9th Circuit Determines Ceremonial Prayer During School Board Meeting Violates Establishment Clause


In a recent decision,1 the United States Court of Appeals for the 9th Circuit held that a school district’s policy of opening board meetings with prayer violates the Establishment Clause of the United States Constitution. The 9th Circuit held that unlike ceremonial prayers before legislative bodies that are generally constitutional, such prayers in school board meetings where students are present must withstand the exacting Lemon v. Kurtzman test which requires that the prayer serve a secular purpose. Since the 9th Circuit found that no such purpose was served by the prayers offered at the Chino Valley Unified School District board meetings, the policy violates the Establishment Clause.

This decision does not impact the legality of ceremonial prayers offered at city council meetings because the decision relied heavily on the unique circumstances of a school board meeting where children are normally present. The Court explicitly recognized the validity of prayers offered at city council legislative sessions as set forth in Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).


The Chino Valley Unified School District Board of Education (“District”) adopted a policy whereby its board meetings included a public prayer, usually offered by a member of the local clergy. While not part of a formal District policy, in the course of Board meetings, “preaching to the district community and biblical readings by the Board members were also common.” In response, the Freedom from Religion Foundation (“Plaintiff”) filed suit against the District to enjoin the District from engaging in these practices, and prevailed at the district court level. The District appealed, and the 9th Circuit affirmed.

The Establishment Clause

The Establishment Clause of the First Amendment to the United States Constitution serves to (1) protect individual freedom of worship, and (2) to ensure that the government does not make religious belief relevant to an individual’s membership or standing in the political community. Courts are especially attentive to Establishment Clause concerns raised by religious exercise in the public school context because children are just beginning to develop their own belief systems and because children absorb the lessons of adults.

The 9th Circuit noted that “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.” In other words, ceremonial prayers to start legislative sessions of Congress, state legislatures, and city councils are constitutional due to their long-standing tradition in our country since before the First Amendment was adopted.

However, the same cannot be said for school board meetings, which didn’t exist at the time the First Amendment was adopted. In affirming the district court’s determination that the District’s policy violates the Establishment clause, the 9th Circuit noted crucial differences between school board meetings and traditional legislative sessions. The purpose of these prayers in traditional legislative sessions is to “lend gravity to the occasion” and to “invite lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing.” The audience in these traditional legislative sessions consists of mature adults who can come and go as they please, in stark contrast to the children who regularly attend school board meetings as an extension of the educational experience provided in the classroom. The 9th Circuit found:

“[T]he 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. Instead, these prayers typically take place before groups of schoolchildren whose attendance is not truly voluntary and whose relationship to school district officials, including the Board, is not one of full parity.”

Accordingly, the practice of prayer during a school board meeting must satisfy the more exacting Lemon v. Kurtzman2 test of whether government action violates the Establishment Clause. In order to comply with the Establishment Cause under Lemon, the challenged government action must (1) have a secular purpose, (2) not primarily inhibit nor advance religion, and (3) not foster an unnecessary entanglement with religion. The 9th Circuit rejected the District’s purported secular purposes of the prayers to “solemnize” board meetings and to “express the Board of Education’s respect for the diversity of religious denominations and faiths[.]” Among other things, the Court found that there is no secular reason to restrict the opening message of board meetings to a prayer if its purpose is to solemnize the meeting, particularly where board members were on record making statements that the purpose of the policy is to further Christianity.


The authority for cities to hold legislative prayer at council meetings remains undisturbed by this decision. Rather, it represents a strong caution for school districts and clarifies that within the 9th Circuit, challenges to prayers at board meetings will be analyzed under the Lemon analysis for compliance with the Establishment Clause.

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1 Freedom from Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d 1132 ( 2018).
2 Lemon v. Kurtzman, 403 U.S. 602 (1971).