Civitas Counters Influence of Freedom From Religion Foundation

A recent episode in Moore County shows how public interest lawyers can drive policy — on both the Left and the Right. Simply by writing a threatening letter, the Freedom From Religion Foundation sparked a chain of events that nearly culminated in two separate federal lawsuits. Luckily, the administration and legal counsel of Moore County Schools were able to defuse a sticky situation before it escalated further. The situation is an interesting example of the dynamic between competing public interest groups and government actors. It further underscores the importance of maintaining a public interest litigation presence on the Right, lest the Left is allowed to bully and sue public officials without any countervailing conservative presence.

It is December 2, 2014. Pinecrest High School, located in Moore County, is holding its annual awards banquet for the men’s soccer team — and awards are certainly in order. The team posted a perfect 10-0 conference record in regular season play before making a deep run in the Division 4-A playoffs. The Pinecrest Patriots ultimately fell to Charlotte powerhouse Myers Park High School, ending the season with a stellar 17-4-2 record.

Someone — maybe a coach, teacher, or parent — stands up before the attendees and says a prayer to begin the evening. Perhaps they thank God for a good season or say some words to solemnize the occasion, though the exact contents of the prayer are unknown. Regardless, one anonymous parent in the crowd does not approve, and he or she reaches out to an organization all too familiar to advocates of religious liberty — the Freedom From Religion Foundation (FFRF).

The bread and butter of FFRF is shutting down religious expression in public spaces. The organization makes its name by seeking out any public mention of religion and challenging it in court. These lawsuits often fail, but they are used as a public relations and fundraising tool by the Wisconsin-based organization. The tone and demeanor of FFRF can be understood just through one of its slogans: “Nothing fails like prayer.”

FFRF has even launched a “nothing fails like prayer” contest to “show our government that official prayer is unconstitutional, pointless, divisive and offensive.” The winner of the contest gets to give a mock “invocation” at the atheist group’s annual convention, openly mocking the very idea of prayer.

This is not a group of friendly atheists who want to coexist with people of different beliefs and faith — and to be clear, respectful and amicable atheists do exist. Rather, this is a group that believes (religiously) that its commitment to atheism makes it better, smarter, and fundamentally more advanced than people of faith.

Upon learning about the prayer at Pinecrest High School’s soccer banquet in Moore County, FFRF puts its litigation machine into action. The atheist organization is still licking its wounds from the Supreme Court’s 2014 decision in Town of Greece v. Galloway, where the Court held that a town may permit chaplains to open legislative sessions with a brief prayer. FFRF is seeking any and every opportunity to narrow and distinguish the Supreme Court’s holding in Town of Greece, and a case involving school prayer at an official event is just such an opportunity.

Including prayer in a school-sponsored event is particularly inappropriate given that almost 20% of the U.S. population identifies as non-religious. Younger Americans are the least religious population in the country: one-in-three persons aged 18-29 are not religious. An awards banquet should be an inclusive, unifying event designed to strengthen bonds within the school community. Including prayer in the program does exactly the opposite, isolating non-Christian and nonreligious students, cheapening their participation by sending the message that they are outsiders in their own community.

Ultimately, Elliott ends the FFRF letter with a veiled threat of legal action:

It is unlawful for any school-sponsored event, including an after school awards banquet, to open with prayer. FFRF requests that you take immediate action to ensure that future school events do not include prayer. Please inform us in writing of the steps Moore County Schools is taking so that we may notify our complainant.

Superintendent Grimesey takes the letter and considers it with advisors and counsel. Any decent superintendent, lawyer, or government agency in general would would want to avoid getting sued by the Freedom From Religion Foundation. FFRF has an essentially bottomless pit of funding from which to draw resources for litigation. So, even if FFRF is ultimately wrong, prevailing after five years of litigation is not a win for Moore County Schools. The system’s goal is to mitigate cost and risk while complying with all applicable laws.

To that end, the attorney for Moore County Schools sends a memorandum to Superintendent Grimesey in March of 2015. In that memo, the attorney neutrally sums up how the school system should treat religious activities:

Courts have recognized that religion is a private matter in which the government should remain strictly neutral…Knowing that students come from a variety of backgrounds and belief systems, public schools and their employees should exercise great care to avoid promoting or denigrating religion, non-religion, or any faith particular tradition.

