Full Ninth Circuit Court Will Not Revisit Rebuke Of Na’s & Cruz’s Proselytizing

The full Ninth Circuit Court will not rehear the Chino Valley school district’s appeal of a decision by a Ninth Circuit panel that last summer held a ruling by a federal judge in Riverside properly found that a majority of the Chino Valley Unified School District had been overdoing it with its intensely religious references during its public meetings. That judge ordered the district officials to curtail their religious haranguing at their public meetings.
For more than a decade the board of education with the Chino Valley Unified School District has tested the boundary of permissible religious advocacy at its public functions. In 2008, James Na, a Chinese immigrant who considers the United States to be the fulfillment of Biblical prophecy by which the values of the Kingdom of God have become manifest upon earth, was elected to the school board. Among Na’s colleagues on the board was Sylvia Orozco, who had been elected two years previously. Orozco, a committed Christian herself, did not blanch when Na showed no hesitancy in witnessing his Christian faith to one and all, both in person and in private as well as while on the dais during board meetings, evincing disappointment and indignation toward anyone who might suggest that it was improper for him to be using a public forum to engage in a religious dialogue. The proselytizing stepped up a notch with the 2012 election of Andrew Cruz to the school board.
From the school board dais Na and Cruz would frequently urge those in attendance to calibrate their own code of behavior with the instruction laid out by the Word of the Lord in the Good Book, and they would commonly take recourse in Biblical passages. At one point during a meeting in January 2014, Na said everyone should “surrender themselves to God’s will. Everyone who does not know Jesus, go find Him.”
Not to be outdone, Cruz on more than one occasion reminded those in attendance at the board’s meetings that “Jesus Christ is the truth and the way and the light.” On other occasions he was more expansive, as when he once stated, “Jesus 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. Lord, hear my prayer, listen to my cry for mercy; in your faithfulness and righteousness come to my relief. Do not bring your servant into judgment, for no one living is righteous before you. The enemy pursues me, he crushes me to the ground; he makes me dwell in the darkness like those long dead. So my spirit grows faint within me; my heart within me is dismayed. I remember the days of long ago; I meditate on all your works and consider what your hands have done. I spread out my hands to you; I thirst for you like a parched land. Answer me quickly, Lord; my spirit fails. Do not hide your face from me or I will be like those who go down to the pit.”
Orozco, Na and Cruz are members of the Chino Hills Calvary Chapel, a church led by the Reverend Jack Hibbs. Hibbs evinces a denominationalist attitude, which holds that Christians have a duty to take over public office and promote their religious beliefs.
Hibbs made an object demonstration of the impact his brand of evangelism can effectuate when in 2010, through an extension of his church known as the Watchman Industry and with Na’s and Orozco’s assistance, he successfully lobbied the school board to include Bible study classes as part of the district’s high school curriculum.
On November 13, 2014, the Freedom From Religion Foundation of Madison, Wisconsin filed suit in Federal Court in Riverside against the district on behalf of two named plaintiffs, Larry Maldonado and Mike Anderson, and 21 unnamed plaintiffs who asserted they were alienated or intimidated at school board meetings because of the insistence of some district officials to engage in so-called Christian witnessing, including “prayers, Bible readings and proselytizing.”
The plaintiffs asked for an injunction against the intrusion of religiosity into the conducting of district business.
Although all board members and the district collectively were identified as defendants, the suit cited Na and Cruz for their routine practice of quoting Biblical passages and making other religious references.
Orozco, Na and Cruz were able to convince the remainder of the board that the district would not sustain any costs or liability as a consequence of defending against the suit, and in January 2015 the board voted 3-2 against hiring the law firm which normally represents it in court. Instead, the district engaged the Sacramento-based Pacific Justice Institute for $1 to defend the district in the civil lawsuit.
The Pacific Justice Institute, founded and led by Brad Dacus, touts itself as a public interest law firm that “handles cases addressing religious freedom, including church and private school rights issues, curtailments to evangelism by the government, harassment because of religious faith, employers attacked for their religious-based policies [and] students and teachers’ rights to share their faith at public schools.”
The case went before Federal Judge Jesus Bernal, who on February 18, 2016 issued his own encyclical in which he rejected the Pacific Justice Institute’s arguments that the district’s policy of celebrating the beliefs of a majority of the board did not violate the plaintiffs’ rights to attend district board meetings and participate in other district and school functions without being subjected to an intensive round of religious advocacy. Bernal ordered the Chino Unified School District Board to discontinue its overt and constant references to Christianity during its public meetings and refrain forthwith from inserting religion into official proceedings.
