The most recent Hail Mary thrown by the conservative values/Republican/Christian contingent on the Chino Valley Unified School District Board of Trustees failed to strike paydirt, nine years after a similar quixotic attempt by the coalition’s predecessors went to hell.
This time around, the long-range effort to reverse the 1962 Supreme Court ruling banning prayer in public schools ran into the same federal judge who had thwarted the effort in 2016. The petitioners’ hope that changes on the U.S. Supreme Court and some rulings on related or peripheral issues that had signaled a change in attitude and a tolerance for expressions of religiosity in public forums would weigh in their favor did not pan out. Once again, it appears the district will need to pay the legal fees of the advocates of religion-free public education environments as a consequence of the unsuccessful legal maneuver. This most recent setback and the expense associated with it does not seem to have dimmed the enthusiasm of the Christians on the board for engaging in the good fight, as they consider themselves, the district and the district’s taxpayers to be in for the long haul, from which they are praying they will emerge with a just and Christian victory.
In 2012, Andrew Cruz, a member of the Calvary Chapel Chino Hills Congregation, was elected to the school board. Cruz joined James Na and Sylvia Orozco, who were also Calvary Chapel parishioners on the panel. The pastor at Calvary Chapel Chino Hills is Jack Hibbs, a denominationalist, who holds that Christians have a duty to stand up for their beliefs by either running for election to public office themselves or supporting other Christians who do run, and then, upon taking office, Christianize public policy.
With the religious trifecta of Orozco, Na and Cruz in place and in control of the district, there followed increasingly bold efforts to make significant inroads on the district’s policies.
Milestones in this regard were achieved with making Bible study part of the district curriculum, as well as including benedictions at the beginning of the school board meetings and later, after Na became board president, outright evangelism from the district board dais, with Na telling those present at meetings that they should seek out Jesus Christ as their personal savior.
When the district began to move toward including daily prayer as part of basic instruction at the district’s schools, the Freedom From Religion Foundation of Madison, Wisconsin in 2014 stepped in and 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.”
A ruling on the Freedom From Religion Foundation lawsuit by Federal Judge Jesus Bernal resulted in overt religiosity and proselytizing within the district’s schools being eliminated in 2016. As a consequence of that ruling, the district had to reimburse the Freedom From Religion Foundation $546.70 for its cost in filing the lawsuit and cover its $202,425.00 in attorney’s fees.
Nevertheless, the Na, Cruz and Orozco voted for the district to appeal Bernal’s ruling to U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit ultimately upheld Bernal, which resulted in the district being responsible for another $75,680 of the Freedom From Religion’s legal fees with regard to the appeal.
In the years since, Orozco left the school board but two others of like mind, Sonia Shaw and Jon Monroe were elected to the board in 2022. With the school board under the tight grip of Na, Cruz, Monroe and Shaw, who was established shortly after her election as the school board president, the district contemplated taking up once more an effort to acculturate public education in Chino Valley in accordance with Christian principles.
The time to do so was propitious the quartet figured.
In 2022, the U.S. Supreme Court, laden with six justices appointed by what are deemed to be “conservative,” i.e., Republican presidents and three by “liberal,” i.e., Democrat presidents, took up the case of Kennedy v. Bremerton School District. In Kennedy v. Bremerton a football coach challenged his having been disciplined for praying with members of his team on the field after games. The Supreme Court, in its decision with regard to Kennedy v. Bremerton, by a 6-to-3 ruling dispensed with the previous standard, one embodied in the 1971 case of Lemon v. Kurtzman relating to such issues. Under Lemon v. Kurzman, laws could not have a religious intent, could not advance a particular religion but could not inhibit any religion either and could not promote government involvement in a particular religion. In Kennedy v. Bremerton School District, the Supreme Court indicated that in prohibiting the coach from praying with his players, the coach’s free speech rights might have been violated and that before prohibiting prayer straight out, a governmental entity should consider “historical practices and understandings” with regard to prayer in the particular community involved.
Na, Cruz, Shaw and Monroe, heartened by the Kennedy v. Bremerton decision, in July of this year rolled the dice in an effort to see whether the unwinding of the controlling precedent in Lemon v. Kurzman will carry over and provide a different outcome than the district had in 2016 and 2018 if it were to test the school prayer issue again.
Quietly, the district retained Advocates for Faith & Freedom, a Murrieta-based nonprofit law firm specializing in issues relating to religious liberty to represent it with regard to what was generically described as “anticipated litigation.” On Thursday, July 31, Advocates for Faith & Freedom, on behalf of the district, filed with the Federal District Court in Riverside for relief from Judge Bernal’s 2016 injunction enjoining the board from permitting or endorsing prayers during meetings.
The district’s filing incorporated wording from the Supreme Court’s decision in the Kennedy v. Bremerton case, propounding that a majority of the board are intent on adopting a policy of kicking off the board meetings with an invocation or a prayer in keeping with the district’s “history and traditions.”
