letter to ndhsaa

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THOMAS MORE SOCIETY A National Public Interest Law Firm

19 S. LaSalle | Suite 603 | Chicago, IL 60603 | www.thomasmoresociety.org | P: 312.782.1680 | F: 312.782.1887

“Injustice anywhere is a threat to justice everywhere.” – Rev. Dr. Martin Luther King

November 5, 2015

Via email and facsimile North Dakota High School Activities AssociationMatthew Fetsch, Executive DirectorJustin Fletschock, Assistant Director, FootballPO Box 817Valley City, ND 58072Email: [email protected]

[email protected]@ndhsaa.org

Facsimile: 701.845.4935

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 itwould not be permitted to say a prayer over its own PA system, at its own football stadium, whilehosting 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 thefootball 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 wouldoffer the prayer, still bore the imprimatur of official, government speech, and as such violated theEstablishment Clause by endorsing religion. Id. at 313 (noting that the invocations were “authorized bya government policy and t[ook] place on government property at government-sponsored school-relatedevents”).

Santa Fe is certainly binding on public schools when it comes to the question of prayer beforesports games. However, the case is completely inapposite here. Shanley is not a governmental actor. Itis 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 PAsystem 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


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North Dakota High School Activities Association November 6, 2015

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field into state property and Shanley into a state actor. This “sponsorship” is illusory; in all materialrespects, 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 providedown markers, for example.

Under Supreme Court precedent, Establishment Clause violations in the nature of endorsementof religion arise when a “reasonable observer” would view the speech as that of the government orendorsed 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 consideringEstablishment 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 bedeemed aware of the history and context of the community and forum in which the religious displayappears.” Capital Square, 515 U.S. at 780.

To every player, student, parent, and other participant or attendee of this game, it appearsidentical to every regular season game. They will see Shanley representatives selling tickets, they willhear a Shanley representative making the announcements, they will purchase concessions from Shanleyrepresentatives. And they will be looking down on a massive Christian cross, featured in the Shanleycrest, which is emblazoned in the center of the field at the fifty-yard line. Therefore, it is our opinionthat the distinction between the regular season and playoffs has no merit in supporting the Association’sassertion that it is required to treat playoffs differently in order to avoid an Establishment Clauseviolation. In short, no one attending a football game at this proudly Catholic high school will mistake itfor a courthouse, city hall, or public high school.

Additionally, based on our preliminary review, this prohibition is a violation of the Free Speechand Free Religious Exercise rights of the school, as a private and religious entity. The Supreme Courthas clearly held that it is unconstitutional to require private entities to give up their religious identity inorder 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 theGovernment has placed a condition on the recipient of the subsidy . . . thus effectively prohibiting therecipient 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 inreligious expression on its own property. A policy by the Association forcing Shanley to give up thatright 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 playoffgame at Shanley this Saturday, November 7. We urge you to respect Shanley’s constitutional rights atthis 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 theAssociation.


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North Dakota High School Activities Association November 6, 2015

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Please contact us at 312-782-1680 or by email to Rebecca Deucher, Legal Assistant, [email protected]. We look forward to your response.

Very truly yours,

Peter Breen Jocelyn FloydSpecial Counsel Associate Counsel

CC: Todd Burianek, Burianek Law Office, 53 West 5th St, Grafton, ND [email protected] (via email only)

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