Freedom From
Religion Foundation, two parents of students in the district,
and twenty Doe plaintiffs—students, parents, district
employees, a former district employee, and attendees of
school board meetings (collectively “the Foundation”)—
challenge a religious exercise at a local school board’s
meetings—including a prayer in the portion of the meeting
that is open to the public and that includes student attendees
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and participants. The Chino Valley Unified School District
Board of Education (“Chino Valley” or “the Board”) appeals
the district court’s grant of summary judgment to the
Foundation on its Establishment Clause claim and
challenges the scope of the injunctive relief ordered by the
district court. They also seek to vacate, as moot, a separate
portion of the district court’s judgment, declaring that the
Board’s policy and custom of prayer and Bible readings at
its meetings violates the Establishment Clause. We affirm
the district court’s judgment.
I. Background
The Board is the governing body for the school district
and accordingly oversees all district schools. See Cal. Educ.
Code § 35010. The Board holds roughly eighteen public
meetings per year. These meetings for some period of years
included a public prayer, until enjoined by the district court.
In October 2013, the Board adopted an official policy
regarding the prayer practice, permitting an invocation at
each Board meeting and providing a means for the Board to
select the prayer-giver. The Board’s policy and practice of
prayer are at issue in this appeal.
A. Board Meetings
The Board meetings share a familiar structure. 1 After a
roll call and opportunity for public comment on closed-
session items, the first portion of the meeting is closed to the
public. During this time, the Board’s five adult, non-student
members make decisions on student discipline, including
1
We describe here the structure for regular sessions of the Board.
Occasional “special meetings” do not follow this structure—notably,
they usually if not always lack a closed-session component. Those
Board meetings also often involve prayer.
8 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
suspension and expulsion, student readmission, negotiations
with the employee labor union, and hiring, firing, and
discipline of district personnel.
The open portion of the meetings begins with a report by
the Board president on the preceding closed session. Next,
a member of the school community—sometimes, a
student—recites the Pledge of Allegiance, and the Junior
Reserve Officers’ Training Corps presents the colors. Then,
there is an opening prayer, usually led by a member of the
clergy. On occasion, a Board member or member of the
audience leads the prayer instead. 2
A “student showcase”—presentations by classes or
student groups from the district—often follows the opening
prayer. At times, the Board also sets aside time for “student
recognition,” to highlight the academic and extracurricular
accomplishments of students in the district. Following
comments by the student representative and employee
representatives, there is a period for public comment. The
Board then conducts its business of making decisions
regarding district administration. At one typical meeting, it
2
Chino Valley’s prayer policy provides that the Board president
may select a Board or audience member as a volunteer if the selected
clergy member does not appear. The policy also prohibits the Board
from “engag[ing] in any prior inquiry, review of, or involvement in, the
content of any prayer to be offered by an invocational speaker.” It
appears that these limitations on non-clergy were not always followed,
however. For example, in September 2014, eleven months after the
adoption of the prayer policy, a pre-selected community member gave
the invocation and then received a recognition plaque from the Board
for, according to the Board minutes, “his continued support and prayers
for the Chino Valley Unified School District.” The then-Board president
disclosed during the meeting that he had requested that the community
member focus the prayer on the district’s ongoing negotiations with the
school employees’ association.
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approved fundraising activities, field trips, the chemistry
textbook, course revisions and new courses, the expulsion of
two students, a bid for asphalt slurry seal at certain facilities,
the revision of the use-of-school-facilities policy, and
personnel items. During this time, the Board also approves
student discipline and readmission cases, and requests for
waiver of high school graduation requirements. The meeting
closes with “communications”—public statements by each
of the adult Board members to the school community. Very
occasionally, a second closed session occurs after the open
portion.
Both the student showcase and the student recognition
components of the meeting center on the accomplishments
of students of all ages—from elementary school to high
school—who are in attendance. Musical or dance
performances by elementary school students are common.
For example, at one meeting second-graders sang folk songs;
another meeting featured the elementary school’s advanced
band students. Sometimes, the “student showcase” is
academic. Elementary and high school students make
presentations to the Board on their studies in innovative
classes. The student recognition portion celebrates both
academic and extracurricular achievements. The Board has
honored the district’s elementary school and high school
science fair winners, recipients of college scholarships, and
the district high school student with the highest GPA. It has
also recognized the Chino High School girls’ varsity softball
team, Cub Scout award recipients, winners of an elementary
school art contest and school read-a-thons, and high school
students fundraising for breast-cancer research.
10 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
The Board’s student representative is also an active
participant in the meetings. She 3 is president of the Student
Advisory Council and sits on the Board to represent student
interests. The student representative votes with the Board in
the open session, though her vote is recorded separately.
During the period for comment at meetings, she discusses
issues of importance to the student community.
The Board meetings are open to any member of the
public. Cal. Gov’t Code § 54954.3. They are also broadcast
on local television.
B. The Board’s Prayer Policy and Practice
The Board has included prayer as part of its meetings at
least since 2010. In September 2013, the Foundation sent
the Board a letter requesting that it “refrain from scheduling
prayers as part of future school board meetings.” One month
later, the Board adopted a policy regarding invocations at
board meetings. The prayer policy provides for prayer
delivery “by an eligible member of the clergy or a religious
leader in the boundaries of” the district. Should the selected
member of the clergy not appear, the Board president can
solicit a volunteer from the Board or audience.
The Board selects clergy for each meeting pursuant to a
list of eligible local religious leaders and chaplains kept by
the superintendent’s designee. The designee compiles this
list, under the terms of the policy, by 1) looking through a
commercial phone book “for ‘churches,’ ‘congregations,’ or
other religious assemblies”; 2) collating “research from the
Internet”; and 3) consulting with “local chambers of
3
For both the 2013–2014 and 2014–2015 academic years, the
student representative was a young woman.
