Rabbi Shapiro Makes Legal Case Against Flagler School Board Reviving Invocations at Meetings

A prayer or an invocation at a school board meeting is not like a prayer or an invocation at a county commission meeting or a meeting of the legislature, because impressionable children are usually present at school board meetings as they’re not at other types of government meetings. 

And school boards should be uniting and representing the community for all its diversity of beliefs and non-beliefs, not be divisive by highlighting one belief over another, no matter the perceived neutrality of the message.

Those were the two main points, backed up by a series of legal cases, that Merrill Shapiro, a rabbi by vocation and a member of the national board of Americans United for the Separation of Church and State, made to some 50 people Thursday evening at a Flagler County Democrats meeting. 

“If you value religion you should value religious freedom,” Shapiro said. “The idea is that we don’t want the government intruding on us and we don’t want to intrude on the government, we don’t want religious factions intruding on them. We’d all be better off if the government is here and the religious world is there.” 

Shapiro was addressing, in part, the continuing controversy over a pastor offering a surprise invocation at the top of the Flagler County School Board’s regular meeting in August. The pastor had been invited by Board Chairman Janet McDonald without fellow board members’ knowledge, or that of the superintendent and the school board attorney. (See: “Christian Prayer at Flagler School Board Breaks 5-Decade Precedent, Without Most Board Members’ Consent.”)

At McDonald’s urging, the board has since been debating whether to institute such an invocation at subsequent meetings, and if so, in what form and within what parameters. The board is divided, with two board members for, two against, and one — Colleen Conklin — unopposed to “neutral,” inspirational words, even if in the form of a prayer, but pending a review of how other counties approach the matter. Some counties around the state have invocations at their school board meetings. Many don’t. Flagler County hasn’t had them for over 40 years, the last one dating back to the early 1970s, a review of board minutes show. (See: “Disagreements Persist About Flagler School Board’s Religious Invocations Past and Future.”)

When the school board discussed the matter again at a workshop last month, Board Attorney Kristy Gavin’s examples of legal precedents had focused on invocations or prayers at government meetings in general. But the examples did not address the nuance between general government meetings–city commissions, county commissions, legislative bodies–and prayers at school boards. Courts, including the Supreme Court, have ruled that prayers offered by clergy are permissible at government meetings as long as government officials themselves aren’t leading the prayer, and as long as all points of view, including atheism or agnosticism, are permitted, if offered. 

But Shapiro presented cases that addressed the particular matter of school board meetings, contending that they’re different. 

He referred to a 1987 Supreme Court decision emphasizing the impressionability of school children: “The Court,” Justice William Brennan’s opinion stated at the time, “has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable, and their attendance is involuntary.” (The court ruled 7-2 against a Louisiana law requiring the teaching of creationism alongside evolution.) 

That case did not address the context of school board meetings, but a federal appeals court case addressing the Chino Valley Board of Education in California, in 1971, did, making an explicit distinction between types of government meetings. “The setting of legislative prayers—’at the opening of legislative sessions,’ where the audience comprises ‘mature adults’ who are ‘free to enter and leave with little comment and for any number of reasons’—only dimly resembles that of Chino Valley Board meetings,” the court ruled. “The Board’s meetings are not solely a venue for policymaking, they are also a site of academic and extracurricular activity and an adjudicative forum for student discipline. Consequently, many members of the audience— and active participants in the meetings—are children and adolescents whose attendance is not truly voluntary and whose relationship with the Board is unequal. 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. The presence of large numbers of children and adolescents, in a setting under the control of public school authorities, is inconsonant with the legislative-prayer tradition.”

And in fact when the Flagler Beach pastor offered her prayer at the Flagler school board in August, the student who had just sung the National Anthem was two feet from her (hands clasped), the four Junior ROTC students who had marched in for the presentation of colors were standing at attention by the dais, not free to leave (at least no one told them, or anyone, that they were free to leave: the school board chairman had asked that all stand for the prayer, the pastor afterward commanded all to sit), and numerous children of various ages were in the audience, not all of them accompanied by their own parents or guardians. 

“School board distinguishes itself from deliberative bodies because it is much more likely that there are going to be impressionable kids at school board meetings than at county commission meetings,” Shapiro said. “I suspect that’s true in our county as well. Many more children are there at school board meetings and are impressionable, and will gain a view of religion and government entanglement in religion that is incorrect.” 