“The court finds… permitting religious prayer in board meetings, and the policy and custom of reciting prayers, Bible readings, and proselytizing at board meetings, constitute unconstitutional government endorsements of religion in violation of plaintiffs’ First Amendment rights,” Bernal wrote. “Defendant board members are enjoined from conducting, permitting or otherwise endorsing school-sponsored prayer in board meetings.”
Bernal rejected as “meritless” the board’s claim that its actions are protected by the legislative prayer exception, and volunteer chaplains could be permitted to open each legislative session with a prayer and that the legislative prayer exception applies to prayer at school board meetings since “The risk that a student will feel coerced by the board’s policy and practice of religious prayer is even higher here than at football games or graduations. The school board possesses an inherently authoritarian position with respect to the students.”
Bernal awarded the Freedom From Religion Foundation’s legal team $202,425.00 in attorney’s fees and $546.70 in costs to be paid by the district.
Despite that setback, Na, Cruz and Orozco, buttressed by Hibbs and the parishioners at Calvary Chapel, resolved to fight on, dispensing with the representation of the Pacific Justice Institute, and voting on March 7, 2016 to retain, with board members Irene Hernandez-Blair and Pamela Feix dissenting, to retain another Christian advocacy attorney, Robert Tyler of the Murrieta-based law firm Tyler & Bursch, to handle the appeal of Bernal’s ruling.
Tyler pursued the appeal by reasserting the school board’s right to proselytize during public forums, hinging his argument on the basis of the 2014 5-4 U.S. Supreme Court decision in the case of Town of Greece v. Galloway, which held that public officials can open public meetings with prayers — even explicitly Christian ones — if the government agency does not discriminate against minority faiths when choosing who may offer a prayer and the prayer does not coerce participation from nonbelievers. Despite Tyler’s contention that the district and its school board were merely seeking to preserve its invocation policy at board meetings, the three-judge panel of the U.S. 9th Circuit Court of Appeals considering the appeal – consisting of Judges M. Margaret McKeown and Kim McLane Wardlaw and Colorado District Judge Wiley Y. Daniel – looked at the actuality of what had been occurring at school board meetings, and found unpersuasive Tyler’s characterization of Na and Cruz’s action as simply offering a tepid convocation at the opening of the meetings. Rather, the panel concluded, Tyler was seeking to minimize the extent to which Na and Cruz subjected those present at the board meetings to what was tantamount to Christian indoctrination. On July 25, 2018, the 9th Circuit panel upheld in its entirety Bernal’s 2016 ruling. The 9th Circuit said the Chino Valley School Board must desist in incorporating prayers, proselytizing and the citation of Christian Scripture as elements of its meetings. Noting the frequent presence of children at the meetings who are obliged to attend because of presentations or participation in the items being taken up by the board, the court found that the religious preaching at the board meetings diverged from the legislative-prayer tradition. “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 panel found.
Undeterred by the resounding defeat in Riverside Federal Court in 2016 and before the Ninth Circuit panel in San Francisco, the devoutly religious faction of the Chino Valley school board, which at that time consisted of Orozco, Na and Cruz, prevailed in a 3-to-2 vote on August 1 calling for the district to throw one last Hail Mary pass into the end zone by petitioning the United States Supreme Court to reconsider the case for allowing celebrations of Christian belief to remain as an intrinsic element of school district functions. Before proceeding with the petition to the Supreme Court, it was decided, again in a 3-to-2 vote, to ask the full Ninth Circuit Court for a rehearing of the case, on the outside chance that the entirely of the circuit court would reverse the panel. There are a total of 29 positions on the 9th U.S. Circuit Court of Appeals, though there are four seats currently vacant. Among the 25 currently-active judges, eight were sympathetic to the district’s position and were prepared to second guess the panel of McKeown, Wardlaw and Daniel.
The senior member of the 9th U.S. Circuit, Judge Diarmuid O’Scannlain, who was appointed by Ronald Reagan, along with judges N. Randy Smith, Sandra Segal Ikuta, Milan D. Smith, Jr., Consuelo María Callahan, Jay Bybee, Alex Kozinski and Carlos T. Bea were in favor of revisiting the matter, but were outnumbered by their peers. Accordingly, the 9th Circuit in total will not review the ruling.
Having already sustained substantial legal costs relating to the lawsuit brought by the Freedom From Religion Foundation, the district would likely assume greater financial liability in defending the case further.
At present, the school board majority that was earlier determined to appeal to the U.S. Supreme Court is no longer in place to do so. While Na and Cruz remain on the board, Orozco opted this year to run for the Chino City Council. She was unsuccessful in that endeavor. During the same election in the school board race, she and Feix were replaced by Christina Gagnier and Joe Shaffer. Based on their statements during the campaign, it does not appear that either Gagnier or Shaffer will supply the crucial third vote to appeal the case to the U.S. Supreme Court.
-Mark Gutglueck

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