Ban on prayer at playoff games is unconstitutional, attorneys for Shanley High School say

FARGO – Attorneys for Shanley High School say the private Catholic school here has the constitutional right to announce a prayer over its speaker system before the football team’s playoff game Saturday, and have requested that the high school sports governing body suspend its ban on prayer to allow this.
Lawyers with the Thomas More Society copied The Forum on their letter to the North Dakota High School Activities Association on Friday morning.
“Shanley is not a governmental actor. It is a private school, with a religious identity,” the letter stated. “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.
“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 request follows a flap earlier this week when a Facebook photo of St. Mary’s and Kindred high school football teams praying together went viral. The post stated the activities association “said no public prayers before the game.”
Association leaders say that’s been the case during playoff season for 15 years. Although private schools are allowed to broadcast prayers before regular-season home games, playoff games are technically hosted by the association, which is public.
“It’s played at their facility, but it is a postseason game,” assistant association director Justin Fletschock said of Saturday’s matchup between Shanley and Central Cass. “The postseason contests are controlled by high school activities association.”
Fletschock declined to comment further, but on Friday afternoon, the association released the following statement: “Because this request involves an issue of constitutional law, 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.”
In previous postseason games held at Shanley, the school has skipped its usual prayer, said Michael Smith, superintendent of the Saint John Paul II Catholic Schools Network.
But for several years, administrators have started to wonder whether that’s right.
“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.
Attorneys with the Thomas More Society, a nonprofit law firm that often works on religious freedom cases, dispute the notion that postseason games are any different from other games held at private schools.
“This ‘sponsorship’ is illusory; in all material respects, 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 provide down markers,” the letter from Peter Breen and Jocelyn Floyd said.
They further argued that “no one” attending Saturday’s game will confuse Shanley for a public high school when they are staring at “a massive Christian cross … emblazoned in the center of the field.” Therefore, playoffs do not have to be treated differently to avoid an establishment clause violation, they wrote.
Smith said Shanley has prayers before all of the school’s home events. At its football game against Central Cass three weeks ago, the Rev. Charles LaCroix led the crowd in prayer.
“As always, we ask you to be with us, watch over us, bless us, protect us, keep the players free from injury and harm, allow them to play to the best of their ability, and reward them for their efforts,” LaCroix said over the public address system.
Smith said the letter from attorneys isn’t a demand or a threat to sue – just a request.
“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,” Smith said. “We feel it’s a big part of who we are.”
Smith said he had not heard back from the association as of 5:30 p.m. Friday, but that he expected to hear back before the game at 1 p.m. Saturday. He said Shanley would abide by the association’s decision.