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Supreme Court Allows Prayer at Public Meetings – What Does It Mean for Schools?

By now, you likely have heard or read about this week’s United States Supreme Court decision upholding the constitutionality of prayer at public meetings.  The decision itself should not be all that surprising, and really does not represent any kind of change – one way or another – in the Constitutional analysis of public prayer.

More than 30 years ago, in Marsh v. Chambers, the United States Supreme Court held that it was not unconstitutional to use taxpayer money to hire sectarian chaplains to offer ceremonial prayers at the opening of state legislative sessions.  The Court noted that ceremonial prayers at the opening of a legislative body’s meetings had been used since the nation’s founding (at the same time the Constitution was written and first implemented) to solemnize these meetings.  The case has been used to uphold prayers at local municipal government meetings as well.

So that means school boards, as local legislative bodies, can open meetings with prayer as well, right?  No necessarily.

For the last few years, courts have had to address the question of whether prayers at the opening of a school board meeting should be considered like other legislative body prayers or like school context prayers, which generally are not permitted when authored or at least sanctioned by the school itself.  The Third Circuit Court of Appeals, which has jurisdiction over Pennsylvania, where we are located, answered this question in Doe v. Indian River School District.  The Court concluded that because students may be likely to attend school board meetings, these prayers were more like school prayers than like other legislative prayers.  As a result, they held the prayers were unconstitutional.

Unless or until the US Supreme Court holds otherwise, the Third Circuit decision in Doe v. Indian River is final and binding on Pennsylvania School Districts.  This week’s decision will not be likely to limit it.

Supreme Court Will Not Hear ‘I Heart Boobies’ Case

The United States Supreme Court today declined to hear an appeal in what has become known as the “I heart boobies” case.  The Easton Area School District sought the appeal from a decision of the Third Circuit Court of Appeals, which upheld a lower court  conclusion that the District impermissibly prohibited students from wearing bracelets with that phrase written on them.

The bracelets are produced by the Keep a Breast Foundation, which exists to work to eradicate breast cancer.  The bracelets are sold to raise funds for the cause.  The District had attempted to ban the bracelets from being worn in the middle school, based on the obvious sexual double entendre.  A trial court concluded that the district did not have constitutional authority to limit the free speech rights of students by prohibiting the bracelets.

The district had argued that the bracelets caused a “material and substantial disruption” to the school, which if shown would give a district authority to limit speech.  Unable to show a “material and substantial disruption,” the District also argued that the speech was lewd.  Lewd speech can be restricted in the school setting without unconstitutionally infringing on students’ speech rights.

Last August, the Third Circuit Court of Appeals upheld the trial court, concluding that this speech was not “plainly lewd” because the context clearly could be understood to refer to a breast cancer awareness campaign.  By not hearing the case, the Supreme Court lets stand without comment the most recent decision against the District.

School administrators still have the power to limit student speech that creates a substantial disruption or that is plainly lewd.  As this case shows, though, it is important – and sometimes rather tricky – to articulate very clearly why the speech is disruptive or lewd.