This is an edited version of the speech given by David J. Kalyonides on Nov. 3 at FFRF’s national convention in San Francisco. He was introduced by FFRF Legal Director Rebecca Markert:
David J. Kaloyanides has been the lead litigator in FFRF’s victorious challenge of prayers and religious rituals by the school board in Chino Valley, Calif. David has been practicing law in the federal courts for over 25 years. A graduate of Loyola Law School of Los Angeles, he has been lead trial counsel in more than 300 federal cases. David is a certified specialist in criminal law, certified by the California Board of Legal Specialization, and his practice includes complex criminal defenses in both state and federal court.
Please welcome David Kalyonides.
By David J. Kolyanides
Let me set the stage. The school district in Southern California — Chino Valley Unified School District — has approximately 50,000 students. The board of education is its governing body. It has five elected members and one student representative. Three members of our board come from Calvary Chapel of Chino Hills, a dominionist church. Dominionism is this idea that comes out of Genesis that God gave authority and power and dominion to God’s people over the world and everything in it. They ascribe to extremist Christian views; they seek to impose strict codes of conduct; they seek adherence to their views without question; they seek political control. They are the Christian Taliban. Taliban is a plural of Talib, which is a Pashto word for student, which would make you think they want to learn. They don’t.
The Chino Valley Board of Education had an informal policy of allowing an invocation to begin all its meetings. Back in 2010, when two of the members from this Christian Taliban church — James Na and Andrew Cruz — became members of the board, parents got a little upset. They started complaining, but that fell on deaf ears. Parents then reached out to FFRF.
My relationship with FFRF started a little over four years ago. [FFRF constitutional attorney] Andrew Seidel called me and we chatted about how we could make this relationship work. My children go to school in the Chino Valley Unified School District. (A little plug for my boys: They’ve been protesting the pledge since fifth grade.)
FFRF sent a complaint letter to the district saying, “Hey, you know, you guys are violating the Constitution. You’ve got to stop. This is a school. The law is clear. Schools and prayers don’t mix.”
We heard about a case called the Town of Greece vs. Galloway. It was about invocations for city councils. The Supreme Court, in a very poorly reasoned decision by Justice Kennedy, basically said, “Look, legislative bodies in this country have a long tradition of opening prayer for their sessions. Congress has been doing it even before the Constitutional Convention.”
There’s also a case called Marsh, which applied that rationale to state legislators back in 1983. Town of Greece applied it to town councils. So, the Christian Taliban had its hook. They sent out notices to thousands of school districts in the nation, essentially stating: Here’s how you get prayer back into school. Here’s what you have to find. Here’s the resolution you have to adopt.
FFRF started going back and forth with the school district. It wasn’t complying; it wasn’t listening. So, we sued. Mike Anderson agreed to be our named plaintiff. He had two daughters in the district at the time. Then we added Larry Maldonado as a named plaintiff. He has a son in the district. All in all, we had 22 plaintiffs — teachers, parents, students. Most of them were suing as plaintiffs under the name of Doe to protect their identity, and the court allowed us to do that.
More than a prayer case
Now, this is not just a prayer case. It’s not. Yes, it nominally involved these invocations, which, by the way, are only given by Christians, are always very sectarian, and most of the people giving it come from the Taliban church, Calvary Chapel of Chino Hills.
California is about 20 percent Nones. You know, us Nones, not the other nuns. One to 2 percent of the United States population are Jewish. One to 2 percent are Muslim. One to 2 percent are Buddhists, and 1 to 2 percent are Hindu. Chino Valley is different. The Nones are around 40 percent. Buddhists are around 10 percent. Hindus around 5 percent. But only Christian pastors were invited to come and give the invocation, which is a violation of what the Supreme Court said in Town of Greece.
Also, invocations had to have the purpose of solemnizing the proceeding, not preaching or proselytizing. And it was supposed to be directed to the legislators. Well, this is all kind of irrelevant because school boards are not legislative bodies. They run the district. They run the school. These are individuals who act as prosecutor, judge, jury and executioner of the students. They are not legislators. And this became very critical in our case.
So why is it not just a prayer case? Because the board meetings, which are public, are where students not only attend, but participate. They are showing their science fair awards. They are receiving accolades. They are being disciplined. Some have to go because they’re about to be expelled. This is a meeting for the students.
But here’s what the board members did:
• In May 2014, board member James Na told the audience, “God appointed us to be here, whether you are teachers or staff members or principals or director’s assistant superintendents.”
• At another meeting, Andrew Cruz said, “Anything you desire, depend on God” and then thanked a principal who prayed for the students every Saturday. No other board member tried to stop them or made any comment contrary to this.
• Cruz, at another meeting, stated to the audience, “If we have confessed our sins and ask God’s forgiveness, we simply need to keep a forward focus toward the goal of pleasing Christ, because he died for our sins, according to the scripture. He was buried, and he was raised on the third day, according to the scriptures. Now, that’s the gospel.”
Judged by Jesus
So, we have our lawsuit in federal court. The board wanted to be judged by Jesus. I love this part. They got their wish. United States District Judge Jesus Bernal granted our motion for summary judgment. A motion for summary judgment is when there are no disputes of fact and you don’t need a trial because all the facts are in line and nobody disagrees as to what those material facts are. Trials are about determining the facts, but when all you need to do is apply the law to those facts, you can just ask the judge to determine that. So, we brought our motion for summary judgment, and Judge Jesus agreed and imposed a permanent injunction against the board. And awarded attorney’s fees.
Well, the board was upset with its free legal advice from the Pacific Justice Institute and hired Advocates for Faith and Freedom, which is affiliated with the Alliance for Defending Freedom.
So, we go up to the 9th Circuit. Andrew Seidel and Rebecca Markert worked very hard on the briefing. And then we had the oral argument on Nov. 8, 2017. (And I do want to thank also the legal team from Americans United who, along with Andrew and Rebecca, helped prepare me.) The 9th Circuit, in a per curiam decision, which means “of the court,” ruled “Yeah, you guys [Chino Valley United School District] are wrong. You violated the Constitution. The injunction stands.” [applause]
I want to read from the opinion: “In California, an employee of a school district — meaning a person employed by the board — may exercise over students the amount of physical control reasonably necessary to maintain proper and appropriate conditions conducive to learning. The school district also holds a more subtle power over the students’ academic and professional futures.”
This is why it was important. Unlike the legislative sessions in Marsh and Town of Greece, where constituents may replace legislators and need not fear their exercise of comprehensive control, students do not enjoy that autonomy. The fact that this was a student-focused meeting was critical to the 9th Circuit’s decision.
[Editor’s note: The Chino Valley School District voted 3-2 on Jan. 17 not to appeal the case to the Supreme Court.]
But here’s where the coming storm is: What the Religious Right is doing, what the dominionists are doing, what the Christian Taliban is doing is something that I think we need to be focused on. We’re looking at Congress and our federal elected officials and maybe even our state officials. But they’re going for local government. That’s where the battle is. And what’s the one thing nobody really pays attention to on their ballot? The school board. And now the Religious Right is trying to get out of the Establishment Clause and calling this a matter of free speech. So that’s the next battle line.
Thank you so much for having me. Keep fighting this fight.