I am informed by the diligent attorneys at the Freedom from Religion Foundation (FFRF) in Madison, Wisconsin that the Lebanon, Missouri school board has not answered the FFRF’s second letter to the Superintendent of Schools about Principal Kevin Lowery’s prayer at a public school. That letter, shown below, was sent three weeks ago, on June 24. I didn’t publish it at the FFRF’s request, so that the folks in Lebanon would have time to respond without pressure. (I doubt that my publishing it would constitute “pressure,” though.)
As you may recall, Principal Lowery prayed at the Lebanon High School graduation—a blatant violation of the U.S. Constitution’s First Amendment—and the FFRF complained, as did as several past and present students. The school board and school superintendent ignored the FFRF’s first letter sent on June 2. If you don’t remember that fracas, some of the posts are at this search. I personally complained to the school board, and got no response save a snarky response from member Kim Light.
The school officials in the Lebanon School District have not responded to either letter. In other words, they’re stonewalling, hoping this will go away.
It won’t.
The next step, I suspect, is that they’ll find an attorney willing to participate in suing the Lebanon School Board, as well as a complainant with the standing to sue. I suspect that there will be no problem getting a complainant, though I don’t know for sure. I’ve also heard that the American Civil Liberties Union is preparing a lawsuit, but again, that’s hearsay: something I can’t substantiate.
You can see the second letter below, which will give you an idea of how the FFRF tries to resolve matters before they file a formal lawsuit. Nobody wants a lawsuit, for it’s expensive, time-consuming, and onerous. But believe me, if the FFRF doesn’t get a response, and the conditions above are satisfied, a lawsuit will be filed.
And when it is, Lebanon will be well advised to settle promptly. Actually, they should settle now, providing the written affirmation that the FFRF requests. Based on existing case law, Lebanon will lose that lawsuit on First Amendment grounds, and in the process will bankrupt their school district. For if they lose, they’ll have to pay court costs and the prosecuting attorney’s fees. In the Dover case, that was around one million dollars.
Really, Lebanon, are you so wedded to your “right” to pray in public that you will risk your children’s education, and the funding of their schools, for that? That’s a bad decision. You can always pray to yourself in schools, and anywhere else where you’re not a representative of the government. What is it about you that you insist on foisting your prayers on everyone, whether they want them or not, and in public schools? Do you not respect people who don’t share your beliefs? I wouldn’t foist atheism on public-school students, and you shouldn’t foist Christianity on them. That’s the way a secular society is supposed to work.
If a lawsuit goes forward, the Lebanon school board, school superintendent, and Principal Lowery will get what they deserve: a trouncing.
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Given the stonewalling, I predict a suit. And and expensive lesson for the people of Lebanon and their school board.
True believers can be incredibly dense at times.
I think dense is appropriate, and I think it stems from their sense of heroic defense of a noble cause. A sense they are the beleaguered minority, like Davy Crockett at the Alamo. After all, if Christ could die for them, the least they could do is endure the embarrassment of a run at the first amendment windmill.
Exactly.
And, of course, the punch line is that in defending their noble cause, what they’re really doing is cutting off their nose to spite their face. The secular option would be good for them, too – not just atheists. It would mean that if they were ever to lose the majority position, they wouldn’t have to worry about other religions being foisted on them.
“True believers can be incredibly dense at times.”
That’s really it, isn’t it. They, at long last, just don’t get it. The Lebanon School Board is probably populated with people lamenting that “Prayer has been taken out of schools”, as though it should ever have been there in the first place. If this is the way things have always been done in Lebanon, that just means that they’ve been violating the first amendment this whole time. They’ll lose their case if a suit is filed as the good professor has pointed out numerous times, case law is pretty well stacked against them. And when they do lose and are forced into contrition, they will blame atheists for butting into their community and forcing our secular values upon them. The Lebanon School Board truly just does not get it , do they?