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commerce.” Any “religious assembl[y] with an established
presence” in Chino Valley is eligible, and a religious entity
can write to the superintendent’s designee to ensure that it is
on the list. All chaplains for fire departments and law
enforcement agencies in Chino Valley and “any nearby
military facilities” are automatically on the list. Once a year,
the designee mails an invitation to pray at Board meetings to
the “religious leader” of each congregation on the list, as
well as to all the chaplains. The policy provides both that
clergy are “scheduled on a first-come, first-serve, or other
random basis” and that the “designee shall make every
reasonable effort to ensure that a variety of eligible
invocational speakers are scheduled.” No single individual
may be scheduled to pray at consecutive meetings, or at
more than three per year. The Board adopted its prayer
policy unanimously. All five adult members of the Board
voted in favor; the student representative also voted for its
adoption.
Invited clergy have typically given the prayers.
However, Board members gave the opening prayer at least
four times after the adoption of the policy. The president of
the California School Employees Association and the
district’s director of secondary curriculum also provided
opening prayers on different occasions. At least twice,
community members gave prayers.
C. Expression of Religious Beliefs at Board
Meetings
Historically—including after the adoption of the prayer
policy, and during the pendency of the litigation now before
us—Board members’ invocation of Christian beliefs, Bible
readings, and further prayer were a regular feature of Board
meetings. Board members stressed that they viewed such
religious engagement as central to the mission and life of the
12 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
school community. In a meeting in February 2014,
following adoption of the prayer policy, Board member
Andrew Cruz stated, “I think there are very few districts of
that powerfulness of having a board such as ourselves having
a goal. And that one goal is under God, Jesus Christ.” At
another meeting, then-Board president James Na “urged
everyone who does not know Jesus Christ to go and find
Him.” Na informed the assembled audience in May 2014,
“God appointed us to be here—whether you to be teachers,
or our staff members, or our principals, or our directors,
assistant superintendents . . . .” At another meeting, he
instructed the teachers and the assembled audience:
“anything you desire, depend on God.” Cruz publicly
thanked a school principal “for placing God before herself
and praying for every classroom on Saturday.”
During Board meetings from 2013 to 2015, Na and Cruz
regularly endorsed prayer, read Bible verses, and reaffirmed
their Christian beliefs. A third member of the five-member
Board that approved the prayer policy, Charles Dickie, gave
the invocation at the Board meetings at least three times and
was identified by Na as a future “neighbor . . . in heaven,”
after Na discussed Dickie’s missionary work in Africa at a
Board meeting. No Board member sought to halt any of the
religious comments.
The religious discussion at Board meetings included
specific comments on the opening prayers given by outside
clergy. At a June 2013 meeting, Cruz stated that the pastor
who had given the opening invocation “was right, in his
prayers, that I need [to] first look up to Jesus Christ for
serving our students.” At another meeting following the
adoption of the prayer policy, Na thanked the Christian
pastor who gave an opening prayer “for your serving the
Lord Jesus Christ and serving all of our students because we
do need your prayers [on a] daily basis.”
FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD 13
Na and Cruz’s explicit linkages of the work of the Board,
teachers, and the school community to Christianity, and their
endorsement of prayer by the faculty, were frequent.
Minutes from one meeting state that Cruz “praised personnel
for putting God first.” On another occasion, Cruz described
“one voice united in prayer at Chino,” and read Romans
15:6—“so that with one mind and one voice you may glorify
the God and Father of our Lord Jesus Christ”—to the Board-
meeting audience. 4
In the course of Board meetings, preaching to the district
community and biblical readings by the Board members
were also common. At one meeting, Na stated that he
thought a deceased community member “wanted you, all the
TV viewers and our friends to hear again,” and then read,
John 3:16. 5 Cruz, at another meeting, stated to the audience:
“If we have confessed our sins and ask God’s forgiveness,
we simply need to keep a forward focus toward the goal of
pleasing Christ.” At yet another meeting, Cruz told the
audience: “Christ died for our sins, according to the
scripture, and . . . he was buried, and . . . he was raised on
the third day, according to the scripture. Now that is the
gospel.” Another time, he instructed the audience “that the
two greatest commandments are to [l]ove the Lord your God
4
The record does not provide the specific translation from which
Cruz read. This version of Romans 15:6 is from the New International
Version. Other translations are substantially similar. See, e.g., Romans
15:6 (New Revised Standard Version) (“So that together you may with
one voice glorify the God and Father of our Lord Jesus Christ.”); Romans
15:6 (King James) (“That ye may with one mind and one mouth glorify
God, even the Father of our Lord Jesus Christ.”).
5
This verse sets forth a key tenet of Christian belief: “For God so
loved the world that he gave his only Son, so that everyone who believes
in him may not perish but may have eternal life.” John 3:16 (New
International Version).
14 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
with all your heart, all your soul, all your strength, and all
your mind” and to “[l]ove your neighbor as yourself.”
During the comment period at one meeting, Na “thanked
God for sending his son Jesus Christ so that our sins are
forgiven and [we] may have eternal life in heaven.” He also
described a news story about a murder in order to instruct the
audience as to “how much we need God in today’s society.”
The record contains at least fourteen instances in which Cruz
read Bible verses to the assembled district community during
the period set aside for Board-member comment.
D. Procedural Background
The Foundation brought this suit against the school
district and, in their official capacities, the (adult) Board
members, in November 2014. The Foundation alleged that
the Board’s policy and custom of opening board meetings
with prayer, as well as its policy and custom of including
Bible reading and preaching in meetings, violated the
Establishment Clause, the Fourteenth Amendment’s Equal
Protection Clause, and the California Constitution. It sought
declaratory and injunctive relief, as well as nominal
damages.
The district court granted partial summary judgment for
the Foundation on the Establishment Clause claim 6 and
enjoined the current Board members “in their official
representative capacities . . . from conducting, permitting or
otherwise endorsing school-sponsored prayer in Board
meetings.” The court also entered a declaratory judgment
6
The Foundation did not press its independent equal-protection
claim on its motion for summary judgment, and the district court granted
summary judgment solely on Establishment Clause grounds. The
Foundation has not pursued its equal-protection claim on appeal. Thus,
we do not consider it here.
FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD 15
that the prayer policy “and the policy and custom of reciting
prayers, Bible readings, and proselytizing at Board
meetings” violated the Establishment Clause. The district
court dismissed all claims against the Board and all state
claims against the Board members in their official capacities
as barred by the Eleventh Amendment. All claims against a
former Board member, who left the Board during the
pendency of the district court proceedings, were likewise
dismissed. The Board and Board members, including the
former Board member, appealed.
II. Standing
At the outset, while the Foundation does not challenge
appellate standing, we evaluate it pursuant to our “special
obligation to satisfy [ourselves] of [our] own jurisdiction
. . . .” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,
541 (1986) (citation and internal quotation marks omitted).
The Board and its former Board member lack standing to
appeal. As described above, all claims against them were
dismissed, and they lack any ongoing obligations pursuant
to the district court’s judgment. See United States v.
Windsor, 570 U.S. 744, 759–60 (2013). Nevertheless, the
remaining Board members possess appellate standing. 7 The
ongoing obligations placed upon the Board members by the
district court’s judgment give the current Board members a
7
Bender v. Williamsport Area School District, 475 U.S. 534 (1986),
is not inapposite. There, the Supreme Court concluded that a sole board
member did not have appellate standing to challenge a decision against
the board, where the board had voted not to challenge the district court’s
decision but where the individual board member wished to pursue the
appeal on the board’s behalf. Here, the Board joined in the Notice of
Appeal, and the district court enjoined the Board members in their
“individual representative capacities.” We are thus confident that this
case is materially distinguishable from Bender.
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“direct stake in the outcome of their appeal.” Hollingsworth
v. Perry, 570 U.S. 693, 705–06 (2013). Because at least one
party with appellate standing asserts each challenge to the
district court’s decision, we have jurisdiction to evaluate the
merits of each of the appellants’ claims. Horne v. Flores,
557 U.S. 433, 446–47 (2009).
III. The Establishment Clause Claim
We review, first, the Board members’ appeal of the
district court’s grant of summary judgment to the Foundation
on its Establishment Clause claim regarding the Board’s
policy and practice of starting the open portion of Board
meetings with an invocation. Our review of a district court’s
decision on cross-motions for summary judgment is de novo.
Trunk v. City of San Diego, 629 F.3d 1099, 1105 (9th Cir.
2011). We “view[] the evidence in the light most favorable
to . . . the nonmoving party” and evaluate “whether there are
any genuine issues of material fact and whether the district
court correctly applied the substantive law.” Id. (quoting
Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.
2004)).
The Board’s prayer policy and practice violate the
Establishment Clause. The invocations to start the open
portions of Board meetings are not within the legislative-
prayer tradition that allows certain types of prayer to open
legislative sessions. This is not the sort of solemnizing and
unifying prayer, directed at lawmakers themselves and
conducted before an audience of mature adults free from
coercive pressures to participate, that the legislative-prayer
tradition contemplates. See Marsh v. Chambers, 463 U.S.
783 (1983); Town of Greece v. Galloway, 134 S. Ct. 1811(2014). Instead, these prayers typically take place before
groups of schoolchildren whose attendance is not truly
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voluntary and whose relationship to school district officials,
including the Board, is not one of full parity.
Because prayer at the Chino Valley Board meeting falls
outside the legislative-prayer tradition, we apply the three-
pronged test first articulated in Lemon v. Kurtzman for
determining whether a governmental policy or action is an
impermissible establishment of religion. 403 U.S. 602, 612–
13 (1971); see also Newdow v. U.S. Congress, 328 F.3d 466,
487 (9th Cir. 2003). We hold that the Chino Valley Board’s
prayer policy lacks a secular legislative purpose and
therefore, under Lemon, violates the Establishment Clause.
Accordingly, we uphold the district court’s grant of
summary judgment to the Foundation on this claim.
A. The Legislative Prayer Tradition
The Board members argue that the Board’s prayer
practice falls within the legislative-prayer tradition
identified in Marsh v. Chambers, 463 U.S. 783 (1983), and
Town of Greece v. Galloway, 134 S. Ct. 1811 (2014). 8
8
The Board members do not identify any other tradition of historical
practice consonant with the Establishment Clause that might permit
prayer during school-board meetings. That is not surprising, given the
Establishment Clause jurisprudence proscribing prayer in school
settings. See, e.g., Engel v. Vitale, 370 U.S. 421 (1962) (holding the
recitation in school of a prayer composed by state officials a religious
exercise in violation of the Establishment Clause); Sch. Dist. of Abington
Twp., Pa. v. Schempp, 374 U.S. 203 (1963) (holding that recitation of the
Lord’s Prayer or Bible readings at the start of the school day violated the
Establishment Clause); Jaffree, 472 U.S. at 38 (holding a state statute
authorizing silence at the start of the school day for meditation or prayer
in violation of the Establishment Clause); Lee v. Weisman, 505 U.S. 577(1992) (holding that a prayer incorporated into a high-school graduation
ceremony violated the Establishment Clause); Santa Fe Indep. Sch. Dist.
v. Doe, 530 U.S. 290 (2000) (same, for prayer prior to a high-school
football game).
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Under the Marsh-Greece framework, “prayer practice [that]
fits within the tradition long followed in Congress and the
state legislatures” is not subject to typical Establishment
Clause analysis because such practice “was accepted by the
Framers and has withstood the critical scrutiny of time and
political change.” Town of Greece, 134 S. Ct. at 1819.
Accordingly, the Supreme Court has found prayer at the start
of state legislative sessions and town board meetings
commensurate with that tradition and not in violation of the
Establishment Clause. Marsh, 463 U.S. at 795; Town of
Greece, 134 S. Ct. at 1815.
