Ban on prayer during post-season games at private high school is unconstitutional, attorneys say

FARGO, N.D. (Christian Examiner) – A photo of two football teams praying on the field circulated on Facebook has prompted religious North Dakota high schools to question whether they should be allowed to pray over the loudspeaker, a point that culminated in a letter to the high school sports governing body requesting just that.

Now, attorneys with the Thomas More Society have written a letter on behalf of Shanley High School, a private Catholic school, pointing out the current ban on prayer may be a violation of their constitutional rights.

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.

School administrators are reluctant to continue opening without prayer, Michael Smith, superintendent of the Saint John Paul II Catholic Schools Network, told The Forum.

"We really wanted to make a formal request to the high school association and let them know there is a different perspective, and we wanted to hear their take on that," Smith said.

Adding that the letter is not the first step in a lawsuit, Smith said, "Prayer is an important part of what we do, and to be able to do it at all of our home events throughout the year is something that we really cherish."

PRAYER ON THE FIELD

The photo that has schools so riled up shows players from the public school Kindred and the private St. Mary kneeling together on the field after a football game.

Local parent Mark Armstrong, who took the picture, posted it to Facebook with a statement saying, "Last night the North Dakota High School Activities Association said no public prayers before the game. So the kids from both schools knelt after the game!"

In fact, the association has not introduced any new rules about prayer. As Matt Fetsch, executive director of the state activities association, explained to the Bismarck Tribune, prayer may not be delivered over the public-address system at a postseason game because they are hosted by the association.

"We're a public entity, too, so we have to adhere to those state and federal laws," Fetsch said.

Shiloh Christian School did not pray over the PA system on its Oct. 24 game for that reason, the Bismarck Tribune reported, an omission that excited comment among attendees used to praying before games.

Gerald Vetter, president of Light of Christ Catholic Schools, said St. Mary's has observed the association's rules about refraining from prayer over the PA.

"We have not had any conflicts or conversations with the North Dakota High School Activities Association," Vetter said, adding. "There was no reason to," because it was all right to conduct prayer on the field, individually, or at the flagpole at postseason games hosted by the association, as the school has done before.

The players were not praying in protest; the public school players joined the private school players spontaneously, St. Mary's school chaplain said.

LETTER OF REQUEST TO PRAY

The letter from Shanley to the state association stems from a desire to be able to continue their custom of prayer even if the association is said to host the game.

"Shanley is not a governmental actor," the letter pointed out. "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."

The Thomas More Society attorneys claim because the school is a private actor, it may pray at its games: "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 letter said it was impossible to mistake Shanley for a public school because the field bears the emblem of a gigantic cross.

The association released a statement on Nov. 6 stating they would soon have an answer for the school. "Because this request involves an issue of constitutional law," the association said, "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."

Smith is seeking permission to pray before the game because prayer is part of the school's identity. "We feel it's a big part of who we are," he said.