The Lebanon Board is playing a game of chicken with a freight train, and their car is stalled on the tracks. And they’ve just locked the doors and are cinching their seatbelts….
b&
And it’s made of balsa wood…
I’d just like to add that the Kitzmiller trial could have been a lot more than a million dollars. IIRC, the plaintiff’s experts (Kevin Padian, Ken Miller, Barbara Forrest) didn’t receive anything other than airfare and lodging. Unlike William Dembski who took $20k and then bailed on testifying.
The lawyers also accepted a much smaller fee than the amount of effort that they put into the case.
I’ve heard figures as high as 4 million for that trial.
Perhaps the people of Lebanon have looked at the Hobby Lobby decision and are thinking it is worth a shot.
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Of course, that assumes they’ve thought about it at all.
Or one of the delusional ambulance chasers (like the Thomas More clowns) are telling them that the Hobby Lobby ruling shows that the tide is turning in their favor. AND they won’t charge them anything to represent them. Of course, they aren’t mentioning anything about the losing side being liable for the prevailing side’s legal fees.
sub
“Based on existing case law, Lebanon will lose that lawsuit on First Amendment grounds, and in the process will bankrupt their school district.”
Sad but true — those are bad decisions that make no sense from an originalist understanding of the Constitution.
“That’s the way a secular society is supposed to work.”
Who says we live in a secular society?
Ah, I love the smell of ipse dixit in the morning.
“are you so wedded to your “right” to pray”
That’s what baffles me the most; what, supposedly, are these prayers actually accomplishing? If they were really healing cancer-stricken children, it might be a whole different story.
Wannabe theocrats are thusly wedded by the love of their god — an absolute, selfless motivation. Nothing to do with dominance and power, oh, nothing to do with that all, and especially not with a convenient misinterpretation of the American governmental basis of church and state separation.
Folks hungry for theocracy tell us society is secular. Otherwise we would just think it was a society based on our right to choose to believe or not.
And don’t forget prayers would work much better in theocratic communities. It’s the secularists fault you know that there are kids struck down with disease.
Re-watch the video of the commencement address, and it’s perfectly clear: they’re proselytizing and establishing divisive tribalism — the most reprehensible and least defensible type of religious action a public official can take.
b&
But who will have won
when the lawyers have gone
from the Lebanon?
(insert guitar chords here)
Jerry, another similar story you may find interesting watch is going on in Carroll County, Maryland. There a judge told the local Board to stop making exclusively christian prayers to open their meetings. The Board defied the ruling and has kept doing it. The American Humanist Association (the plaintiff) initially say they would not file contempt charges after the first post-ruling praye, if the prayers stopped. But then the Board folk kept doing it and so now AHA has asked the judge to issue fines and penalties. Remains to be seen what will happen, but I expect the judicial hammer to come down sometime in the next month or two.
It’s a bit outdated, but here’s a link to the story.
What makes me sad is that education is poorly (either monetarily or in terms of proper allocation of resources) in many places, so bankrupting the school board is an unfortunate outcome and will hurt too.
Is there any way the *responsible people* can be sued?
Unlikely. IANAL but IMO the Principal was clearly trying to obey what he perceived to be the letter of the law. He perceived wrongly and broke the law, but it’s pretty hard to claim that he was intentionally breaking what he knew to be the law when he plays legalistic tricks like the moment of silence thing. That’s the sort of action you take when you think you know what the law says and you are trying to run right up against the limit of what it allows.
As for his bosses – what are you going to sue those individuals for? Deciding whether (and how) to respond or not to an FFRF letter is clearly part of their job function, and not responding is not illegal.
Oh, I think you’re being overly kind. I think he knowingly and purposefully violated the law. It’s one thing to say, “I used my moment of silence to pray, as I know many of you did, too.” It’s another thing entirely to do what e did. Before the moment of silence he said, “So while it would not be politically correct for us to have an official prayer this evening, I would like for us to have a moment of silence in honor of tonight’s graduates.” Then, after the moment of silence he said, “Thank you. And just in case you’re interested, during my moment of silence, I gave thanks to God for these great students, their parents, their teachers and for this community.” That sounds like a willful attempt to circumvent the law to me.