Reigning law on prayers at public meetings is considered to be a 2014 case that Shapiro’s own organization took to court, that of Town of Greece v. Galloway. Shapiro’s organization lost, he said, “but there were statements in the decision, in the majority decision, that were favorable to us.” The case, decided by a 5-4 court, establishes strictures within which prayer may be permissible even as it emphasised a pluralist approach. 

Shapiro also noted the 2016 case of the Collier County School Board in Florida, where members of the community had petitioned the board to start its meetings with invocations. The board elected against doing so. “Citizens pushing the idea didn’t make a persuasive case for changing the current practice of having a moment of silence at the start of meetings, nor did the two board members who voted in favor of an invocation present a convincing argument for change,” the Naples Daily News wrote of the decision. “It became a matter of wanting to revise the current practice for some assumed gain, with no demonstration it needed to be changed or that the moment of silence isn’t appropriate. The divided board has enough other issues to argue about without adding this one to the equation.”

Shapiro’s discussion of Flagler’s invocation issue was part of a larger presentation about Americans United for the Separation of Church and State, and about the use of public dollars for private, religious education in private schools in Florida, through the state’s government-administered tax and scholarship schemes. Shapiro presented examples of the sort of dubious, at times outright false, science and history that some of those private schools teach with state dollars–including claims that slavery did blacks a favor by converting them, that Islam is worse than fascism, or that the planet was created a few thousand years ago–before turning to issues more specific to Flagler. 

Capping his presentation, which was aided by slides, he showed the picture of the five Flagler County School Board members, positioning each one on his or her own side of the invocation controversy: Andy Dance and Trevor Tucker opposed to re-starting invocations, McDonald, Conklin and Maria Barbosa on the other side.

“Colleen Conklin liked the neutrality of it, the invocation did not mention God, by the way, did not mention Jesus,” Shapiro said of the August invocation, which is not quite accurate: the pastor mentioned God explicitly twice and referred to God indirectly six times, while also mentioning the concept of grace twice. (Hear the full invocation here, or see the transcription at the foot of the article.) “And those of us of different faith communities have a different view of grace,” Shapiro continued. “Thus the invocation becomes divisive. Some are for it, some are against it, and the purpose of the school board is to unite us as one community, not to divide us. And so even that is very difficult to frame an invocation that’s entirely neutral.” 

Kristy Gavin, the school board attorney, had cautioned the school board about opening the way to faith-based invocations, which would open the way to unintended consequences. Mike Cocchiola, one of the Democratic group’s more militant members, illustrated how when he said, at the end of Shapiro’s presentation: “I wrote an email to the school board and I said to them if you do that one more time,” meaning an invocation, “I happen to know a Wiccan, and I will bring that person to the school board and demand equal time for that. I haven’t heard back from them but I meant it because I do know one.” Wiccans are associated with paganism and witchcraft. 

The meeting was attended by two Bunnell city commissioners–Jan Reeger, who is a member of Americans United’s local chapter, and John Rogers. The Bunnell commission since 2011 revived the practice of saying outright Christian prayers at the beginning of its meetings, and until recently had its own commissioners do so, in clear and repeated violation of law. In recent months the commission has invited members of the clergy to offer a prayer, but when no such person is available, the prayer is again offered by a commissioner, during the meeting. Reeger has been trying to change the policy. Rogers favors prayers at meetings. He was attending Shapiro’s presentation to inform himself of the rabbi’s perspective.

The text of the prayer Jeanine Clontz, a pastor at Flagler Beach United Methodist Church, offered at the Aug. 20 Flagler County School Board meeting, at Chairman Janet McDonald’s invitation. The text does not include a second segment where Clontz advertised the services of her church and ministry, though that pitch is included in the audio attachment:

“Will you bow in prayer with me. Gracious and loving God, we call on you to surround all of our schools, here locally and around the nation, with your protection this year. We pray for all the students, the educators, the administrative personnel, the resource officers, the school board, the food service, the janitorial staff, the bus drivers,m the crossing guards, the parents, and all who work with our schools, that they have a safe and productive year free to teach and learn without fear and without acts of violence on our campuses. Protect the students from gossip and bullying. Make students know that they are a person of worth. May the educators be filled with your grace as they help all the students to thrive, and to grow and to mature into the people that you have created them to be. Oh God, we ask this in your precious name. Amen. You may be seated.”

Note: Shapiro chairs the FlaglerLive Board of Directors. Board members do not control, review or direct news and editorial content.