"The patent philosophical bent of jurists"

[P. Eliasberg]

I do agree with you that Coles highlights the dificulties created by the Marsh
decision, a decision that I have always thought was unwise.  However, I could
just as well say, as the Supreme Court said in Edwards v. Aguilard, that there
is no historical exception for public school systems, which hardly existed at
the time of the ratification of the Counstitution.  Because school boards are
an integral part of school systems, (especially where the facts are like those
in Coles), they are not subject to Marsh's historical analysis.  I think that
this "historical" analysis is just as persuasive if not more so than treating
a school board as "a democratically elected body" subject to the Marsh
exception.  Moreover, if one takes the "democratically elected" bodies
principle to its logical extreme, it would apply to student councils.

Regardless of the difficulties you point out that are raised by Marsh's
historical exception and trying to apply it, Coles should have been an easy
case.  The prayers were evidently quite regularly overtly sectarian.  The
Supreme Court made clear in both the majority opinion and Justice O'Connor's
concurrence in Alleghen, that sectarian prayer is impermissible, even where
the Marsh exception applies,
Peter