Undeterred by two resounding defeats in Riverside Federal Court in 2016 and once again last month before the Ninth Circuit Court in San Francisco, the devoutly religious faction of the Chino Valley school board prevailed in a 3-2 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.
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, with the election of 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, that tendency stepped up a notch. It intensified further still 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 has reminded those in attendance at the board’s meetings that “Jesus Christ is the truth and the way and the light. 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.”
Na and Andrew 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 assistance, he successfully lobbied the school board to include Bible study classes as part of the district’s high school curriculum. In 2014, Hibbs further galvanized the voters among Chino Hills Calvary Chapel’s 10,000 members to go to the polls and elect to the school board yet another of his congregation’s members, Sylvia Orosco.
Just days after Orosco’s election but before she was sworn in and while the position she would take up was still held by Charles Dickie, 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.
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 an 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.”
The board had claimed its actions are protected by the legislative prayer exception, and volunteer chaplains could be permitted 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.”
Bernal 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 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, were persuaded to fight on. Dispensing with the representation of the Pacific Justice Institute, the school board majority on March 7, 2016 opted to be represented by another Christian advocacy attorney, Robert Tyler of the Murrieta-based law firm Tyler & Bursch, to handle the appeal of Bernal’s ruling.
In pursuing the appeal, the school board reasserted its rights to proselytize during public forums, hinging its argument on the basis of the 2014 5-4 decision by the U.S. Supreme Court in the case of Town of Greece v. Galloway. In the Greece case the Supreme Court 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. Nevertheless, in the majority opinion in the Greece/Galloway case, Supreme Court Justice Anthony Kennedy made clear that prayer was acceptable only when it is offered “during the ceremonial portion of the town’s meeting. Board members are not engaged in policymaking at this time, but in more general functions, such as swearing in new police officers, inducting high school athletes into the town hall of fame, and presenting proclamations to volunteers, civic groups, and senior citizens. It is a moment for town leaders to recognize the achievements of their constituents and the aspects of community life that are worth celebrating.”
Accordingly, Tyler sought and obtained from the American Center For Law And Justice an amicus curiae brief filed on May 3, 2017 in which Francis Manion, Geoffrey Surtees, Edward L. White III and Erik Zimmerman propounded on behalf of the American Center For Law And Justice their contention that in its response to the lawsuit filed by the Freedom From Religion Foundation, the district and its school board were merely seeking to preserve its invocation policy at board meetings. The American Center For Law And Justice sought to draw a distinction between previous Supreme Court and other rulings banning prayer in school and the act of sanctifying the quasi-legislative action of the school board. In this way, the amicus curiae brief held, the matter at issue was “essentially more of a ‘legislative-prayer case’ than a ‘school-prayer matter.’”
According to Manion, Surtees, White and Zimmerman, American legislative bodies have incorporated invocations into their proceedings from the outset of the country’s existence. The Supreme Court, they said, has previously “acknowledged the fact that ‘the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain.’ The United States Congress elected chaplains and authorized the payment of their salaries within months of the passage of the Constitution. As the [Supreme] Court explained, ‘[c]learly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.”
Manion, Surtees, White and Zimmerman further noted that “Most state legislatures have also opened with prayer since the time they were created.”
Since the Supreme Court upheld the Town of Galloway’s council’s right, as a deliberative and legislative body, to hold invocations at the outsets of its meetings, the same principle applies to the Chino Valley Unified School District Board of Trustees, acting in its legislative capacity, Manion, Surtees, White and Zimmerman asserted. “Because school boards are deliberative public bodies, Supreme Court decisions addressing legislative prayer— Marsh [another public prayer case] and
Galloway —should control this case, and not cases dealing with student prayer. The location of a school board meeting does not alter the fact that it is a deliberative public body. While children might often be present at school board meetings, they do not constitute the principal audience of the meeting. Children were present at town council meetings in Galloway, but that fact did not change the outcome,” according to the amicus curiae brief.
A three-judge panel of the U.S. 9th Circuit Court of Appeals considered the appeal, finding the arguments propounded by Tyler along with Manion, Surtees, White and Zimmerman unpersuasive, not the least because of the fashion in which they sought to minimize the extent to which Na and Cruz went far beyond offering a simple convocation at the opening of the meetings and instead subjected those present to what was tantamount to Christian indoctrination. On July 25, 2018, the 9th Circuit panel upheld in its entirety Bernal’s 2016 ruling. 9th Circuit Judges M. Margaret McKeown and Kim McLane Wardlaw and Colorado District Judge Wiley Y. Daniel said the Chino Valley School Board must desist in incorporating prayers, proselytizing and the citation of Christian Scripture as elements of its meetings. The court noted 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 proselytizing could have an undue influence on them, the panel said. “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,” according to the decision, which stated that the school board meetings fulfill a further “function as extensions of the educational experience of the district’s public schools. The audience and timing of the prayers, as well as the religious preaching at the board meetings, diverge 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.”
Though the Greece/Galloway decision on which the district based its appeal made clear that all religious affiliations had to be respected in such prayer sessions if they were to be conducted, the predominant number of the Chino Valley Unified School District religious references were Christian ones, slighting other religious minority groups within the district such as Buddhists, Jews, and Moslems as well as atheists and agnostics, the appellate court held.
The 9th Circuit Court cited the principle established in the 1971 case of Lemon v. Kurtzman in which the Supreme Court ruled that legislation relating to religion must have a secular purpose and should not be primarily intended to advance or inhibit any religion and further not create “excessive government entanglement” with religion as was clearly the case with the religious-angled utterances of some of the members of the Chino Valley Unified School District Board of Trustees.
According to the 9th Circuit Court, the Establishment Clause of the 1st Amendment to the U.S. Constitution limits the degree to which believers of one faith can conscript others to go along with its rituals in a public setting, and it held that the board can solemnify its proceedings without the Christian references.
“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,” the 9th Circuit said.
Nevertheless, on August 1, after more than two hours in closed session discussions, Na, Cruz and Orosco voted not to accept the 9th Circuit as having the final authority on whether the school board’s members can make public expression of their religious beliefs at school board meetings.
With board members Irene Hernandez-Blair and Pam Feix dissenting, Na, Cruz and Orozco gave direction to Superintendent Norm Enfield to have Tyler press on with a petition seeking the U.S. Supreme Court to conduct an en banc review of the 9th Circuit’s ruling. This would bring the issue in front of all nine members of the Supreme Court rather than a two-or-three member panel thereof, ensuring what the board hopes will be a comprehensive revisiting of all of the issues.
Based on statements made by Tyler, Na, Cruz and Orozco, they have faith that the concept of public prayer will resonate more positively among the increasingly conservative members of the U.S. Supreme Court than did it with three judges based in San Francisco and with Bernal, a Yale and Stanford Law-educated jurist appointed by President Barack Obama they consider to be a liberal.
While Tyler is not charging the city for his legal services, the $202,971.70 awarded to the Freedom From Religion Foundation has yet to paid, and this does not include further lawyer’s fees accrued during the appeal to the 9th Circuit. If the matter is accepted for review by the Supreme Court and the district does not prevail, this would compound the costs, very likely to $600,000 or more.
Hibbs has created an entity, the Let Us Pray Foundation, which said it would assist with the district’s legal costs. It has reportedly raised in the neighborhood of $100,000 for that purpose.
-Mark Gutglueck