Friday, February 28, 2003
Copyright © Las Vegas Review-Journal

3-2 VOTE: School board stands by prayer rule

The move could jeopardize federal funding to district

Disregarding the advice of their own attorneys, board members of the Clark County School District on Thursday refused to consider deleting a regulation regarding prayer at graduation ceremonies.

Administrators said the move could jeopardize $70 million in federal funding, and officials with the American Civil Liberties Union of Nevada said it could leave the district and individual board members vulnerable to legal action.

Board members Sheila Moulton, Ruth Johnson and Denise Brodsky voted not to take the first step toward eliminating a portion of a district regulation that says high school students, under certain conditions, may include an invocation or benediction at graduation ceremonies. The policy stipulates that the prayer would be led by a student volunteer.

"Our regulation, as currently written, is not constitutional and we need to change it," said Ann Bersi, the school board's attorney.

The board also sought and obtained an opinion from the state attorney general's office, which concurred that the regulation was not constitutional.

School District Attorney Bill Hoffman gave board members a similar opinion, saying the district must avoid school sponsorship of prayer.

"An invocation or benediction (at a graduation) would not be appropriate," Hoffman said.

By a vote of 3-to-2, a majority of board members present disregarded the advice of these attorneys. They said eliminating the regulation would hinder students' freedom of expression.

"This is the last bastion of recognition of a higher being left in our policy," said Moulton, who is the school board's president. "In good conscience, I can't support any action on this item at this time."

Board Members Mary Beth Scow and Susan Brager-Wellman were the only board members who supported deleting the policy, both saying they did so reluctantly. Board members Larry Mason and Shirley Barber did not attend the meeting.

"We're caught between a desire to protect public expression and the need to abide by the law of the land," Scow said. "It's a difficult question."

Superintendent Carlos Garcia said he understood the decision was a difficult one, but said it was also his responsibility to remind board members how much is riding on their action. Violation of federal law could cost the district its federal funding. The district received about $70 million from the federal government this school year.

"You would be jeopardizing our federal funding by taking this action," Garcia said. "As your superintendent, I have to alert the board of that possible result."

Johnson, who participated by telephone, said that perhaps the board needed to discuss how willing it is to accept the restrictions that come with taking funds from the federal government.

Brodsky agreed, and also questioned whether deleting the policy would violate another federal law -- the provision in the No Child Left Behind Act that prohibits teachers and administrators from restricting a student's individual right to religious expression.

"I think we always have a choice," Brodsky said. "If you don't stand for something, you stand for nothing."

Neither Brodsky nor Moulton believes that their refusal to delete a policy deemed unconstitutional violates their oath of office to uphold the U.S. Constitution. Moulton said the board will be looking for another means of compliance that allows the policy to stand.

Representatives of the American Civil Liberties Union of Nevada said they fully intend to pursue the matter with the school board. ACLU attorney Allen Lichtenstein said not only does the board action invite a lawsuit, but that it could leave board members open to personal liability.

"They may feel, in their arrogance, that they are immune to personal ramifications, but that's not true," Lichtenstein said. "Government officials have qualified immunity, but if they violate someone's civil rights by contradicting a well established law -- which a Supreme Court ruling is -- they lose their qualified immunity."

Gary Peck, executive director of the ACLU of Nevada, said he was aghast at the board's action.

"There can be no ambiguity about this," Peck said. "They were told what they were doing was illegal and they chose to do it anyway."