The state of North Dakota, through its high school activities association, is laying claim to the authority to control prayer at a school.
A private, Catholic school.
On its own football field, with its own announcers, with its own students, parents – and the public – in attendance.
The fight erupted when Fargo’s Shanley High School advanced to the state football playoffs, and by virtue of the team’s performance during the course of the 2015 season, earned the right to hold a playoff game on Saturday on its own field.
The school, with a student population of about 330 and a promise on its website of “excellent educational programs where faith is integrated with academic subjects through weekly Masses, daily prayer and faith-sharing experiences,” had game-time prayer on its own PA system, on its own system, all season long.
But for the playoffs, the North Dakota High School Activities Association, warned the school that “prayer before the football game is prohibited by the Supreme Court’s decision fifteen years ago in Santa Fe Independent School District v. Doe,” said a letter from officials with the Thomas More Society, a national public interest law firm that is working on behalf of the school.
“Santa Fe is certainly binding on public schools when it comes to the question of prayer before sports games. However, the case is completely inapposite here. Shanley is not a governmental actor. 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 letter to the association said.
Officials with the NDHSAA declined WND’s request to comment on the dispute.
Shanley already defeated Dickinson’s Trinity High School, another Catholic school, in the quarterfinals, 41-7. Its semifinal is scheduled Saturday against Central Cass.
But The Thomas More letter, from attorneys Peter Breen and Jocelyn Floyd, to Executive Director Matthew Fetsch and Justin Fletschock, the assistant director for football, said the idea that the association is sponsoring the playoff game and that “somehow converts Shanley’s football field into state property and Shanley into a state actor” is wrong.
“To every player, student, parent, and other participant or attendee of this game, it appears identical to every regular season game. They will see Shanley representatives selling tickets, they will hear a Shanley representative making the announcements, they will purchase concessions from Shanley representatives,” the letter sent Thursday to the state group said.
“And they will be looking down on a massive Christian cross, featured in the Shanley crest, which is emblazoned in the center of the field at the fifty-yard line. Therefore, it is our opinion that the distinction between the regular season and playoffs has no merit in support of the association’s assertion that it is required to treat playoffs differently in order to avoid an Establishment Clause violation,” the letter said.
Further, any prohibition on the school’s standard practice of having a prayer, “is a violation of the Free Speech and Free Religious Exercise rights of the school, as a private and religious entity. The Supreme Court has clearly held that it is unconstitutional to require private entities to give up their religious identity in order to participate in government sponsored programs.”
The letter said, “Shanley’s identity as a private actor, with a religious identity, gives it the right to engage in religious expression on its own property. A policy by the association forcing Shanley to give up that right 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.”
The letter urged the state to suspend its prohibition on prayer and “respect Shanley’s constitutional rights.”