Ultimately, the attorney’s memo contains a relatively fair treatment of religion in public schools. Along with this memorandum, he includes a document entitled “Prayer at School – Guidance for Staff Interviews,” which contain some questions that administrators might consider asking when talking to MCS staff about religion in schools. These questions were meant to be asked during in-person interviews and only for the purpose of “ensur[ing] that the school system is not violating laws regarding the separation of church and state.” Again — the school system’s goal is to avoid a lawsuit while complying with the law, not to wade into an unnecessary conflict about religion in schools.

But here, the story takes a turn. Because somewhere along the way, lines of communication get crossed, and the “Guidance for Staff Interviews” questionnaire is disseminated to at least some school employees in paper form. Some employees, not understanding that this was done in error, think they are being given a survey about their religious beliefs. Whereas a parent at a banquet had previously reached out to FFRF about unconstitutional prayer, MCS staff members now begin to reach out to conservative groups about why they are being asked to fill out a questionnaire about their religious beliefs and practices

After receiving requests for help from staff members within Moore County Schools, the Civitas Institute Center for Law and Freedom (CLF) files a public records request with Dr. Amber Rach, the school system’s Director of Communications, with a copy sent to the school system’s attorney. In this request, CLF asks for the “staff prayer questionnaire” disseminated to MCS staff, any questionnaires returned to MCS administrators, and the attorney’s legal memorandum.

It is important to remember that at this stage in the story, neither CLF nor concerned MCS staff members know anything about the Freedom From Religion Foundation complaint or the communication mix-up over the staff questionnaire. All that CLF knows is that a school system has asked employees about their religious practices at school. This is cause for concern, and CLF therefore is evaluating the situation as a potential lawsuit challenging a public school system’s “witch hunt” in violation of the United States Constitution’s free exercise clause.

So, Moore County Schools heads back to the drawing board. In a February 25, 2016 correspondence, their attorney discloses two of the records sought to CLF, but then states that MCS needs additional time to conduct a review of the other requested documents — a reasonable request. They have to decide whether or not the mistakenly filled-out questionnaires are public records, and therefore whether the school system can/must produce them for CLF. It is worth noting that by responding to the CLF request on the same day that it was sent, the school system’s attorney likely established a new North Carolina record for fastest response to a public records request.

Eventually, the school system’s attorney writes to CLF with his opinion that the mistakenly filled-out surveys were not public records, and an assurance that the school system was not engaging in a “witch hunt” of any kind:

[R]est assured that it was never the intent to gather information on individual employees so as to take any adverse action against them, and the superintendent has assured me that he will not use any responses received for any such purpose. Rather, the motivation behind the questions was to give legal counsel the information needed to provide appropriate legal guidance. To that end, the superintendent has instructed me to keep the written responses in my files and will not even read them himself. Instead, he will rely on me to summarize their contents and provide appropriate legal guidance…The district remains committed to a fair and accurate understanding of the constitutional rights and obligations of school employees and will continue to exercise due diligence to see that they are all respected.

While the Civitas Institute is a policy-driven organization, that is where our similarity to the Freedom From Religion Foundation ends. We do not fire off hair trigger lawsuits simply for the sake of making a point. Moore County Schools was clearly not on a witch-hunt for Christians, but rather was trying to avoid a lawsuit. We therefore opted not to pursue legal action. However, CLF did make one last push for, and retain a copy of, the original Freedom From Religion Foundation complaint that sparked the entire episode.

There may be some question as to whether the mistakenly filled-out surveys truly do fall within the personnel privacy protections claimed by the school system’s attorney. However, these questions are less the result of a flawed understanding of the personnel statutes on his part, and more due to a lack of case law surrounding those privacy laws (something that CLF is working on elsewhere). Given that school officials can be found guilty of a Class 3 misdemeanor if they mistakenly give out personnel information, it is not ridiculous for their attorneys to err on the side of nondisclosure. Further, CLF’s concern in this matter was about religious liberty, not public records law.

The situation is an interesting example of the dynamic between competing public interest groups and government actors. It further underscores the importance of maintaining a public interest litigation presence on the Right, lest the Left is allowed to bully and sue public officials without any countervailing conservative presence.