By Mark Gutglueck
CHINO—Having been sternly rebuked by U.S. District Judge Jesus Bernal over its long-term practice of incorporating Christian prayer, Bible readings, Christian witnessing and proselytizing into its public meetings, the Chino Valley Unified school board on a 3-2 vote this week voted to double down on the nearly $200,000 it has lost in a suit brought against it and the district over that issue and appeal that ruling to the 9th Circuit Court of Appeal.
The three district officials whose votes authorized the appeal, however, evinced an imperfect understanding of the precise issue to be explored in that appeal, incorrectly believing it holds out the possibility of reestablishing their ability to essentially preach from the school board dais. Rather, the lawyer now representing the district this week told the Sentinel that his defense is “narrowly” aimed merely at reestablishing permission for the board to engage in a ceremonial prayer recitation at the beginning of the meeting.
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 constantly inject Christian references into the board’s proceedings.
The plaintiffs asked for an injunction against the intrusion of religiosity into the conducting of district business.
Na and his board colleagues Andrew Cruz and Sylvia Orosco are members of the Chino Hills Calvary Chapel, a church led by the Reverend Jack Hibbs, who had successfully lobbied the board previously to include Bible study classes as part of the district’s high school curriculum. Hibbs evinces a denominationalist attitude, which holds that Christians have a duty to take over public office and promote their religious beliefs.
Although all board members collectively and the district were identified as defendants, the suit cited Na and Cruz for their routine practice of quoting Biblical passages and making other religious references.
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 the district to respond to the suit. Instead, the district engaged the Sacramento-based Pacific Justice Institute for $1 to defend the district in the civil lawsuit.
The Pacific Justice Institute, which was founded by Brad Dacus and touts itself as a Christian advocacy law firm dedicated to the perpetuation of religious faith in public settings, made little headway in convincing Bernal 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.
“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.”
The court ordered the district to pay court costs and plaintiff fees of $197,405.
The board had claimed its actions are protected by the legislative prayer exception, and as defendants invoked the U.S. Supreme Court’s 2014 Town of Greece v. Galloway decision. In the Town of Greece v. Galloway case, the United States Supreme Court held that the Town of Greece, New York could permit volunteer chaplains to open each legislative session with a prayer.
But Bernal called the argument “meritless,” saying, “The legislative exception does not apply to prayer at school board meetings.”
The court held that the nature of the school board made it even more imperative that it not break down the constitutional wall between state and church.
“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,” Bernal stated. “The school board possesses an inherently authoritarian position with respect to the students. The board metes out discipline and awards at these meetings, and sets school policies that directly and immediately affect the students’ lives.”
Bernal added, “Regardless of the stated purpose of the [prayer] resolution, it is clear that the board uses it to bring sectarian prayer and proselytization into public schools through the backdoor.”
Judge Bernal’s ruling was made as part of a summary judgment in favor of the plaintiffs.
Had the district complied with the Freedom From Religion Foundation’s initial request to discontinue the continuous religious references throughout the business discussion portions of its meetings and confine itself to a single prayer at the opening of the meetings, it would have avoided the court’s imposition of plaintiff’s court costs. Though it is smarting from Bernal’s ruling, the board majority found itself encouraged to proceed further in contesting the matter by a core of its religious constituents, most, but not all, of them parents or grandparents of district students who attend Hibbs’ church, Chino Hills Calvary Chapel, which is located only a mile-and-a-half from the school district office.
On March 7, the school board met in a specially called meeting in which the only item on the agenda was to retain Murrieta-based Tyler & Bursch, which is billed as a Christian law firm, to handle an appeal of Bernal’s ruling. A throng of the faithful from Calvary Chapel were on hand, bearing placards that said in simple block lettering “Pray.” Only a portion of the assembled multitude actually fit within the board’s meeting room, which was packed beyond capacity. Nor could the lobby hold the overfill, as others were obliged to stand outside while the meeting took place.
Most of those who spoke were adamantly in favor of the district rolling the dice in making the appeal. A few characterized Bernal, whose first name is Jesus, as the Antichrist or one of his agents. They encouraged the board to vote in favor of proceeding with the appeal. Those who asserted a basis for doing so appeared to be pinning their hopes on the Greece case, and the belief that Bernal erroneously ruled that it had no applicability with regard to the Chino Valley Unified School District’s practices. Many of those who referenced it evinced only a rough understanding of what the Greece case entailed, and asserted it provided a precedent upon which Christians might establish a right to use public forums to engage in unfettered religious advocacy. When it was suggested they were misinterpreting the Greece case’s parameters, they grew argumentative and dismissed any such suggestions. A few individuals who braved the circumstance and propounded the view that the board’s appeal of the ruling would not be a wise course of action were met with groans from the crowd, some of whom suggested their comments should be disregarded because they were, in the words of one woman, “not Christians.”
