As disputes about school prayer go, the one in rural Sussex County, Del., has been nasty. It started in 2004, when Mona Dobrich, a Jewish woman, objected to a prayer spoken at her daughter’s high school graduation that included the plea that “these graduates will come to learn the truth that can only be known through knowledge of our Lord and savior Jesus Christ.”
Dobrich raised the issue during a school board meeting attended by hundreds of people. Many strongly opposed Dobrich’s viewpoint and held signs reading “Let us pray, God is listening,” and “Jesus is the light of the world.”
With the school board unmoved by her complaints, Dobrich sought legal help from the American Civil Liberties Union, which was unable to find a lawyer in Sussex County to take her case. The ACLU turned to Thomas Allingham II, a corporate litigator in the Wilmington, Del., office of Skadden, Arps, Slate, Meagher & Flom.
Thus began a seven-year legal battle that could shape the contours of the limits of prayer at school events. Allingham, whose cases more commonly deal with disputes over company mergers or corporate bankruptcies, initially knew little about school-prayer jurisprudence. “It turned out the district was tolerating Bible clubs during school hours — Bibles were distributed at school, students got preferential treatment during lunch so they could go to Bible club,” he said. “I naively thought if I could get in the room with someone we could settle it.”
It didn’t work out that way. In early 2005, Allingham helped Dobrich sue the Indian River School District, charging violations of the First Amendment’s establishment clause. After three contentious years, and at least one board meeting during which attendees broke into “Onward Christian Soldiers,” much of the suit was settled, with the board agreeing to new limits on religious activity in school.
What remained was the question of whether the school board could open its meetings with prayer. A 1983 U.S. Supreme Court precedent, Marsh v. Chambers, held that a state legislature that opened its sessions with prayer wasn’t violating the establishment clause, because the first Congress in 1789 had appointed a chaplain to open its sessions with prayer three days before it agreed on the final language in the Bill of Rights.
The question, then, was whether prayer should be restricted during school board meetings in the same way it is at other school events, or whether board meetings should be treated in the same way as legislative sessions. Allingham argued that because some students, including members of student government and the ROTC flag corps, were effectively required to attend board meetings, the former should apply.
A judge in the U.S. District Court for the District of Delaware disagreed, issuing a summary judgment in favor of the school district. By this time, the Dobriches had fled harassment from community members to Wilmington; they were replaced as lead plaintiffs by an anonymous family referred to as the “Does.”
Allingham didn’t lack for volunteers to help with the appeal. “People were beating down my door,” he said. “When you hear the story of what happened down there and the kind of things people were saying in Indian River…the kind of vitriol that was coming out of people’s mouths. I would tell these stories at lunch and lawyers would say, ‘Can I get on the case?’ ”
The school district had upped its legal firepower as well, following a dispute with the district’s insurance company, which no longer wanted to continue the legal battle. Jason Gosselin, a Drinker Biddle & Reath partner known for representing a Philadelphia scout troop that faced eviction from a city-owned building because of the Boy Scouts’ ban on gays, took the district’s side pro bono.
In August, seven years after he first began work on the case, the U.S. Court of Appeals for the 3d Circuit overturned the district court — ruling, 3-0, that the school board’s practices were unconstitutional. Allingham expects the U.S. Supreme Court to decide whether to hear an appeal by February.
Allingham said he has spent 1,734 hours working on the case and had more than 9,000 hours of help from other Skadden lawyers.
“I’m a religious guy. I go to church every Sunday,” he said. “But I think, at some fundamental level, if you decide to live together as a society and make up some rules, it’s really important that people live by the rules. If you don’t do that, if people decide to ignore the rules, it’s a recipe for chaos.”
Jason McLure is a freelance reporter in New Hampshire.