Not to mention that according to students there (both current and former) he has been doing even more overt things for years; it is not a one time thing. This guy is a snake. And, I’m sure that the board’s regular attorney is advising them not to get into a pissing contest over this.
As for suing the board members, they have a fiduciary responsibility to act in a prudent manner with respect to the taxpayer’s money. They are not doing that, especially if they have been advised that it’s a losing deal.
That is a reason to fire them. But I’m pretty sure the courts don’t want to open the Pandora’s box of saying that when an elected official makes a policy decision that costs their constituents money, that is legal harm. You want every politician in the country sued over every decision they make? Because I’m pretty sure every important policy decision ever made costs somebody money.
It just occurred to me that in some places there’s something called a “writ of mandamus”, or something like that, where a court tells another branch of government to enforce a law, already. 🙂
Maybe …
It makes a bit more sense to me that he really thought he was cleverly skirting the law, without quite crossing the line. He clearly did not coerce the audience into prayer by having a moment of silence. That part seems ok. Then he told the crowd what he did. Again, that might not seem coercive since he was not explicitly telling people what to do, only telling them what he did with his time.
I understand that he did cross a line, since as an agent of the state his sharing his preferences was coercive. But I suspect he did not see it that way.
The line he crossed has little to do with overt coercion. In fact, he crossed three lines — each of these:
1. The action must not result in an “excessive government entanglement” with religious affairs. (also known as the Entanglement Prong) 2. The action must not advance or inhibit religious practice. (also known as the Effect Prong) 3. The action must have a secular purpose. (also known as the Purpose Prong)
Cheers,
b&
Oh, I absolutely agree he Xed the line. I was just trying to see things in an error-prone way, like the Principal may have been doing.
Yes I tend to agree. His shenanigans look to me like an arrogant idiot who think he’s come up with some magical plan for obeying the law but still getting away with what he wants. Like, for instance, those sovereign citizen idiots who sincerely think that the fed really doesn’t have a right to levy taxes. They’re clearly wrong. What they’re doing is illegal. But it also seems clear that most of them are sincere – self-conned rather than con-artists.
Does the recent SCOTUS ruling in Town of Greece v. Galloway alter the landscape at all, legally speaking?
Two pieces of background: (1) I am an attorney, and (2) I am a pessimist. That being said, I don’t think Town of Greece changed much of anything for school prayer purposes; Kennedy’s majority opinion relied heavily on the notion that the town board invocations did not “coerce participation.” This is big to Kennedy; see Lee v. Weisman 505 U.S. 577 (1992) in which he said even nonsectarian coerced prayer is banned by the Establishment Clause. Right now, were a fairly typical school prayer issue (like that involved here) to come before the court, I have little doubt Kennedy would side with the “liberal wing” and prohibit it. That being said, could I see Kennedy rolling back such prohibitions in less standard school contexts (I’m thinking here largely of sporting events)? Yes. Yes I could.
Thanks for the insight!
So, this depends largely on how Kennedy rules, as usual. Is it your sense that he’d consider prayer at a graduation non-coercive?
IIRC, in at least one previous ruling (I can’t remember which one), SCOTUS made clear that schools were different from any other government function and required even more circumspection than usual.
No need to get obscure; Lowery’s actions flagrantly fail each of the three prongs of the Lemon test, when even a single failure is sufficient to establish illegality.
b&
I think the Town of Greece situation also failed a prong or two of the Lemon test. The prayers were coercive, were they not? The council would see who did or did not participate, right before they heard about issues that they have.