Marsh and Town of Greece together identify certain
characteristics of setting and content that mark legislative
prayer. The prayer occurs “at the opening of legislative
sessions,” in order to “lend gravity to the occasion” and
“invite[] lawmakers to reflect upon shared ideals and
common ends before they embark on the fractious business
of governing.” Town of Greece, 134 S. Ct. at 1823. The
audience consists of “mature adults” who during the prayer
are “free to enter and leave with little comment and for any
number of reasons.” Id. at 1827 (citation and internal
quotation marks omitted); Marsh, 463 U.S. at 793(emphasizing that “the individual claiming injury . . . is an
adult”); see also Schempp, 374 U.S. at 299–300 (Brennan,
J., concurring) (distinguishing legislative prayer from
prayers in schools on the ground that “[l]egislators . . . are
mature adults who may presumably absent themselves from
such public and ceremonial exercises without incurring any
penalty, direct or indirect”). The Court has distinguished the
atmosphere in which legislative prayer occurs from that of a
school function in which district personnel “retain a high
degree of control over” the event. Lee v. Weisman, 505 U.S.
577, 597 (1992); see also Town of Greece, 134 S. Ct. at 1827(distinguishing Lee, 505 U.S. at 592–94, which held prayer
at a high school graduation in violation of the Establishment
FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD 19
Clause, as involving an event in which “school authorities
maintained close supervision over the conduct of the
students and the substance of the ceremony”). The
legislative prayer itself is a “symbolic expression,” Town of
Greece, 134 S. Ct. at 1818, not a time “to proselytize or
advance any one, or to disparage any other, faith or belief,”
id. at 1823 (quoting Marsh, 463 U.S. at 794–95).
Three other circuits have previously evaluated whether
prayer during the meeting of a public school board falls
within the Marsh-Greece legislative-prayer tradition. The
Third and Sixth Circuits both have held legislative-prayer
analysis inapplicable to prayer practices at school-board
meetings. Doe v. Indian River Sch. Dist., 653 F.3d 256, 275
(3d Cir. 2011), cert. denied, 565 U.S. 1157 (2012); Coles ex
rel. Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 371 (6th
Cir. 1999). 9 While the Fifth Circuit more recently held that
a school board’s prayer practice constituted legislative
prayer consistent with the terms of the Marsh-Greece
exception, it distinguished Indian River and Coles on the
ground that, in both those cases, a student representative sat
on the school board. Am. Humanist Ass’n v. McCarty,
851 F.3d 521, 528 (5th Cir. 2017), cert. denied, 138 S. Ct.
470. 10 The Fifth Circuit too, then, has suggested that where
a student is a board member, prayer at board meetings may
9
Although Coles and Indian River predated Town of Greece, they
are consistent in reasoning with that later decision.
10
In addition, McCarty featured student-led invocations, as opposed
to the Chino Valley Board’s practice, as a policy matter, of selecting a
religious leader to be the prayer-giver. See 851 F.3d at 523–25.
20 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
present constitutional difficulties. Here, there is a student
representative at every meeting. 11
In evaluating whether the identified historical tradition
of legislative prayer does indeed encompass a particular
prayer practice, we must undertake a “fact-sensitive”
inquiry, in which we take into account “the setting in which
the prayer arises and the audience to whom it is directed,”
the content of the prayer, and “the backdrop of historical
practice.” Town of Greece, 134 S. Ct. at 1825. 12 This
approach is consistent with the analysis undertaken by each
of the three circuits that have previously addressed prayer at
school-board meetings. See McCarty, 851 F.3d at 528 n.21
(emphasizing the “delicate and fact-sensitive” nature of
Establishment Clause jurisprudence (quoting Lee, 505 U.S.
at 597)); Indian River Sch. Dist., 653 F.3d at 265 (examining
the “environment [in which] the School Board delivers its
prayers”); Coles, 171 F.3d at 382 (considering “what
actually takes place at meetings of the school board”). Upon
undertaking this analysis, we find that the practice of prayer
at Chino Valley Board meetings does not “fit[] within the
tradition long followed in Congress and the state
11
The Board’s citation to the unpublished Bacus v. Palo Verde
Unified School District Board of Education, 52 F. App’x 355 (9th Cir.
2002) is misplaced, as we declined to decide in that case whether the
legislative-prayer exception could apply to prayer at a school-board
meeting.
12
While the specific quoted language is from a portion of the
opinion joined by only three Justices, the fact-sensitive nature of the
Establishment Clause inquiry generally and Marsh-Greece analysis in
particular is not in doubt. The majority opinion in Town of Greece
engaged in such analysis, evaluating “the prayer opportunity as a whole.”
134 S. Ct. at 1824. Additionally, no opinion in the case called into
question a fact-specific approach. Id. at 1838 (Breyer, J., dissenting)
(“As we all recognize, this is a ‘fact-sensitive’ case.”).
FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD 21
legislatures.” See Town of Greece, 134 S. Ct. at 1819. The
audience and timing of the prayers, as well as the religious
preaching at the Board meetings, diverge from the
legislative-prayer tradition; and the history of the legislative-
prayer tradition is inapplicable to a public school board. We
therefore conclude that the Marsh-Greece exception does
not control or govern our analysis.
B. No Legislative Prayer Exception
The setting of legislative prayers—“at the opening of
legislative sessions,” where the audience comprises “mature
adults” who are “free to enter and leave with little comment
and for any number of reasons”—only dimly resembles that
of Chino Valley Board meetings. Town of Greece, 134 S.
Ct. at 1823, 1827 (citation and internal quotation marks
omitted). The Board’s meetings are not solely a venue for
policymaking, they are also a site of academic and
extracurricular activity and an adjudicative forum for student
discipline. Consequently, many members of the audience—
and active participants in the meetings—are children and
adolescents whose attendance is not truly voluntary and
whose relationship with the Board is unequal. Unlike a
session of Congress or a state legislature, or a meeting of a
town board, the Chino Valley Board meetings function as
extensions of the educational experience of the district’s
public schools. The presence of large numbers of children
and adolescents, in a setting under the control of public-
school authorities, is inconsonant with the legislative-prayer
tradition.
