valley unified school board specifically is appealing and only appealing the judgment as it pertains to the prohibition of permitting the invocation policy from being implemented to the extent that that the judge issued a judgement and an injunction there the school board does not challenge the district court's legal finding pertaining to the stated bible readings and policy at any time yes your honor i would assume that would be potentially possible however i don't believe that in cases past one courts have looked at actions where a legislative body have taken to address a concern that the courts necessarily just throw it out because of the potential that it might be rescinded but it doesn't make the case new right it doesn't make finding of the district court in the injunction as it pertains to the bible reading and and so called proselytisation by two members of the board frankly it was mostly one member of the board a minority  that did make those statements and so what we have in front of us today is the legal question of whether the legislative prayer case from march and from galloway apply in the school setting or is this a school prayer case and we contend your honour's that this is absolutely a legislative prayer case the school board is a legislative body as we've identified  california code because when a government government code section fifty four ninety five two says that the governing body of the local agency is a legislative body and and the code section just prior to that fifty four ninety five one defines a school district as a local agency and the fifth circuit is the only circuit who has that has addressed the question of whether or not a school if you're position is that it's an absolute right no matter how much profit a thing goes you can consider that when you look at the are i believe that there is there's there's a mistake that was made in the district court and in our opposition's briefing that tries to conflate but you're not appealing that we're not we're not we're not appealing the the legal finding that there was proselytizing or bible readings certainly there was bible readings so how yes you're on rhyming you're not appealing but but but when does this court takes a look at this t court can look and see that the invocation policy was adopted independently entirely independently from what the what one member of the board who read bible vers periodically and often and a second board member good it on occasion and and what happened in those instances i would like to direct the court's attention to a couple instances to show why these should not be conflated together why the court should look at the invocation policy as standing on its own apart from what a couple individual board members who don't represent the majority of the board to individual board members don't make policy so how can we do that when and the district court was looking at the totality of the facts including the bible readings of proselytising conduct and it entered the decision it entered so you're asking us to consider less facts in the district or consider and what do you ultimately asking us to do who are to reverse a district court where what do you specifically asking us to do well i would ask this court to  find that the invocation policy is constitutional and to reverse the district court's injunctive order as it relates to the invocation policy only however if this court agreed with me that that the aspect of bible reading proselytisation is moot that could also be dismissed but that is not of much concern the majority of the school board here frankly the entire school board voted and specifically said we want to appeal the invocation policy only and i'd like to address this issue of i'm not asking this court to say we're not going to consider all of the facts in this case not at all i'm asking this court to take a look at the at a couple examples virtually all of the problematic statements the religious statements whether it be bible reading or all of those statements occurred hours after it typically hours after the invocation after the prayer and let me give an example the minutes from june twenty seventh two thousand and thirteen i direct example that has even greater distance on the in the minutes from october seventeenth two thousand and thirteen the prayer occurred at approximately seven o five direct the court's attention t invocations at school board meetings are embedded in the history and tradition of our country which is sort of the rationale for the the cases martian town versus reference we were not counsel of record in the district court but as i see in the record the only evidence of a longstanding practice is in the invocation policy itself where in the school board says that it is maintained or excuse  they cite to a similar law review article that we cited to buy a miss wit that goes through a long history and identifies a significant history of invocations in but i think important from a legal perspective is that the town of greece case articulate clear position that it is what is in the fabric of legislative practice in our history as a country not just in the city council setting but what occurred a big test is whether or not the invocation policy follows the longstanding practice that  that our country has had as it relates to state legislatures and congress and if we don't i don't think we necessarily analyze it that way i don't think we necessarily say if it's if it's a legislative body no matter what else goes on it gets a legislative exception and if it's a school prayer at public school then prayer is not allowed i mean i don't think we this is  i don't think we need to say this is an either or test i think we have to look at all the circumstances at the school board and what it does and who is there so following up on that in is you violate school board students it was a student on the board students attended things that implicated students were involved in really the