Yeah…that case plus Hobby Lobby could well be an indication that the conservative faction of the court is looking to tear down Jefferson’s wall completely and simply gut the First. If they do that, though, civil war will follow in under a generation as the various sects fight for dominance; the loss of civil liberties, though the cause of our worries, would be the least of them.
b&
The status of the Lemon test is really an interesting question right now; while the court did not expressly overrule it as asked to in McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005), it has not been one of the more vibrant of the court’s doctrines since. I think there is a lot of fear that at least the “secular legislative purpose” prong will be overruled in short order, given the right case. Were I taking a case before the court right now, I would certainly argue the Lemon test, but I am not sure I’d have a lot of faith in it.
Yeah…I think Hobby Lobby has shaken me a bit. I’m not so sure the Court is actually interested in protecting the Constitution any more, or even of appearing to do so; it seems most interested with carving out sectarian privileges for their fellow elites. I think they see the opportunity for short-term ideological victories, and don’t give a damn if they rip the entire country to shreds in the process.
Maybe they’ll wake up. But, if they don’t, there’s nothing we can or could do to stop them….
b&
Kennedy of twenty years ago would say any school function is coercive, and I still think he’d find the graduation context coercive–it’s an essential school function. Where I think he might be susceptible to the insanity of the Scalia/Thomas contingent would be in something like a football game, which might not be considered a “core element” of the educational experience (even though I would argue it is still coercive, to say the least).
Actually, the plaintiff’s legal fees and other costs in the Dover case were over $2 million. But, the law firm (a very large and rich one) generously offered to settle for less than half.
Not all law firms may be able to do that, so I hope that the Lebanon school district has plenty of spare cash.
The question to ask is, why isn’t it enough to pray in private; why the imperative to pray publicly especially when it is in defiance of the Constitution?
Because MY religion is true and proper, and YOUR religion is a silly mythic nonsense. If I were to tone down my prayers, I would be admitting that my religion and yours are on an equal footing, which CAN’T be true because of my first sentence.
I am trying to put myself into the head of a True Believer without dissing them. I guess to them it is not enough to be quiet and observant of constitutional details. One must be Loud and Proud about ones’ faith. By being publicly open about faith you are declaring to God that you are really committed. You really believe.
So being told by a bunch of secular liberals that you cannot do that in quite that way must seem deeply intrusive to what is an important part of their lives.
I suspect Bible verses such as this come into play with their thinking on these matters: https://www.biblegateway.com/passage/?search=Acts+5%3A29&version=ESV
That may be how some theists rationalize their behavior to themselves, but I think the real, deep-down explanation is the xenophobic one offered by moarscienceplz just above.
Perhaps also a bit of dog-pissing territory marking.
That is why in my view it is important to have religious believers come to see that their own beliefs are threatened by their insistences here.
I’m far from convinced that school boards, and even some administration & faculty, in red regions of the USA (I love it that conservative states are depicted as red instead of blue, and Democratic-leaning states vice-versa) are filled with public servants dedicated to the principal of universal public education.
This is war, satanic liberal secularism versus the Word, no external big government constraints recognized & sure as freedom none tolerated. No matter what courts rule, right is right, which means god belongs in schools don’t bother me with details about which god or what could possibly go wrong; I want it like it used to be, back when I imagine my fantasy actually existed.
And if schools suffer, maybe close, the kids are better off not receiving anti-god indoctrination in ’em anyhow, so there. God will provide something we like better, you’ll see.
Libertarians (some) are on board, too. They will love less taxes collected for public anything (it’s socialist redistribution of wealth, is all it is, and goes against the natural order). And social conservatives can finally be free to fill kiddie’s heads with teach city-on-the-hill fantasy without factual interference from liberal college educators with all their fucking facts.
liberal college trained educators, I meant to write
I think the only course open to the school board is to stonewall. If they responded, they will be seen as caving-in to outside groups, and several blog commenter said the board members would be elected out of office jot this happened. So to get reelected they must waste the school’s money.