Both Marsh and Town of Greece emphasize that the
audience for the prayers at issue consisted of adults—“adult
citizens, firm in their own beliefs,” who consequently could
“tolerate and perhaps appreciate” legislative prayer. Town
of Greece, 134 S. Ct. at 1823; see also Marsh, 463 U.S. at22 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
792. As Town of Greece explained, “[a]dults often
encounter”—and, our law presumes, are well-equipped to
handle—“speech they find disagreeable.” 134 S. Ct. at
1826. For adults, legislative prayer does not pose an
insurmountable constitutional problem, because adults
“presumably are not readily susceptible to religious
indoctrination or peer pressure.” Id. at 1827 (quoting Marsh,
463 U.S. at 792).
We have always, though, been careful to distinguish the
special Establishment Clause difficulty posed by requiring
children and adolescents to make this choice—particularly
in a school setting. See, e.g., Lee, 505 U.S. at 593; Santa Fe
Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310–13 (2000);
Collins v. Chandler Unified Sch. Dist., 644 F.2d 759, 762
(9th Cir. 1981); Cole v. Oroville Union High Sch. Dist.,
228 F.3d 1092, 1104 (9th Cir. 2000); see also Edwards v.
Aguillard, 482 U.S. 578, 583–84 (1987) (“The Court has
been particularly vigilant in monitoring compliance with the
Establishment Clause in elementary and secondary
schools.”).
Lee makes clear that we draw this distinction because we
recognize that minors’ beliefs and actions are often more
vulnerable to outside influence. 505 U.S. at 593–94. Marsh
contrasted the adult plaintiff’s relative lack of vulnerability
to potential coercion with children’s susceptibility to
indoctrination and peer pressure. 463 U.S. at 792 (relying
on Establishment Clause analysis, in prior cases, predicated
on children’s vulnerability to coercion). 13 Because
13
As to those cases, Tilton v. Richardson, 403 U.S. 672 (1971),
found significant that college students were “less impressionable and less
susceptible to religious indoctrination” than primary and secondary
students, in the course of evaluating the constitutionality of federal aid
to colleges and universities connected to religious institutions. Id. at 686.
FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD 23
children’s “experience is limited,” their “beliefs
consequently are the function of environment as much as of
free and voluntary choice.” Sch. Dist. of City of Grand
Rapids v. Ball, 473 U.S. 373, 390 (1985), overruled on other
grounds by Agostini v. Felton, 521 U.S. 203 (1997).
Even for older adolescents, “our history is replete with
laws and judicial recognition that children cannot be viewed
simply as miniature adults.” J.D.B. v. North Carolina,
564 U.S. 261, 274 (2011) (internal quotation marks
omitted). We recognize, in a variety of legal contexts,
children’s and adolescents’ greater susceptibility to peer
pressure and other pressures to conform to social norms and
adult expectations. See, e.g., id. at 271–72; Roper v.
Simmons, 543 U.S. 551, 569 (2005).
The audience for the prayers at issue in this case differs
markedly from that at the legislative sessions in Marsh and
Town of Greece in that many of the attendees at Chino
Valley Board meetings are adolescents and children—some
as young as second grade. The presence of these children is
integral to the meeting: they perform for the Board,
assembled audience, and television viewers; they receive
awards; and one among their number sits on the Board and
participates in the Board’s deliberative process. This
audience, unlike the audience in the legislative-prayer cases,
therefore implicates the concerns with mimicry and coercive
pressure that have led us to “be[] particularly vigilant in
monitoring compliance with the Establishment Clause.”
Aguillard, 482 U.S. at 583–84. Government-sponsored
Justice Brennan’s concurrence in School District of Abington Township,
Pennsylvania v. Schempp, 374 U.S. 203 (1963), emphasized child
development experts’ understanding that “children are disinclined at this
age to step out of line or to flout peer-group norms,” particularly “where
important group norms and values are involved.” Id. at 290 & n.69.
24 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
prayer in this context therefore poses a greater Establishment
Clause problem than prayer at the legislative sessions in
Marsh and Town of Greece.
The prayer audience at Chino Valley Board meetings
differs from that at legislative sessions not only in age but
also in its relationship with the policy-making body. The
nature of the Board’s mandate, and the Board’s relationship
to the population whom it serves, are dissimilar from the
function of Congress, a state legislature, or a town board and
the relationships of those bodies to their constituents.
Unlike legislative entities for which legislative prayer is
constitutionally permissible, school districts—and by
extension, school boards—exercise control and authority
over the student population. C.A. v. William S. Hart Union
High Sch. Dist., 270 P.3d 699, 704 (Cal. 2012) (“A school
district and its employees have a special relationship with the
district’s pupils” in part due to “the comprehensive control
over students exercised by school personnel.” (citation and
internal quotation marks omitted)). California law provides:
“Every school district shall be under the control of a board
of school trustees or a board of education.” Cal. Educ. Code
§ 35010 (emphasis added). The school board’s power
extends to “initiat[ing] and carry[ing] on any program [or]
activity” or “otherwise act[ing] in any manner which is not
in conflict with or inconsistent with” law or “the purposes
for which school districts are established.” Id. § 35160.
In California, any “employee of a school district”—that
is, a person employed by the Board—may exercise over
students “the amount of physical control reasonably
necessary . . . to maintain proper and appropriate conditions
conducive to learning.” Cal. Educ. Code § 44807. Beyond
direct physical control, the school district also holds a more
subtle power over the students’ academic and professional
FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD 25
futures, which manifests itself in the program at Board
meetings. For example, the Board’s power to suspend and
expel students is a power to determine students’ continued
membership in the district community. The Board also
waives high school graduation requirements in specific
cases, and bestows recognition on particular district
students. The student board member’s authority is subject
to the continued goodwill of the Board: under Board bylaws,
the Board delegates authority to the student, and any
authority the student has is “an exercise in student
responsibilities.” Unlike the legislative sessions in Marsh
and Town of Greece, where constituents may replace
legislators and need not fear their exercise of comprehensive
control, students do not enjoy such autonomy.
