Freedom from Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ.

896 F.3d 1132

FREEDOM FROM RELIGION FOUNDATION, INC., Plaintiff-Appellee,

v.CHINO VALLEY UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION; 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.

No. 16-55425

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 8, 2017, Pasadena, California

Filed July 25, 2018

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.

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.

Before: M. Margaret McKeown and Kim McLane Wardlaw, Circuit Judges, and Wiley Y. Daniel,^* District Judge

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, 105 S.Ct. 2479, 86 L.Ed.2d 29 (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, 104 S.Ct. 1355, 79 L.Ed.2d 604 (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 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 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 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.

The Board’s student representative is also an active participant in the meetings. She³ 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...