NEW ORLEANS The 5th U.S. Circuit Court of Appeals yesterday vacated a lower court ruling against the Tangipahoa Parish School Board over prayers at board meetings, saying the plaintiffs didn't show they had standing to file the suit.
The appeals court, in an 8-7 split decision, also sent the case back to the lower court with instructions to dismiss the case brought by the American Civil Liberties Union on behalf of two public school students and their father.
Ron Wilson, an attorney who represented the plaintiffs, said the appeals court ruling means "the case is basically over."
Writing for the majority in Doe v. Tangipahoa Parish School Board, Chief Judge Edith Jones found that the court record had no evidence that the plaintiffs actually were exposed to the meeting invocations to claim a harm under the First Amendment's establishment clause.
Although standing had not been an issue, attorneys for the school board raised the issue in their brief to the appeals court.
"It is not this court's fault that the connection between their attendance and allegedly unconstitutional activity is not made in the record," the majority said.
"Without the requisite specifics, this court would be speculating upon the facts. This is something we cannot do, particularly in the standing context, where the facts must be proven, not merely asserted or inferred. ... To find lack of standing at this late stage no doubt poses an inconvenience for the parties. On the other hand, it spares this court from issuing a largely hypothetically-based ruling on issues of broad importance to deliberative public bodies in this circuit and beyond."
Schools Superintendent Mark Kolwe, in a statement, said he was "very pleased with the outcome" but declined further comment.
Kolwe said the board would meet with its attorneys Aug. 7 to discuss the impact of the ruling and to get advice on how to proceed with regard to prayer at board meetings in the future.
Wilson said he believed the 5th Circuit "used a weak argument on standing" to sidestep the constitutional issue.
"I think the court was looking for a reason not to decide this issue. That's unfortunate," he said.
"We wanted the court to make a decision as to whether or not prayer at school-board meetings, invocations at school-board meetings, were unconstitutional. The court completely avoided that issue. If you can't go to a court to get a determination on the issues, where can you go? I'm disappointed. Win, lose or draw, you want a determination on the merits."
Judge Fortunato P. Benavides disagreed with the majority's opinion that there was no proof in the record that the family was ever exposed to, and thus injured by, a prayer offered at a school-board meeting.
"The Does plainly alleged that they had attended board meetings and that they had witnessed the invocations offered there, and the pretrial order reveals that the board conceded this fact," Benavides said. "Yet the majority sidesteps this record evidence, choosing instead to redraw the parameters of this dispute and assert that standing is now lacking. I disagree."
He said to dismiss the case now for lack of standing "creates a contested fact question where the parties and the district judge agreed there was not one."
Benavides added, "The record bears out that the Does attended School Board meetings at which payers were offered. That exposure gave them standing to bring this suit then, and it gives them standing to maintain it now. They are entitled to a decision on the merits, and we should give them one."
The appeals court judges heard the case en banc in May after a three-judge panel provided a divided decision in the dispute for which both sides wanted clarity.
The ACLU sued the school board in October 2003. Another lawsuit over prayer at a Tangipahoa Parish high school graduation ceremony is pending at the district level.
U.S. District Judge Ginger Berrigan previously found that sectarian prayers at school-board meetings are unconstitutional.