Moreover, legislators and constituents hold equal status
as adult members of the political community, which means
that in the ordinary course of events constituents may feel
free to exit or voice dissent in response to a prayer at a
legislative session. Minors in the school district essentially
lack those options. For student attendees, then, the school-
board meetings in which the prayer occurs, and the
relationship between students and the Board, lack the
democratic hallmarks present in legislative sessions and in
constituents’ relationship with the legislature.
Further, academic and social pressures make students’
presence at the Board meetings not meaningfully voluntary.
Children attend the Chino Valley Board meetings pursuant
to academic or extracurricular obligations. The student
representative on the Board, for instance, attends pursuant to
her duty to “provide continuing input for board
26 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
deliberations.” 14 Student presentations at meetings—such
as presentations by sixth-grade students reading chapters
from their autobiographies—expand on in-class educational
activities.
Neither Marsh nor Town of Greece implicated the
audience’s access to, and experience of, a public-school
education. A requirement that a child choose whether to
participate in a religious exercise or to dissent in order to
participate in a complete educational experience, on par with
that of her peers, implicates graver Establishment Clause
considerations than the prayers at public meetings found to
be within the Marsh-Greece tradition. In sum, the nature of
the audience at the Chino Valley Board meetings, and the
nature of its relationship with the governmental entity
making policy, are very different from those within the
Marsh-Greece legislative-prayer tradition.
Beyond the factors specific to the Chino Valley Board
meetings, prayer at school-board meetings cannot be
understood as part of the historical tradition of legislative
prayer identified in Marsh and Town of Greece. The history
of public schools in the United States, and their intersection
with the Establishment Clause, does not support the
application of the Marsh-Greece exception to the practices
14
The Board asserts that the student representative is not required to
attend—citing instances when the student representative missed
meetings or left early. This overly formalistic understanding ignores the
nature of the student representative’s duties, which require her to provide
input to the Board. The fact that the district does not physically force the
student representative to be present at every meeting does not mean that
she could miss all meetings and meaningfully fulfill her responsibilities
as a student representative to the Board. Because she cannot miss
meetings while continuing to function in her role, her attendance
“borders on compulsory.” See Indian River, 653 F.3d at 277–78.
FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD 27
of public school boards, including school-board prayer.
Marsh-Greece analysis applies to “a practice that was
accepted by the Framers” and that, consequently, was
historically understood as consonant with the Establishment
Clause. Town of Greece, 134 S. Ct. at 1819.
At the time of the Framing, however, “free public
education was virtually nonexistent.” Aguillard, 482 U.S. at583 n.4. The Bill of Rights had not yet been incorporated,
nor had its instrument of incorporation even been adopted.
The Framers consequently could not have viewed the
Establishment Clause as relevant to local schools’ and
school boards’ actions. See Everson v. Bd. of Educ. of Ewing
Twp., 330 U.S. 1, 6 (1947). “Even at the time of adoption of
the Fourteenth Amendment, education in Southern States
was still primarily in private hands, and the movement
toward free public schools supported by general taxation had
not taken hold.” Jaffree, 472 U.S. at 80 (O’Connor, J.,
concurring).
Thus, Marsh’s “historical approach is not useful in
determining the proper roles of church and state in public
schools.” Aguillard, 482 U.S. at 583 n.4. As Aguillard
recognizes, historical practice cannot be “accepted by the
Framers,” Town of Greece, 134 S. Ct. at 1819, when it did
not exist at that time. For this reason, the Third and Sixth
Circuits have followed the logic of Aguillard and have held
that a historical approach sheds no light on whether school
boards’ actions violate the Establishment Clause. Indian
River Sch. Dist., 653 F.3d at 281; Coles, 171 F.3d at 381(finding “the unique tradition articulated in Marsh
inapposite” in the context of “the school board . . . an
integral part of the public school system”); see also Smith v.
Jefferson Cty. Bd. of Sch. Comm’rs, 788 F.3d 580, 588–89
(6th Cir. 2015) (reaffirming, post-Town of Greece, that “the
pure historical approach is of limited utility” in the context
28 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
of the public schools and applying ordinary Establishment
Clause tests to a county school board’s decision to abolish
an alternative school and instead contract for student
education in a program at a private religious school). 15 We
follow the same approach here and decline to apply the
Marsh-Greece historical framework for legislative prayer to
an institution essentially unknown to the Framers—a public-
school board. We can make no inference as to whether the
Framers would have approved of prayer at school-board
meetings in any context, much less in the factual
circumstances at issue here, given the lack of free universal
public education in the late 1700s.
C. The Lemon v. Kurtzman Analysis
Instead of the legislative-prayer analysis, we apply the
three-pronged Establishment Clause test articulated in
Lemon v. Kurtzman, 403 U.S. 602 (1971). The Chino Valley
Board’s prayer policy and practice fails the Lemon test and
is therefore unconstitutional.
The Lemon test remains the dominant mode of
Establishment Clause analysis. Santa Monica Nativity
Scenes Comm. v. City of Santa Monica, 784 F.3d 1286, 1299
n.7 (9th Cir. 2015); see also, e.g., Johnson v. Poway Unified
Sch. Dist., 658 F.3d 954, 958–59, 971–75 (9th Cir. 2011).
15
See also Mellen v. Bunting, 327 F.3d 355, 370 (4th Cir. 2003)
(declining to adopt the legislative-prayer approach in analyzing a pre-
supper prayer at a state-run military college, in part on the ground that
“public universities and military colleges . . . did not exist when the Bill
of Rights was adopted”); Jager v. Douglas Cty. Sch. Dist., 862 F.2d 824,
828–29 (11th Cir. 1989) (citing Aguillard in declining to apply historical
analysis to “invocations at school-sponsored football games . . .
nonexistent when the Constitution was adopted” and instead using the
Lemon test).
FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD 29
Under that test, a governmental practice “[f]irst . . . must
have a secular legislative purpose; second, its principal or
primary effect must be one that neither advances nor inhibits
religion; finally . . . [it] must not foster ‘an excessive
entanglement with religion.’” Lemon, 403 U.S. at 612–13
(internal citation omitted) (quoting Walz v. Tax Comm’n,
397 U.S. 664 (1970)). “Context is critical when evaluating
the government’s conduct.” Johnson, 658 F.3d at 972.
Our Lemon analysis is sequential. That is, if the action
fails the first prong of Lemon, we need not analyze prongs
two and three. Aguillard, 482 U.S. at 583–85. We find that
the Board’s prayer policy and practice lacks a secular
legislative purpose and therefore, under Lemon, violates the
Establishment Clause.
The requirement of neutrality among religions, and
“between religion and nonreligion,” is at the heart of our
Establishment Clause. See McCreary Cty. v. Am. Civil
Liberties Union of Ky., 545 U.S. 844, 860 (2005).
Accordingly, government action violates the first prong of
Lemon when the government’s predominant purpose is to
advance or favor religion. Id.; accord Trunk v. City of San
Diego, 629 F.3d 1099, 1107 (9th Cir. 2011). A secular
purpose for the action may not be “merely secondary to a
religious objective,” and it must “be genuine, not a sham.”
McCreary Cty., 545 U.S. at 864. We evaluate purpose from
the standpoint of an observer cognizant “of the traditional
external signs that show up in the text, legislative history,
and implementation of the statute, or comparable official
act.” Id. at 862 (internal quotation marks and citation
omitted). As such an observer, we possess a “reasonable
memor[y],” cognizant of the “context in which [the] policy
arose.” Id. at 866 (citation omitted).
30 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
The Board’s prayer policy provides two purported
secular purposes: “solemnization” of the Board meetings,
and “acknowledg[ing] and express[ing] the Board of
Education’s respect for the diversity of religious
denominations and faiths represented and practiced” among
the district’s residents. Of these two purposes, the Board
proffers the solemnization rationale as the key motivator.
The first paragraph of the prayer policy states that it exists
“in order to solemnize proceedings of the Board of
Education.” Only at the very end, in stating that the policy
“is not intended . . . to affiliate the Board of Education with,
nor express the Board of Education’s preference for, any
faith or religious denomination,” does the policy express the
second goal of acknowledging religious diversity.
Nevertheless, we examine both, with sensitivity to the
interplay among expressed purposes.
In evaluating purpose, we regularly take into account the
statements of governmental officials involved in a policy’s
enactment. See, e.g., Aguillard, 482 U.S. at 591–93; Jaffree,
472 U.S. at 64–65 (Powell, J., concurring). As we examine
the Board’s proffered purposes for the policy in the context
of litigation, we must keep in mind that, shortly after the
adoption of the policy, a Board member publicly, at a Board
meeting, described the Board’s goal as the furtherance of
Christianity. An elected official’s public statements directly
contradicting the purposes that a policy or bill expresses on
its face call into question those expressed purposes. See
McCreary Cty., 545 U.S. at 863–64.
In light of the history of Christian prayer at Board
meetings, endorsed by Board members, the prayer policy’s
provision for a solemnizing invocation does not constitute a
permissible secular purpose. In Santa Fe Independent
School District v. Doe, 530 U.S. 290 (2000), the Supreme
Court found that the school district’s purported secular
FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD 31
purposes for the student-led invocation at the start of high-
school football games—solemnization and free
expression—did not pass muster under Lemon’s first prong.
Id. at 310–15. In its evaluation, the Court looked in part to
the means-end fit between the policy’s expressed purposes
and its “approval of only one specific kind of message, an
‘invocation.’” Id. at 309. Because other messages that were
not invocations could equally well serve the expressed
purposes, the policy’s restriction of the message to an
invocation made those expressed purposes suspect.
Here, too, Chino Valley’s choice to restrict the opening
message to an invocation belies the expressed purposes of
the policy. There is no secular reason to limit the
solemnization to prayers or, relatedly, to have a
presupposition in the policy that the solemnizers will be
religious leaders. Rather, these aspects of the policy point to
a religious purpose.
Next, the Board’s second expressed purpose of
demonstrating respect for religious diversity also fails the
secularity test for multiple reasons. First, the means-end fit
is off in that the policy does not capture all the religious
diversity in Chino Valley. The policy limits invited prayer-
givers to religious leaders with established religious
communities within the district’s boundaries. However,
there are people of minority faiths living within the borders
of the Chino Valley Unified School District whose faith
lacks a sufficient critical mass to sustain an established
community within the district’s borders. For instance,
roughly two percent of California’s population is Buddhist,
two percent is Jewish, one percent is Mormon, one percent
is Orthodox Christian, and one percent belong to religions
besides Buddhism, Christianity, Islam, Hinduism, or
32 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
Judaism.16 But, there are no religious communities from
these traditions on the Board’s list of eligible
congregations. 17 Far from highlighting the full range of
religious diversity and beliefs, the invocation policy
reinforces the dominance of particular religious traditions.
Second, the purpose of respecting religious diversity, to
the extent that it does not encompass nonreligious belief
systems and their diversity, is itself constitutionally suspect.
Atheists and agnostics comprise four percent and five
percent of the California population, respectively. 18 Neither
the purpose of respecting religious diversity nor the means
of doing so via prayer acknowledges or respects the beliefs
of nonreligious citizens in the district. Santa Fe ISD,
530 U.S. at 309–10. Hence, Chino Valley’s failure to
acknowledge nonreligious beliefs undermines the validity of
the second putative secular purpose for its prayer policy.