In a statement that minimized the degree to which the board as it was previously composed including Na and Cruz had virtually exclusively utilized Christian prayer as the board homilies, Shaw insisted that the district had “welcomed voices of all faiths without coercion or preference.” She said that secular “groups driven by political agendas” had straitjacketed the district into having “to abandon a unifying tradition,” namely prayer recitation. “We will not quietly surrender our right to reflect the values of our community and the freedoms our nation was built upon,” Shaw vowed.
Robert Tyler, an attorney for Advocates for Faith & Freedom who was involved in 2016 and 2018 when the district policy was successfully challenged by the Freedom From Religion Foundation and lost on its appeal of Judge Bernal’s ruling, said the district was banking on the reorientation the Supreme Court has made with regard to the subject of public religious expression in recent years.
The Freedom From Religion Foundation immediately reacted to the filing, and stepped in to oppose the district’s petition.
As a matter of course, the case was routed to Judge Bernal. Based on his familiarity with the subject matter and being up to speed with regard to the case law pertaining to the full range of issues involved.
This week, on October 13, Judge Bernal denied the district’s petition for the board to be able to engage in religious invocations at its meetings. Judge Bernal utilized the same citations and references as he had in 2016. He ruled again that the school district cannot open board meetings with prayer.
“Defendants argue that the court should grant relief from the order… because the legal basis underpinning this court’s order and the 9th Circuit’s opinion was overruled by the Supreme Court’s decision in Kennedy v. Bremerton School District,” Judge Bernal wrote. “The court finds that defendants have not articulated a sufficient basis for relief.”
Judge Bernal noted, “Defendants waited over three years after Kennedy to file this motion. Defendants provide no reason, let alone ‘exceptional circumstances,’ to justify this three-year delay.”
In his ruling, Judge Bernal stated that the school district, as the defendants in the original case brought in 2014, had not articulated how the 2016 ruling was in error, grounded in factual misrepresentations or based upon inapplicable case law. Nor had the defendants brought up any new, novel or otherwise previously unexplored legal territory, the judge said. “Defendants shouldn’t be allowed to get another bite at the apple years after losing just because they don’t like that the court ruled against them,” Judge Bernal stated. “The Chino Valley School Board was unable to prove its case otherwise.”
The ruling further stated that “even if the court found that defendants brought the motion within a reasonable time, the court is not persuaded that Kennedy represents a ‘significant change in the law.” The Supreme Court distinguished coach Joe Kennedy’s private prayers from its line of Establishment Clause cases. It found ‘prayer involving public school students to be problematically coercive’; the coach’s prayers were not ‘publicly broadcast or recited to a captive audience’ and he did not require or expect students to participate. Nothing in Kennedy persuades this court that the Supreme Court intended to overrule its line of school prayer cases banning ‘prayer involving public school students’ that is ‘problematically coercive.’”
In response to the ruling, Annie Laurie Gaylor, Freedom From Religion Foundation co-president, said, “We are so pleased that reason and our secular Constitution have prevailed here, and that the families in this school district will not have to endure coercive prayers in order to attend school board meetings.” The foundation’s attorneys plan to file a motion seeking additional fees.
“The district fails to protect taxpayer money as long as it continues to pursue this renewed attempt to coerce families to engage in prayer,” Gaylor said.
Monroe, who moved out of state in August, resigned his position on the board as of August 15. Shaw, Na and Cruz remain committed to the effort to obtain clearance to initiate and close school board meetings with prayer and see establishing that right as a prelude to a further move toward allowing teachers and students to offer up prayer in classrooms. The district, the school board and Advocates for Faith & Freedom went into the appeal with their eyes wide open, anticipating to lose at the Federal District Court in Riverside and to lose as well before the 9th Circuit Court of Appeals. It is at the level of the U.S. Supreme Court, where the school board and Advocates for Faith & Freedom intend to achieve final reckoning.
While the district is at liberty to appeal Judge Bernal’s most recent ruling to the 9th Circuit Court of Appeals and then, if that fails, appeal the 9th Circuit Court of Appeals’ ruling to the U.S. Supreme Court, that strategy is a longshot.
U.S. Courts of Appeals routinely handle more than 50,000 cases each year. Generally, 7,000 to 8,000 of those decisions are appealed to the U.S. Supreme Court. On a yearly basis, the Supreme Court considers only about 100 of those cases. Historically, the Supreme Court tends to affirm the lower court’s decision in a majority of the cases it chooses to hear, with reversal rates typically in the range of 30 percent to 40 percent.
Ultimately, the issue of school prayer will at best only tangentially hinge on the Kennedy v. Bremerton case. The real crux of the school prayer issue comes down to the 1962 case of case of Engle v. Vitale, a landmark decision in which the Supreme Court ruled that state-sponsored or organized prayer in public schools violates the Establishment Clause of the First Amendment.