imprimatur of the school district applied to what the school board did and to me that's different then when we're talking about town council meeting such as in the town of grease and other activities and so when i looked at these facts that the district court found it it seemed to be that sort of looked at this particular facts and these are pretty egregious facts and so yes you really are asking us to ignore ignore the facts if we were to find that the invocation policy is in fact constitutional rather than unconstitutional so i'm trying to understand how we could do that well appreciate that your honor and i the invocation policy was was adopted by a majority of the board if if the question of whether or not there was policy maker liability in this case and i'm an l i think that it would be difficult to find a school board liable for the statements made by one individual in particular and who's on the board who doesn't represent a majority and and also i think it's really important to point out that we're dealing with elected officials who are sitting on the diocese who have the ability and freedom actually under under california law there's a government code section that actually references the fact that members of the legislative body have the right to speak and address issues and to make brief announcements and report on their own activities that's a government code section five or nine five four point two subject subsection evaluation every one of the school board members could get up at the beginning of the meeting the end of the meeting cut as much religion as they want no i'm not saying that you're on and that's why the school board tried to do what they could as reasonably as possible to adopt a policy that would limit the be this religious speaking cause under god jesus christ he was representing to the audience to the schoolchildren to everyone but that was the goal of the school board well your honor noted nobody from the school board so you know that's not our profit you know they did when they adopted the policy that limits his speech absolutely and the majority of the board did that and i would like to also point out that when those statements were made hours after the invocation and there's no evidence even schoolchildren were present at that point in time as well i would i see my time is going to come short here so if i'm going to reserve enough time to for the school board itself or the legislative body ok then why so much of the important business of the board is conducted before the invocation i think not inspired and then when they make their disciplinary decisions and all of the activity that goes on before the prayer your honor it's been a tradition and practice of of having these in locations at the beginning prayer and they don't have that inspiration that desire of unity when they make all those other decisions your honor may very well be that after they get out of close section and close session they need to have that prayer for so they do have that board members to do their job properly it's hard to understand why that comes after they first have a session where they do so many important things that affect the students you know including exp and all of those activities and they don't seem to want them to have that inspiration or think that it's important that they have them before they make all those decisions i appreciate your point your honor however there is nothing in the record as to suggest that they don't even that they don't think it's important prior to the closed session but we have to go back and take a look at where the u s supreme court is articulated in the town of  greece and galloway case when the public sector the same thing happens in town meetings where there's a closed session they come out and then they have their public meeting and just prior to the public meeting the invocation occurs that has been approved by the u s supreme court and so i understand what you're saying well but i don't believe that sense of congress i mean this is where this all started the congress because congress doesn't go out make take a vote and then come out and have a prayer they have prayer before congress is convened and the same thing with the state legislature the prayer is not after they act and do their job and then they get skied me that ruben versus city of lancaster and this ninth circuit declared that the invocation policy that the school board has adopted the same invocation policy was constitutional it is not a legislative body categorically school boards are different they are different in purpose they're different in function they're different in structure the district court was correct to find that but you know valley unified school district board of education is not a legislative body such that march in town of greece and the legislative a prayer exception would apply in those cases legislative bodies have a primary function of an acting laws rules policies that affect a broad spectrum of the population within their jurisdiction that is all a legislative body does a school board does far more sure it will enact rules it will enact policies they are designed for one primary and important purpose and that is for the education of children they are not answerable to those children those children do not elect them the children have no voice these are members of the community who are elected by people to whom their decisions only tangentially apply moreover a school board does more than just enact policies as the court noted in the record demonstrates the school board also acts as a law enforcement body it determines have the policies have the rules been violated the school board also meets out punishment it determines what a student may or may not do what the consequences of possible violations are and whether or not that student can enjoy the public education system in the district that is a far cry from the legislative bodies that marsh and town of greece have carved