While the lack of a secular purpose is sufficient to find
the Board’s policy and practice unconstitutional, the prayers
in this appeal also fail the second and third prongs of the
Lemon test. See 403 U.S. at 612–13. Under the second
prong, the principal or primary effect of the prayers at the
16
Pew Research Center, 2014 Religious Landscape Study: Adults in
California, http://www.pewforum.org/religious-landscape-study/state/c
alifornia/.
17
The school district’s compiled list of congregations does not
explicitly identify the religious affiliation of each community. Four
congregations on the list are highlighted, all of which are non-Christian:
three are Muslim and one is Hindu. The names of all other congregations
suggest that they are various Christian denominations; none are
identified as Orthodox or pertaining to the Church of Latter-Day Saints.
18
Pew Research Center, 2014 Religious Landscape Study: Adults in
California.
FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD 33
Board meetings cannot be said to “neither advance[] nor
inhibit[] religion.” Id. Instead, the prayers frequently
advanced religion in general and Christianity in particular.
Under the third prong, the Board’s policy and practice
fostered an “excessive government entanglement” with
religion. Id. There are many ways besides prayer both to
acknowledge the community’s religious diversity and to
solemnize the Board meetings. Readings about the import
of religious diversity, the pluralistic nature of our society, or
leaders from various religious (and explicitly nonreligious)
traditions could provide for serious reflection, without
conveying an explicitly religious message or performing a
religious activity during the Board meeting. See Santa Fe
ISD, 530 U.S. at 306. Hence, the means-end fit here is
skewed in the same way that it was in Santa Fe ISD: an
invocation is not necessary to accomplish these purposes. 19
In sum, the existence of equally available secular means
of accomplishing the Board’s stated purposes, coupled with
the history of Christian prayer, demonstrates that the prayer
policy’s purpose is predominantly religious in violation of
the Establishment Clause.
IV. The Injunction
The district court enjoined the Board members “from
conducting, permitting or otherwise endorsing school-
sponsored prayer in Board meetings.” The Board argues that
this portion of the ordered relief is overbroad because it
19
The Board argues that only a minority—two of the five Board
members who adopted the prayer policy—engaged in overtly religious
statements at Board meetings. However, a third Board member, at the
time of the policy’s adoption, prayed at meetings. Such public prayer is
a “religious exercise.” Lee, 505 U.S. at 586. Together, those three
members constituted a majority of the Board.
34 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
requires the Board members to censor speech protected by
the First Amendment. Its concern lies, particularly, with
speech by members of the public during the public-comment
portion of the Board meetings. The Board is in error: the
judgment does not implicate protected speech and,
consequently, does not give rise to First Amendment
concerns.
“There is no doubt that compliance with the
Establishment Clause is a state interest sufficiently
compelling to justify content-based restrictions on speech,”
including in public fora. Capitol Square Review & Advisory
Bd. v. Pinette, 515 U.S. 753, 761–62 (1995). Accordingly,
we need not reach the question whether the public-comment
portion of the Board meetings constitutes a public forum, a
designated public forum, or, as the Board characterizes it, a
limited public forum. The injunction satisfies the more
exacting strict-scrutiny standard for a public or designated
public forum. See Hopper v. City of Pasco, 241 F.3d 1067,
1074 (9th Cir. 2001). It “is narrowly drawn to achieve” a
“compelling state interest.” Id. The only speech that it
requires the Board members to refrain from engaging in or
permitting others to engage in is speech that would cause the
district to violate the Establishment Clause. Under state law,
the Board has “control” of the school district. Cal. Educ.
Code § 35010. Consequently, the Board members are
appropriate actors to enjoin in order to bar school-sponsored
prayer—including at the Board meeting.
Moreover, on at least one occasion, a Board member has
given the opening prayer during the public-comment period
of the meeting. It is therefore appropriate for the injunction
to restrain Board members from acting during the public-
comment period to further school-sponsored prayer, and to
prevent others from giving the school’s imprimatur to prayer
FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD 35
at that time. 20 Although it is a content-based restriction on
speech, the injunction is not overbroad because it is limited
to restricting only speech that constitutes a governmental
establishment of religion. Such restriction does not violate
but rather upholds the First Amendment.
V. Request to Vacate Part of the Judgment
The Board’s notice of appeal encompasses the district
court’s judgment in its entirety. We need not reach the
Board’s request to vacate the district court’s judgment as it
pertains to the Board’s policy and practice of Bible reading,
preaching, and prayer outside of the opening prayer because
the Board has chosen not to argue the issue on appeal. 21 This
is waiver—the “intentional relinquishment or abandonment
of a known right or privilege.” Arizona v. Tohono O’odham
Nation, 818 F.3d 549, 559 (9th Cir. 2016). It is well
established that an appellant’s failure to argue an issue in the
opening brief, much less on appeal more generally, waives
that issue, with exceptions not relevant here. See, e.g.,
Maloney v. T3Media, Inc., 853 F.3d 1004, 1019 (9th Cir.
2017) (issue not argued in briefs waived). 22
20
For example, as the Foundation notes, the injunction prevents the
creation of a de facto opening invocation during the public-comment
period.
21
We grant the Board’s motion for judicial notice as to Board Bylaw
9010.5, adopted November 3, 2016. The accuracy of the bylaw is
undisputed.
22
We may choose to review an issue notwithstanding waiver under
certain circumstances, including where good cause is shown, where
failure to review “would result in manifest injustice,” where the
appellee’s brief raises the issue, and where failure to raise the issue did
not prejudice the appellee. See United States v. Ullah, 976 F.2d 509, 514
36 FREEDOM FROM RELIGION FOUND. V. CHINO VALLEY USD
The policy and practice of prayer at Chino Valley Board
meetings violates the Establishment Clause. The scope of
injunctive relief is appropriate, because it merely prohibits
governmental action that violates the Constitution and does
not infringe upon constitutional rights.
AFFIRMED.
(9th Cir. 1992) (citation omitted). The Board’s appeal implicates none
of these situations.