The National Pulse
Sounds of Silence
Mandatory moments stir latest legal rumbling
Posted Aug 1, 2009 8:40 PM CDT
By Anna Stolley Persky
Former radio talk show host Rob Sherman describes himself as the “best-known atheist activist in the Midwest.” So it came as little surprise to fans and foes alike when Sherman and his teenage daughter Dawn decided to challenge an Illinois law that requires schools to start each day with a brief period of prayer or reflective silence.
The Illinois General Assembly adopted the Silent Reflection and Student Prayer Act in October 2007. Soon after, Sherman and his daughter filed a lawsuit in the U.S. District Court for the Northern District of Illinois seeking a ruling that the law violated the establishment clause of the U.S. Constitution.
“Kids have the right to pray before school, after school and even during school,” Sherman says. “What my daughter and I were opposed to is a law that required the teacher to stop teaching during class time so that kids could waste time praying instead of studying like they are supposed to be doing during class.”
In January, U.S. District Judge Robert W. Gettleman in Chicago found that the Illinois law was an unconstitutional endorsement of religion aimed at introducing prayer in public schools. But his ruling is unlikely to be the final word in the case.
Illinois Attorney General Lisa Madigan has appealed the ruling to the Chicago-based 7th U.S. Circuit Court of Appeals, although briefing has been stayed pending the outcome of efforts by state legislators to revise the language of the statute in a way that will pass constitutional muster.
Along with the recent challenge of a moment-of-silence law in Texas, the Illinois case has constitutional law experts pondering a re-emergence in litigation over the establishment clause as it applies to schools.
Alan Brownstein, a constitutional law professor at the University of California at Davis, says prayer in school is one of those issues that never truly dies but ends up being litigated in waves.
“The basic question,” Brownstein says, “is what is the role of government regarding religion in our public schools? It’s a polarizing debate in our society, and as long as it is, there will be litigation over it.”
But for Texas Solicitor General Jim Ho, a moment of silence isn’t about prayer; it’s about reflection.
“It provides a moment of each day for students to pause, to take a break from the pressures and distractions of a typical school day, and to contemplate,” says Ho. “They can think about how lucky they are to be in this country, how grateful they are to those who have died for our freedoms or about the upcoming math test; and, for those who are inclined to, they can engage in silent prayer.”
In March, the 5th U.S. Circuit Court of Appeals at New Orleans upheld the Texas law requiring a moment of silence.
At least 35 states have laws regarding the activity in public schools, according to a 2000 study by the National Conference of State Legislatures. The study notes that eight states require a moment of silence, while three require it only if the school district decides to do so.
Those laws describe “a moment of silence” most often as a period of silent contemplation, prayer, reflection or meditation. Generally, moments of silence are held at the beginning of each school day.
In 1962, the U.S. Supreme Court ruled in Engel v. Vitale that official endorsement of school prayer is forbidden under the First Amendment’s establishment clause. In 1963’s Abington School District v. Schempp, the high court prohibited Bible reading in public schools.
Then in 1985, the court in Wallace v. Jaffree struck down an Alabama law requiring that a moment of silence in schools be for the purpose of meditation or prayer. The court said the law amounted to an effort by the legislature to encourage prayer in schools.
In Illinois, a statute adopted in 1969 allowed but did not mandate a moment of silence to be observed daily in public schools. In 1990, the language of the statute was amended to allow students to engage in “individually initiated, nondisruptive prayer” that is not sponsored, promoted or endorsed by the school.
Then in 2007, the General Assembly amended the law again to make observation of a moment of silence mandatory in public schools. That action prompted Sherman and his daughter, then a freshman at Buffalo Grove High School in Chicago’s northwest suburbs, to file their lawsuit challenging the statute.
Under the usual establishment clause analysis, a law must have a secular legislative purpose. In striking down the amended Illinois statute, Gettleman based his analysis of the legislature’s intent in part on a state senator’s blunt comments in a news interview.
According to press accounts, when an interviewer asked Sen. Kimberly Lightford why the legislature should make decisions about moments of silence in schools, she replied: “Here in the General Assembly, we open every day with a prayer and Pledge of Allegiance. I don’t get a choice about that. I don’t see why students should have a choice.”
The American Civil Liberties Union, which filed an amicus brief supporting the Shermans, jumped at the senator’s remarks.
“Some members of our society want to return to the era of prayer in school, and the moment of silence is a means to do so,” says Adam Schwartz, senior staff counsel for the ACLU of Illinois. “Prayer should be between kids and their parents. It should not be coerced by politicians and school bureaucrats.”
Gettleman’s opinion in Sherman v. Township High School District also referred to a song that some legislators sang to the tune of Sounds of Silence when the moment-of-silence bill first came to a vote: “Hello school prayer, our old friend. It’s come to vote on you again.”
Such expressions are fair game as indicators of legislative intent, says Brownstein of UC Davis. “It’s perfectly appropriate to look at the way legislators describe their goals and purposes to their constituents,” he says.
Judge Gettleman also noted that the Illinois statute only allows for two options during moments of silence in school: prayer or reflection on the upcoming day’s activities.
“Even silent thoughts by a student about a professional sporting event or a family vacation would appear to violate the stated intent of the statute,” Gettleman wrote. “Consequently, the teacher is compelled to instruct her pupils, especially in the lower grades, about prayer and its meaning as well as the limitations on their ‘reflection.’ ”
But others hold firm that moments of silence allow some students to exercise their right to practice their religion, while allowing others to contemplate or otherwise prepare for the day.
“The establishment clause should not be used as a weapon to remove all vestiges of religion from the public schools,” says David Cortman of Lawrenceville, Ga., senior legal counsel for the Alliance Defense Fund, an organization of Christian attorneys that filed an amicus brief in the Illinois case.
TIMEOUT IN TEXAS
David and Shannon Croft, suing on behalf of their children, challenged the Texas law defining the moment as a time for students to reflect, pray, meditate or engage in any other silent activities. The Crofts’ argument was that the inclusion of the word prayer revealed a nonsecular intent by the legislature.
U.S. District Judge Barbara Lynn of Dallas upheld the law, finding that the “primary effect of the statute is to institute a moment of silence, not to advance or inhibit religion.”
In March, a three-judge panel from the 5th Circuit affirmed the district court ruling in Croft v. Governor of Texas. The court stated that the statute is “facially neutral between religious and nonreligious activities that students can choose to engage in during the moment of silence.”
Says Brownstein: “If your message is that we want people to start thinking deeply and seriously about things during this moment of silence, and we’re doing that in a way that recognizes a diverse student body, I don’t think that violates the establishment clause.”
But others disagree.
“By including the word pray in the statute, it creates a mindset for impressionable children that government involvement in religion is OK,” says Dean Cook, an attorney in Plano who represented the Crofts. “It’s the issue of the slippery slope—this will have cultural ramifications down the road.”