out the narrow exception for the legislative exception for legislative prayer it's a narrow exception there is no evidence below that the type of legislative prayer that has historically been permitted in our nation for those type of legislators has any application to a school board co counsel i understand that you wanted to do to come out and have a bright line role if you're a school board you're not entitled to do invocation seventh cause and lemon is the appropriate test and when the court looks at lemon i think the court has to look at not just what does one particular school board do but what is the purpose and and structure what is that  the essence of a school board in and of itself because that's the starting point appellants want to try to parse the school board as if it's not an integral part of the school setting i think council  is that for the purposes of california's open meeting act the brown act school boards are considered legislative bodies so that they must comply with the open meeting act the fact that the legislature harve out the phrase for school boards as opposed to just in general legislative bodies indicates that the legislature of california recognizes a distinction for school boards so it's not school board the only analysis is that the court finds it's more like i think the phrase it's more like into the category of a state legislature then a school classroom so canada i'm not sure it would create the circuit split your honor and here's why because mccarty specifically says that it's being decided on its narrow facts and it compares itself to the third circuit and the sixth circuit  cases that were decided before the town of briefs and stated that the reason those cases were often held that the school board indications were not appropriate where because of the distinct facts in those cases as a pool opposed mccarty so the circuit split would be that the fifth circuit says there's not a categorical approach where i'm saying there should be but not under m analysis the chino valley unified school district board of education policy would still fail our facts show as the court noted that there was much more involvement of students in these board meetings we have a sitting board member who votes that is a student we have students that are giving the pledge of allegiance moments before or after the invocation we have students performing we have students coming to get accolades to get there on arms but more important we have the almost compulsory mandatory attendance at the closed session for disciplinary purposes these are facts that are not at all present in mccarty mccarty involved most notably student expression it was the students that were giving the prayer during an open expression period of time this was not a policy for adults or the board to give a prayer this was for the students to express whatever they wanted within the limits  stricter and censor has been granted to my knowledge it hasn't been granted i believe the petition was filed over the summer and the same in law and there's a supreme fission pending as well correct ok us not to so yes we think that categorically school boards are different and should be found different in the sense that they are an integral part of the school itself and can't be divorced well certainly not for long because that's not even a school case but for mccarthy i don't think it's necessary for the court to delay the decision and in fact i think it would be instructive and helpful to the supreme court to see what other particularly because justice kennedy has in leavers weissmann emphasized again and again the difference that it makes when we are talking about a public school setting and i think that because of the egregious facts in this case it presents a different color as to the problems that a public school setting for the results i think whether the court finds that we are correct that there is a categorical approach that should be applied or fact specifically i think that judge brinn awls decision and judgment should be affirm test but again only looking at the fact specific all establishment clause cases require a very delicate factual analysis but again we are talking  category of school versus legislative body and that is the distinction that will make the difference as to the further analysis because we don't even get to is there a legislative prayer exception and using the historical analysis rubric for the case instead we look at it as a school prayer case and we go through the analysis of the facts under that setting however even if the court w very generic solemn nice thing event the court noted this invocation does not take place at the beginning of the meeting it takes place in the middle of the meeting at the beginning of the open session had the board truly wanted to solomon eyes the meeting for itself it would have put that prayer that invocation in the closed meeting instead it is it is it's disingenuous for the board to argue that the directed only to the board members the adults because the board members include a student who represents the students of the district that student boats at the meetings the fact that the student doesn't have to attend every meeting it's really irrelevant to the analysis so even under mccarthy's standard judge brinn all came to the correct decision under these fa but it's of these facts that show why the categorical approach is the more appropriate analysis because our facts demonstrate you what if they decided to make the school board meetings and the sceptic what have they decided that they were not going to have a student member were not going to give out awards or honors and were not going to have i would have to have an california law to change the meeting to that extent your honor it is not an issue i looked at i imagine that a legislative body could craft legislation regarding a school board in that way but the problem comes back to this structurally what's the function of the school