Fargo football team demands prayer at playoff game

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 rdeucher@thomasmoresociety.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:

Bob,
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.

Related religion and sports: At St. Scholastica, the kicking coach wears a habit (MPR News)

  • Gary F

    Freedom from religion or freedom of religion? A whole five, ten,minutes at most? Are they forcing the general public to listen? Get over it and game on.

  • Ben Chorn

    Unfortunately people will consider any kind of a prayer ban a personal attack on their religion. Personally, I think as long as it is not mandatory and all religions/faiths are allowed to participate in their own way it isn’t a problem. I get that these are religious schools, but they belong to an organization that isn’t.

    Feel free to have a player-lead, optional, religious moment before a game but don’t have the coaches lead one, don’t do it over the PA system, and don’t make it mandatory.

    Of course once you start allowing Christian prayer you welcome the Satanists: http://www.seattletimes.com/seattle-news/brace-for-field-day-on-bremertons-50-yard-line/

    • Nick K

      “Of course once you start allowing Christian prayer you welcome the Satanists:” And when Satanists start running schools that will become relevant.

  • Serious question (b/c I’m not a constitutional scholar)

    Was this constitutional?

    https://www.youtube.com/watch?v=tJeNsPIC3vE

    • Nick K

      Probably. A federal court refused to block President Obama’s inaugural prayer. https://www.au.org/church-state/february-2009-church-state/people-events/federal-court-refuses-to-block-prayers-at

      • Nick K

        I did more digging. Michael Newdow challenged prayer and inaugurations and lost in the DC District Appellate court (Newdow v. Roberts). A reading of the case makes it seem unlikely that prayer would be ruled unconstitutional as Newdow was found to lack standing (it was clarified that he would lack standing in future inaugurations as well). The Supreme Court did not take up the case.

  • ec99

    Wasn’t it Jesus who admonished his disciples not to pray in public?

    • Nick K

      Sort of. In Matthew 6:5-6 Jesus says: “And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others. Truly I tell you, they have received their reward in full. But you, when you pray, go into your inner room, close your door and pray to your Father who is in secret, and your Father who sees what is done in secret will reward you”.

      • ec99

        Sort of? Looks pretty clear.

        • Nick K

          I stand by my “sort of”. I’m not a Biblical expert. I haven’t translated these from the original language and I don’t study theology. That being said, I can see two ways of reading this. One way is to read it as you have, as an admonishment not to pray in public. Another way to read to it is that it means don’t pray just so people might say, “what a nice prayer” or “how pious you are” or whatever. It can probably be read in other ways. Looking at the first verse of Matthew 6, I’d lean towards saying that my interpretation is consistent with chapter 6 of Matthew specifically and with the entirety of Matthew in general (5:14-16 for instance).

          • ec99

            The Matt 5-6 complex encompasses the Lord’s Prayer, the Sermon on the Mount, and instructions on prayer and charity. One may interpret them as one wishes.

  • deuce_orig

    Well this is a very disappointing story for this till-now loyal alumnus. Years ago – 1967 to 1970 – I played football for Shanley during the glory years of Sid Cichy. I distinctly remember that we had a pregame huddle on the field of the players wherein we always recited the “Hail Mary”. It was private to the team and there was certainly no involvement by the public address system. I am curious now as to when the administration at Shanley decided to impose a pre-game prayer on the other team as well as fans of both Shanley and its opponents. Unilateral? A decision by committee? A suggestion from the bishop? By going public, whenever they did, they intentionally “politicized” the prayer and made it an issue, where it had not been so before. For shame! Furthermore, the legal brief posted here is a disgrace, concluding as it does that Shanley’s constitutional rights are being violated. This claim is as bad as Citizens United, (wherein an organization is given constitutional rights of free speech without a requirement to disclose who – the money behind the PAC ads – is actually soeaking). The reality of Citizens United and the current claim of Shanley are both contrary to the original intent of our Constitution, which was only with respect to the rights granted to individuals.

  • Mike Worcester

    How does this contrast with the recently-discussed story on here about the h.s. coach in Washington state who was removed from his position for leading players in prayer? Sure, Shanley is a private, sectarian high school. Sure they can have expressions of their heritage on their grounds (anyone ever seen the iconography at Hill-Murray?). However they play in a league run as a public enterprise, much like our Minnesota State High School League.

    It should also be noted that the Thomas More Society is one that often wades into these types of conflicts on the side of organizations like Shanley. Maybe I missed it, but what prompted them to write their letter anyway? Were they contacted by a representative from the school?

    • deuce_orig

      What’s so egregious about H-M’s logo? Looks pretty vanilla to me.

      • I believe Mike may be referring to items on the campus at Hill-Murray and not the logo. Of course HM is a Catholic school so I’m not so sure what point is being made.

    • DavidG

      There was another private sectarian school that raised eyebrows and received complaints from parents when they omitted their regular season pre game PA prayer in an earlier round of the playoffs. The Forum covered that controversy last week,

  • auntiesmedley

    If you want to hold prayers in private, FINE. But over the PA?? Nope. Stop trying to force other people to participate in YOUR religion. Period!

    • Sue

      Well said. I am really tired of both sides for and against. Let the people who want to pray do so in private and don’t force others to participate. Problem solved.