Doe v. Tangipahoa Parish Sch. Bd., No. 05-30294 (5th Cir. July 25, 2007)
The U.S. Court of Appeals for the Fifth Circuit (LA, MS, TX), sitting en banc (with all active judges hearing the case), has ruled that the plaintiffs in a suit challenging a Louisiana school board’s practice of opening meetings with an invocation lacked legal standing to maintain their suit. A taxpayer filed suit challenging the board’s practice. For the district court’s consideration, the parties jointly submitted four of the prayers offered at board meetings, each of which was Christian "in tenor, if not in fact." Prior to the district court’s decision, the board considered but rejected a policy that would have permitted only school board members to begin meetings with a "brief non-sectarian, non-proselytizing invocation to solemnize the occasion." As a result, the board’s unwritten practice of selecting speakers to give prayers of their own choosing remained in effect. The district court held that the prayers in question fell outside the legislative prayer context that the U.S. Supreme Court had permitted in Marsh v. Chambers, 463 U.S. 783 (1983) and violated the Establishment Clause under Lemon v. Kurtzman, 403 U.S. 602 (1971). A three-judge panel of the Fifth Circuit split three ways on the resulting appeal, but this decision was vacated when the appeals court decided to hear the case en banc.
The Fifth Circuit rejected the argument that standing to challenge invocations as violating the Establishment Clause can be "based solely on injury arising from mere abstract knowledge that invocations were said." Instead, the court found that the plaintiffs were required to show they had been exposed to the invocations given at the board meetings. The court refused to accept facts "merely asserted or inferred" in determining whether the plaintiffs met the judicial definition of standing, stating that "particularly in the standing context … facts must be proven."
Doe v. Tangipahoa Parish Sch. Bd., No. 05-30294 (5th Cir. July 25, 2007)
[Full opinion]
[Editor’s Note: Background, including summaries of the earlier decisions and resources on school board invocations, is posted starting below.]
[NSBA School Law pages on Doe v. Tangipahoa Parish Sch. Bd.]