CVUSD Will Not Appeal Upholding Of School Prayer Ban To U.S. Supreme Court

The newly-composed majority of the Chino Valley Unified School District Board of Trustees last week voted to forgo appealing to the U.S. Supreme Court a string of decisions at the trial court level and before the Ninth Circuit Court which directed the school board and its members to discontinue the practice of engaging in prayer and Christian advocacy during their public meetings.
Previously, the school board majority of James Na, Andrew Cruz and Sylvia Orozco had prevailed in making a decision to contest a lawsuit brought against the district by the Freedom From Religion Foundation on behalf of two named plaintiffs, Larry Maldonado and Mike Anderson, and 21 unnamed plaintiffs. When Federal Judge Jesus Bernal ruled against the district in that litigation, the same board majority sought to appeal the matter to a higher court.
The suit, filed on November 13, 2014 in Federal Court in Riverside, asserted the plaintiffs were alienated or intimidated at school board meetings because of the insistence of some district officials that they had a right to engage in so-called Christian witnessing, including “prayers, Bible readings and proselytizing” in the course of those meetings.
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.
In January 2015, Orozco, Na and Cruz succeeded in having the district bypass the law firm which normally represents the district in court, which in private was recommending that the district simply settle the matter by complying with the several demands in the Freedom From Religion Foundation’s suit. Instead, the district retained, at a token cost of $1, the Sacramento-based Pacific Justice Institute 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.”
Na and Cruz confidently predicted that the district would not sustain any costs or liability as a consequence of defending against the suit.
Na, Cruz and Orozco had reliable moral support from the congregation at Chino Hills Calvary Chapel, a church led by the Reverend Jack Hibbs, where all three worshiped. Hibbs evinces a denominationalist attitude, which holds that Christians have a duty to take over public office and promote their religious beliefs.
The case went before Federal Judge Jesus Bernal, who on February 18, 2016 issued a ruling 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 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. Tyler contended that the district and its school board were merely seeking to preserve its invocation policy at board meetings. However, 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 Chino Valley Unified School District Board meetings. The Freedom From Religion Foundation demonstrated that what Na and Cruz, and to a lesser extent Orozco, were engaged in was not simply offering up a homily at the opening of the meeting but rather subjecting those in attendance with recurrent diatribes to adopt a Christian belief system. Moreover, it was demonstrated that the invocations in virtually every case, with only the rarest of exceptions, were Christian in character. The panel accordingly found unpersuasive Tyler’s characterization of Na and Cruz’s action as simply offering a non-denominational dedication at the opening of the meetings. Rather, the panel concluded, Tyler was seeking to minimize the extent to which Na and Cruz subjugated 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 panel said the Chino Valley School Board must desist in incorporating prayers, proselytizing and the citation of Christian Scripture as elements of its meetings.
Undeterred by both resounding defeats 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 last summer resolved to petition the he 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’s 25 currently-active judges might 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.
While the full 9th Circuit was mulling that request, the 2018 election cycle was ongoing. Incumbent board members Orozco and Pamela Feix had opted not to seek reelection, with Orozco vying instead for a position on the Chino City Council, ultimately unsuccessfully. On November 6, Christina Gagnier and Joe Schaffer were elected to the board, and in December supplanted Orozco and Feix.
Ultimately, the full 9th U.S. Circuit determined not to take up the matter and second guess Judges McKeown, Wardlaw and Daniel. The district has accrued a further liability of roughly $147,000 in legal fees that it must pay the Freedom From Religion Foundation on top of the almost $203,000 that Bernal awarded in 2016, bringing the district’s costs in the Quixotic effort to $350,000.
Last week at its January 17 meeting, the board came out of a closed executive session before the 7 p.m. start of the public portion of the meeting. Patricia Kaylor, the administrative secretary to the board of education announced, “The board took action to rescind the direction given to legal counsel on August 1, 2018, to file a writ petition to the United States Supreme Court for a review of the Ninth Circuit Court ruling and cease any further litigation in the matter involving the Freedom From Religion lawsuit. This includes any filing of or petitioning for cert with the U.S. Supreme Court on a motion by Irene Hernandez Blair seconded by Christina Gagnier, with a vote of Blair, Shaffer, Gagnier voting yes and Cruz and Na voting no.”
-Mark Gutglueck

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