board it is again whether the students are there or not isn't really dispositive whether or not they receive awards at the board meetings isn't dispositive these are individuals who the children recognize as the authority over their education and they have no say to oppose object to any of those decisions because they're not the one selecting the board you can't even if you were to structure the meeting differently let's assume i mean i don't see what the problem would be in just having a straight school board system you just heard of regulars who board meeting and it was everybody came was interested in coming and there was no mention of religion except in the prayer at the  very beginning of the meeting would that be all right i still think no because one yeah because what we're talking about is the the government to the students laws of broad application not specific to the students so what we have is a public meeting where again the government of the students is not engaging the students and they are yet making decisions that affect the students very daily lives and so once again we're trying to take the school board in a hypothetical and place it into a legislative context that just doesn't fit because regardless of what happens during the meeting school boards are still tasked with disciplinary action so even though that may not happen in this meeting the students know this is the board that decides my fate this is the board that decides if i violate a policy this is not just the board that in x rules for me this is the board that tells me i've done something wrong and punishes me for that you can't separate the structure of the school board from the school setting even if you change the nature of the meeting but let me ask a related different question the district court's decision says as follows students are in regular attendance we're told that the chino valley school board meetings one student representative is a member of the board and is responsible for representing the students by these interests other students attend board meetings to receive awards for their compliments publicly celebrate their extracurricular successes and perform alongside their classmates seen preparations for the board or regular feature of the agenda and immediately follow the opening let's assume that you know valley wanted to change the way in which students were involved so that it's just the opposite of whatever it how would that happen and could it happen i believe that it would require some legislation by the state legislature because the education code does testify very specifically what the school board meetings must include and how they must be funky how much how they must function each district then has some discretion within that this is not a legislative body that fits the marsh town of greece narrow exception and we have to remember even town of greece says that this is a narrow exception it does not the reason that applies in this type of setting is because there is the similarity between the town council the state legislature congress and it recognizes and emphasizes that we're talking about mature adults being affected in those gatherings not students not children who are there in front of the governing body of their daily lives and their education your honour's my time is almost up unless the court has any further questions i'll submit thank you very much will give you three minutes you know thank you and i will do my best to make sure that is your honor the position of the freedom from religion foundation is frankly extreme it is such that  invocations would be permitted in any school districts in and the argument that students are present and or scuse me that the decisions of the school board affect students i think is somewhat erroneous as well because the decisions of city council may have an even greater effect on on a student whether or not they permit you know a miniature golf facility to locate down the street or some whether they allow the recreational facilities to be expanded for their soccer clubs so i think that it's extreme to make the argument that it's impossible for them or it should not be possible for a an invocation to be permitted and school board meetings i would also like to point out that the dissent justice kagan in the town of grease case she pointed out that in city council meetings in the record their boy scouts gave the pledge of allegiance they were present students come for civics credit from the high school classes and in the fifth circuit in i think it's important to point out that students themselves gave the prayer they were present and so the fact is this and that in all of these cases whether it's a city council setting in the city of lancaster case in students might be present to cause legislative prayer to become unconstitutional rather it's a tolerable recognition of the effect that  religion has had on our society i believe that might have been justice o'connor but i or it was stated in march but your honors it is i think an extreme position that is being taken by our opposition well first of all i'm not aware of any rich history and tradition of that occurring other than in the u s supreme court where a statement a said god save the court now i think it's good that a god save the court instead of  i said i believe page seventy nine addressing the history but that is not the critical question the critical question is whether there is a rich history in legislative bodies that is how the u s supreme court looked at it when addressing whether or not the town of gre should be permitted to a lot indications that wasn't necessarily whether or not there's a rich tradition in history for city councils it's not unique to that city and it's not unique to the governing type of body but the question is whether or not in vocation policy in a legislative body follows the history and tradition that has been long described since congress first b m e appreciate your time your hon