Shanley High School, a Catholic school in Fargo, has advanced to the North Dakota high school playoffs, and that’s a problem for some people because the team wants to hold a prayer.
A controversy started last week after a picture of a prayer with players in the Bismarck St. Mary’s and Kindred football game circulated with the suggestion that the North Dakota High School Activities Association had banned such displays of religion.
Generally speaking, it doesn’t.
The exception is during playoff games when prayers are banned only if they’re said over a public address system.
Shanley plays Central Cass this week at its own private field and it wants to do just that.
Today, an attorney for the the Thomas More Society, representing Shanley, told the NDHSAA that the ban is unconstitutional.
Here’s their full letter:
North Dakota High School Activities Association
Matthew Fetsch, Executive Director
Justin Fletschock, Assistant Director, Football
PO Box 817 Valley City, ND 58072
Re: Private Prayer at Shanley Playoff Football Games
Dear Messrs. Fetsch and Fletschock:
We represent Shanley High School (“Shanley”), which is a private Catholic school in Fargo, ND. Shanley’s football team has advanced to the playoffs this year and the school has sought our help after being informed by the North Dakota High School Activities Association (the “Association”) that it would not be permitted to say a prayer over its own PA system, at its own football stadium, while hosting the playoff game in which it has earned home field advantage.
Specifically, our client has informed us that your position is that permitting prayer before the football game is prohibited by the Supreme Court’s decision fifteen years ago in Santa Fe Independent School District v. Doe. 530 U.S. 290 (2000). There, the Court ruled that a public school’s framework of permitting students to vote on whether to pray before football games, and vote for which student would offer the prayer, still bore the imprimatur of official, government speech, and as such violated the Establishment Clause by endorsing religion. Id. at 313 (noting that the invocations were “authorized by a government policy and t[ook] place on government property at government-sponsored school-related events”).
Santa Fe is certainly binding on public schools when it comes to the question of prayer before sports games. However, the case is completely inapposite here. Shanley is not a governmental actor. It is a private school, with a religious identity. When it hosts sports events, it does so as a private actor, and its religious expression cannot legitimately be characterized as that of the state.
It appears the Association recognizes this, having permitted Shanley to offer prayers over its PA system prior to all its regular season home games.
However, our understanding is that the Association’s position is that playoff games are “sponsored” by the Association itself, and that that “sponsorship” somehow converts Shanley’s football North Dakota High School Activities Association field into state property and Shanley into a state actor. This “sponsorship” is illusory; in all material respects, Shanley will be hosting the game exactly as it does in the regular season—it will, for example, run ticket sales, organize and sell concessions, provide an announcer to announce the game, and provide down markers, for example.
Under Supreme Court precedent, Establishment Clause violations in the nature of endorsement of religion arise when a “reasonable observer” would view the speech as that of the government or endorsed by the government. See, e.g., Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780 (U.S. 1995) (O’Connor, J., concurring). As a general matter, however, “courts considering Establishment Clause challenges do not inquire into ‘reasonable observer’ perceptions with respect to [expression] on private land.” Salazar v. Buono, 559 U.S. 700, 720 (U.S. 2010). Even accepting, arguendo, that the Association’s position of “sponsorship” turns Shanley’s football field into public property for the purpose of playoff games, “the reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious display appears.” Capital Square, 515 U.S. at 780.
To every player, student, parent, and other participant or attendee of this game, it appears identical to every regular season game. They will see Shanley representatives selling tickets, they will hear a Shanley representative making the announcements, they will purchase concessions from Shanley representatives. And they will be looking down on a massive Christian cross, featured in the Shanley crest, which is emblazoned in the center of the field at the fifty-yard line. Therefore, it is our opinion that the distinction between the regular season and playoffs has no merit in supporting the Association’s assertion that it is required to treat playoffs differently in order to avoid an Establishment Clause violation. In short, no one attending a football game at this proudly Catholic high school will mistake it for a courthouse, city hall, or public high school.
Additionally, based on our preliminary review, this prohibition is a violation of the Free Speech and Free Religious Exercise rights of the school, as a private and religious entity. The Supreme Court has clearly held that it is unconstitutional to require private entities to give up their religious identity in order to participate in government sponsored programs. See, e.g., Rust v. Sullivan, 500 U.S. 173, 197 (U.S. 1991) (noting that the Court’s “‘unconstitutional conditions’ cases involve situations in which the Government has placed a condition on the recipient of the subsidy . . . thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program”).
Here, Shanley’s identity as a private actor, with a religious identity, gives it the right to engage in religious expression on its own property. A policy by the Association forcing Shanley to give up that right in order to participate in a merit-based sports post-season requires the school to choose between participating in a government activity, which it has earned, and engaging in the speech rights that are protected by both the United States and North Dakota Constitutions.
Therefore, we are writing to request that you suspend the prohibition on prayer for the playoff game at Shanley this Saturday, November 7. We urge you to respect Shanley’s constitutional rights at this time, as you have done all season leading up to this point. We look forward to working with you to protect the rights of all the students and schools who participate in activities under the auspices of the Association.
Please contact us at 312-782-1680 or by email to Rebecca Deucher, Legal Assistant, at firstname.lastname@example.org. We look forward to your response.
Very truly yours,
Peter Breen Jocelyn Floyd
Special Counsel Associate Counsel
CC: Todd Burianek, Burianek Law Office, 53 West 5th St, Grafton, ND 58237
Officials with the North Dakota High School Activities Association have not yet returned a message from NewsCut, but Justin Fletschock, an assistant director, told Forum Communications that while he had not yet seen the letter, a playoff game is a public game even if it involves private schools because it’s hosted by the NDHSAA.
Update 1:02 p.m. Statement from Matthew J. Fetsch, executive director of North Dakota High School Activities Association:
The North Dakota High School Activities Association has received a letter from the Thomas More Society, requesting prayer over the public address prior to the Shanley High School vs. Central Cass High School football playoff game on Saturday, November 7, 2015. Because this request involves an issue of constitutional law, it has been forwarded to NDHSAA Legal Counsel for review. The NDHSAA is taking the request seriously and anticipates a response as soon as possible.
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