Divided 5th Circuit panel opens door for nonsectarian school-board prayer

By The Associated Press

Editor’s note: On Feb. 9, 2007, the full 5th Circuit agreed to rehear the case. Oral arguments are scheduled for May 22.

NEW ORLEANS — A divided federal appeals court panel has issued a ruling that may allow the Tangipahoa Parish School Board to begin its meetings with a nonsectarian prayer, and opened up a new chapter in a long dispute between school officials and the American Civil Liberties Union.

The three-judge panel of the 5th U.S. Circuit Court of Appeals ruled Dec. 15 in Doe v. Tangipahoa Parish School Board that the school board should be treated like other elected bodies, which are allowed to invoke nonsectarian and non-proselytizing prayers at their meetings.

But the panel upheld a district judge's view that the Tangipahoa board's previous practice of prayer violated the constitutional ban on government promotion of religion. Since that ruling in February 2005, the school board has not opened its meetings with a devotional.

"In so holding, this opinion takes no position on whether another form of prayer is permissible at Board meetings," U.S. Judge Rhesa Barksdale wrote for the majority. "Instead, it holds only that prayers of the type included in the stipulations do not pass constitutional muster."

The panel sent the case back to U.S. Judge Helen G. Berrigan, who had barred the school board from opening its meetings with prayers. The appellate court told Berrigan to amend her injunction considering the new ruling.

The ACLU originally brought suit over prayers not just at board meetings, but at high school football games. That portion of the suit was settled in 2004 with prayers being dropped at games and other school events.

The case has become a hotly contested political issue in Louisiana. Shortly before Hurricane Katrina hit on Aug. 29, 2005, Gov. Kathleen Blanco weighed in with a friend-of-the-court brief urging the appeals court to uphold opening prayers. The governor argued that Berrigan overreached in banning the kickoff devotionals.

Blanco argued that school boards are not like schools, but are simply government bodies, like legislatures, where an opening prayer is permitted.

Berrigan ruled that school boards are closely identified with the schools they govern, and should be subject to the same rules.

On Dec. 16, the ACLU and school board officials were assessing the significance of the ruling, which was issued late on Dec. 15 by the New Orleans-based appellate court.

"If it is like it seems, you can pray, but only generally," said Sandra Bailey-Simmons, the school board president. "It looks like censorship."

She said the majority of people in Tangipahoa are Christians and want the board to be able to invoke Christianity at its meetings. She said she was interested in appealing the decision.

Likewise, Joe Cook, the executive director of the Louisiana branch of the ACLU, said the ACLU might seek a rehearing or appeal.

He said the panel "avoided dealing with the central issue of whether school boards in general" should be allowed to hold prayers. The ACLU has argued that school boards are not like legislative bodies because they are an extension of the school system they oversee.

"How can they do something that they don't allow anywhere else in the school system?" Cook said. "They're supposed to be role models for the students, teachers and administrators in the system."