See You In Court - December 2022

The members of the Nutmeg Board of Education were pleased earlier this year to partner with St. Mary’s Church, a Catholic church in Nutmeg.  St. Mary’s agreed to send employees to Acorn Elementary School to run “After the Bell,” an afterschool enrichment and daycare program.  For its part, the Nutmeg Public Schools agreed to advertise the program and to provide space at the school rent-free.  The parties agreed that families of students enrolled at Acorn Elementary School would have preference in admission, and that all activities would be secular in nature, i.e., no religious instruction or other proselytizing by staff members.

When the Board approved the program at the beginning of this school year, only veteran Bob Bombast voted no.  During Public Comment at the Board meeting last week, however, Board members were surprised when several speakers attacked the Board for what they claimed was an unconstitutional collaboration with a religious organization.

“Haven’t you dopes ever heard about the separation of church and state?” asked Carl Crabby, a resident who regularly criticizes Board members during Public Comment.

“Point of Order!” Board member Mal barked.  “We are not ‘dopes,’ and I will not sit here and take such abuse!”  Mr. Chairperson was startled, looked up from his phone, and told Carl not to make personal attacks.

Carl apologized for his comment, but then he continued to lecture the Board on why they were wrong to approve an afterschool program run by St. Mary’s.  Several other residents agreed with Carl and warned the Board members that they will inviting costly litigation by not maintaining a strict separation of church and state.

When Public Comment was over, Bob Bombast spoke up.  “This is why I voted against this arrangement.  I move that we rescind our approval of this program immediately!”

Board member Penny Pincher seconded Bob’s motion, expressing concern that the Board should have been more thoughtful before it partnered with St. Mary’s.  Bob Bombast thanked Penny for her comments, and he reiterated his opposition to any “entanglements” between the Nutmeg Public Schools and St. Mary’s.  But Board members Mal Content and Red Cent said that they were not persuaded and that the program should continue.    With that, Mr. Chairperson called the question, and the Board voted 3-2 to rescind its agreement to partner with St. Mary’s on the After the Bell program.

Mr. Chairperson asked Ms. Superintendent to inform St. Mary’s of the Board’s action, but Ms. Superintendent expressed confusion.  “Parents are relying on this afterschool program.  What do I tell them, and can St. Mary’s run the program without our help?”

Mr. Chairperson shrugged his shoulders and said simply “The Constitution is the Constitution.  Figure it out.”

Did the Nutmeg Board of Education make any mistakes here?

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The Nutmeg Board of Education made several mistakes here.  Taking action on a motion that was not on the agenda without following proper procedure was a serious mistake.  Similarly, under Robert’s Rules, there are special rules for rescinding or amending action previously taken:  a motion to rescind or amend action previously taken must either (1) be stated in full on the agenda for the meeting, (2) be approved by a two-thirds vote of those present and voting, or (3) be approved by an absolute majority of the board of education.  Moreover, a board of education cannot terminate a contract simply by rescinding its previous approval.

The main problem here is whether the Board’s vote to rescind approval of this program was required or even appropriate.  The First Amendment provides in part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ,” and school officials have historically felt the tension between these two clauses, as did Nutmeg.  Given recent rulings of the United States Supreme Court, however, it appears that such a program is constitutional.  Indeed, terminating such a program simply because a religious organization is involved may violate the rights of that organization.

Starting in 2017, the Court has ruled three different times that exclusion of religious organizations from government programs simply because of their religious nature is a violation of the Free Exercise Clause.  In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. __ (2017), the Court ruled that the rights of a preschool and daycare center affiliated with a church were violated when the State of Missouri rejected its application for a grant to upgrade its playground solely because the center was affiliated with a church

The Court extended this rule in 2018 to a program granting tax credits for donations to grant scholarships.  Espinoza v. Montana Department of Revenue, 591 U.S. __ (2018).  There, the Montana Department of Revenue had prohibited the use of such scholarship funds to attend religious schools.  However, the Court applied the neutrality principle articulated in the Trinity Lutheran Church case to rule that the exclusion of religious schools from the program solely on the basis of religion violated the Free Exercise Clause.

Finally, last June the Court applied the neutrality principle to require that parents be allowed to use vouchers provided by a program in Maine for their children to attend sectarian schools.  Carson v. Makin, 596 U.S. ___ (2022).  In communities in Maine that do not operate a secondary school (or contract with one to provide education to their students), parents receive vouchers to offset tuition charges at schools they choose.  Such parent choice was limited to accredited schools that are not sectarian.  The Court ruled, however that the State of Maine violated the free exercise rights of parents by excluding religious schools from this program.

Given these precedents, Nutmeg was not obligated to terminate its arrangement with St. Mary’s.  A similar arrangement with a private school or other organization would certainly be permissible.  Moreover, the agreement here expressly prohibited proselytizing activities.  Given those facts and these cases, St. Mary’s could now argue that the action of the Nutmeg Board of Education in terminating the program solely because it is a religious organization violated the free exercise rights of its members.

Finally, the Court’s fundamental shift on such issues is apparent in another case, also decided in June, 2022.  In Kennedy v. Bremerton School District, 597 U.S. __ (2022), the Court surprised many observers by holding that school officials violated the free exercise and free speech rights of a football coach who wanted to pray on the football field after games.  The coach had asked for “the opportunity to wait until the game is over and the players have left the field and then walk to mid-field to say a short, private personal prayer.”  Consistent with then-applicable precedent under the Establishment Clause, district officials denied that request and ultimately fired the coach for engaging in such prayer in violation of their directive.  The Court, however, ruled in favor of the coach, holding that his speech was “double-protected” by the Free Speech and Free Exercise clauses of the First Amendment.  We do not yet fully understand the implications of this case, but it is a cautionary tale about the dangers of reflexive reaction against religious activity in our schools.