Moment of silence gets moment in court
Illinois joined the ranks of at least a dozen states that impose a mandatory moment of silence in public schools when its Legislature this month passed a law over the veto of the governor.
A challenge to that law, filed almost immediately by a student and her father, again will test whether a moment of silence is a way to include organized prayer in schools , a practice outlawed by the U.S. Supreme Court in 1962 as a violation of the First Amendment's ban against laws promoting an establishment of religion.
Rob Boston, spokesman for Americans United for Separation of Church and State, said Illinois' law is unnecessary and amounts to political posturing on the part of lawmakers who "want to appear to be pious before the voters."
"Kids have the right to pray in school in a voluntary, non-disruptive fashion whenever they like, so there's no need to codify a so-called moment of silence at the beginning of the day," he said.
Not true, according to state Rep. Monique D. Davis (D), one of the law's co-sponsors. She said the moment of silence simply gives students a respite from fast-paced lives in which they are constantly bombarded with noise.
"These kids are living hectic lives," she said. "Now, we can't stop all of that because a lot of it is necessary, but every day in school there should be a moment of quiet time, just a moment of silence for students to collect his or her thoughts."
The lawsuit in Illinois was filed by a Buffalo Grove High School student, Dawn Sherman, 14, and her father, radio talk-show host and self-proclaimed atheist Rob Sherman. They are seeking an injunction to block the new mandatory moment of silence in Township High School District 214, with the goal of overturning the statute statewide.
U.S. District Judge Robert Gettleman Monday (Oct. 29) refused to block the moment of silence in the school district but indicated he still has concerns about the law. The next hearing is scheduled for Nov. 14.
According to Gregory E. Kulis, the Shermans' attorney, "The first thing the statute does is tell students to consider silent prayer. … It is endorsing religion and injecting public prayer in the public school."
Illinois' law, called the Silent Reflection and Student Prayer Act, changed a previously optional period of silence into a requirement. About 20 other states have laws allowing a moment of silence at the discretion of the teacher or district.
Forced moments of silence already have faced court challenges. Besides Illinois, other states that have mandatory moment-of-silence laws are Alabama, Georgia, Indiana, Massachusetts, Oklahoma, Nebraska, Rhode Island, South Carolina, Tennessee, Texas and Virginia.
In 1985, the Supreme Court struck down Alabama's mandatory law, ruling that the legislative history showed an intent to bring prayer back to schools. That was because an original 1978 law required a moment of silence only for the purpose of "meditation," but in 1981, the Legislature added "or voluntary prayer" to the statute.
However, the high court upheld moments of silence in general if enacted for non-religious purposes. In 1998, Alabama enacted a law requiring a period of "quiet reflection," based on a 1994 Georgia law that survived a court challenge.
In 2000, Virginia's law, which allows for "meditation, prayer or reflection," was also challenged, but federal courts upheld the law, and a year later, the Supreme Court refused to hear the case.
In August, a federal court heard challenges to Texas' 2003 mandatory law, which specifies that students may "reflect, pray, meditate, or engage in any other silent activity." The plaintiffs argued that the inclusion of the word "pray" shows religious intent. The judge has not yet ruled on the case.
One expert says lawsuits, such as the Shermans', are unlikely to succeed. Charles Haynes, a scholar at the First Amendment Center, which researches free-expression issues, said a more conservative Supreme Court makes it unlikely any moment-of-silence laws will be declared unconstitutional.
Also, after the 1985 case, legislatures have been careful in wording such laws to ensure that they aren't seen as expressly advocating religion.
"Now [legislators] may, in their heart of hearts, want to get prayer back in school, but just because that's the push, it doesn't make the law unconstitutional," Haynes said. "There's no constitutional problem with a genuinely neutral moment of silence. How could there be? It's just silence."
But Illinois Gov. Rod Blogojevich (D) tied the moment-of-silence bill to prayer. "As a parent, I am working with my wife to raise our children to respect prayer and to pray because they want to pray - not because they are required to," he wrote in his veto letter.
The Legislature overrode him Oct. 11 and the new law took effect immediately in some schools. The law, however, doesn't specify how long the moment of silence should last. It also doesn't include any penalties for schools or teachers that refuse to hold one.
Some Illinois students have rallied against the moment of silence by starting and joining a group in the Internet social-networking site Facebook called "Illinois Students Against Required Silence." As of Oct. 29, the group had 2,675 members. A discussion thread on the site revealed that moments of silence throughout the state range from 4 seconds to two minutes.
According to Haynes, the big worry of moment-of-silence opponents is that such laws, even if they are written to be neutral, could be abused by individual teachers or principals. In the Texas case, the lawsuit by plaintiffs David and Shannon Croft claims that their son's teacher told her class the moment of silence should be used to pray, and then bowed her head and folded her hands as in prayer.
And that's a violation that groups like Americans United for Separation of Church and State will look out for in Illinois. "If we get any evidence of teachers leading prayers or prayers over the loudspeakers, anything like that, we'll put a stop to it," Boston said.