FARGO — In response to Fargo Shanley High School and another Christian school being prohibited from broadcasting prayers before football playoffs in 2015, some North Dakota lawmakers are proposing a bill to prevent that from happening again.
Rep. Kim Koppelman, R-West Fargo, said he wrote the bill after speaking with people who wanted to file a lawsuit against the North Dakota High School Activities Association. “I don’t think that's the most constructive way to respond.”
House Bill 1275, introduced Tuesday, says that if a “school-sanctioned athletic activity” is held at a parochial or private school, neither the “association nor any other entity” may prohibit prayers.
NDHSAA Executive Director Matt Fetsch said in a statement that the group’s board and attorney haven’t had a chance to review the bill.
Chris Dodson, executive director of the North Dakota Catholic Conference, said his group, which represents the state’s two Catholic dioceses, also hasn’t reviewed the bill.
Koppelman’s bill, sponsored by Rep. Jim Kasper, R-Fargo, Rep. Don Vigesaa, R-Cooperstown, and four other lawmakers, will also allow students to participate in any student-initiated prayer before school-sanctioned athletic activities.
Koppelman said that’s a right students have long enjoyed, but the law makes it explicit.
The furor over pre-game prayers erupted in October 2015 at Bismarck’s Shiloh Christian when parents asked why there had been no prayer given over the public address system, which normally happened before every home game.
Travis Jordan, superintendent at the time, explained this was because postseason games, even if they’re played at Shiloh, are hosted by the NDHSAA. “It’s not the high school activities association’s fault,” he said at the time. “They’re just a public entity abiding by public laws.”
The following month, attorneys for Shanley High School, a Catholic school, told the NDHSAA that they believe the school has a constitutional right to deliver a prayer over the PA system and requested the association allow that before a playoff game at their school.
The NDHSAA refused. Its attorney, Rachel Bruner-Kaufman, said then that the association is considered a public entity and it must abide by a U.S. Supreme Court ruling in 2000 that prohibits public entities from allowing such prayers.
In that case, Santa Fe Independent School District v. Doe, two sets of parents, one Catholic and one Mormon, sued a Texas school district to stop prayers from being delivered over the PA system. After a lower court ruled against the district, the district asked students to vote to allow such a prayer; student-initiated prayers are considered private speech and therefore constitutional.
A majority of the Supreme Court decided that when student-initiated prayers are delivered over the PA system, it becomes sanctioned by a government entity. The First Amendment prohibits the government from establishing a state religion or expressing a preference for one religion over another.
“We are not persuaded that the pregame invocation should be regarded as private speech,” Justice John Paul Stevens said in announcing the majority’s decision. “The invocations are authorized by a government policy, take place on a government property at government sponsored school related events.”
Prayers delivered by students on their own on school grounds are not prohibited and the NDHSAA does not oppose them.
Koppelman said the association is a private group involved in public activities and was probably being careful in prohibiting public-address prayers. Koppelman said in speaking with the attorney general’s office, he determined that the NDHAA would have legal cover if the state requires it to allow such prayers.
Asked if he thought any lawsuit over these prayers would then be directed at the state of North Dakota, he said, “That’s an awful far-reaching hypothetical so I don’t know if I can respond to that."
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