Tyler & Bursch, in the personage of attorney Robert Tyler, agreed to take on the case free of charge.
Tyler’s waiving of his fees was beside the point, one of those in attendance stated. Tyler’s Christian faith, like that of Dacus before him, was lulling the board majority into a state of complacency that is not justified by the district’s precarious legal position, he said, and would ultimately lead the district into throwing more good money after the bad $197,405 that must already be paid to cover the Freedom From Religion Foundation’s legal fees.
With Na, Orsosco and Cruz voting in the affirmative and Pamela Feix and Irene Hernandez-Blair dissenting, the board retained Tyler & Bursch. The vast majority of the crowd applauded the hiring and many of those expressed confidence the district would prevail on appeal.
Two days later, Tyler spoke with the Sentinel.
He dismissed the suggestion that he was engaging in Christian advocacy by taking the case. “First of all, I am an attorney, not a special interest lobbyist. It doesn’t matter what my faith is. My job is to advocate for the interests of my client by arguing the law or arguing what the law should be from the client’s perspective.”
Outside the hyper-emotional confines of Monday night’s specially called school board meeting, Tyler indicated the appeal had little or no prospect of reestablishing Na and Cruz’s ability to pepper the discussions of the district’s business at board meetings with prayers, homilies, Biblical quotes and preaching.
“The appeal will focus upon the narrow issue of whether or not it is lawful for a school board to permit ceremonial prayer before a school board meeting. According to case law, participating in ceremonial prayer before a meeting is not unconstitutional. The Town of Greece case clearly articulates that even sectarian prayer before a city council meeting is not unconstitutional so long as the person praying is chosen in a nondiscriminatory fashion.”
Tyler said there is substance to the issues to be adjudicated.
“This case is interesting because this will be a potentially precedent setting case as the 9th Circuit has not ruled on whether or not prayer is permissible before a school board meeting, nor has the Supreme Court ruled on that issue,” he said. “In two previous cases, the Third and Sixth Circuit Courts of Appeal considered the issue and though both of them ruled that prayer was not permissible before a school board meeting, both were decided before the Town of Greece case was heard by the Supreme Court. The Town of Greece case creates a different landscape with regard to ceremonial prayer. The U.S. Supreme Court has ruled in favor of ceremonial prayer when it is made before a city council, a state legislature, and Congress. It is Constitutional when it is ceremonial in nature. It is a formality and people should not be offended. There has been ceremonial prayer since the First Continental Congress. This idea that prayer is offensive is something new and politically correct rather than unconstitutional.”
When it was pointed out to him that a large segment of those in attendance at Monday night’s meeting as well as both Na and Cruz believed that the appeal was aimed not only at reestablishing the tradition of a brief prayer being recited at the start of the school board’s meetings but the right of the school board’s members to use their bully pulpit to sermonize and engage in Christian witnessing, Tyler said that was a misinterpretation of the position he was purposed to argue.
“The school district is focused on a narrow issue, which is whether ceremonial prayer is permissible prior to a school board meeting,” he said. “This appeal will not likely deal with those aspects of the district court’s ruling as it relates to other communications made during the communication period or what school board members may have individually said at different periods. That is not what we have been hired to defend. We are focusing on the issue of ceremonial prayer before school board meetings and not the other issues. As this case progresses you will see that the case is more focused on prayer before school board meetings.”
Tyler indicated he believed there was a possibility the appeal could establish that the principle established in the Greece case – that sectarian prayer is permissible in the ceremonial portion of certain public meetings – can be extended to school boards as well. He further indicated that Chino Valley Unified could also overcome its overwhelming numerical favoritism for Christian prayer as opposed to non-Christian invocation in meeting the requirement that the imposition of prayer be non-discriminatory. In doing so, he defended the district from the charge that it had been discriminatory in its past prayer practices by featuring prayer that is almost exclusively Christian in its orientation.
“I believe the state of the law is that if a school board has a non-discriminatory policy of permitting individuals to come to pray before school board meetings, allowing clergy or rabbis, or someone of other faiths, to come and pray before a school board meeting, that is permissible under the Constitution, and the Supreme Court has already set that precedent,” he said. “If a community was 90 percent Muslim and ten percent Christian and 90 percent of the prayers were Muslim and only ten percent were Christian, that would not necessarily be discriminatory.” He said that if members of a particular religion come forward in larger numbers to offer their specific brand of prayer, that is not prejudicial toward members of other religions who are less energetic about expressing their faith.
“The school board is not responsible to go find members of the clergy or members of a particular faith to participate,” he said. “This is a volunteer-based policy. If someone wants to volunteer, they can volunteer. That most of those at the school board meetings offer Christian prayer may be the case but it doesn’t prove anything other than that the majority of the community, the clergy and the churches, may be of the Christian faith.”
By Mark Gutglueck