- The Washington Times - Tuesday, August 29, 2000

Virginia Attorney General Mark L. Earley yesterday filed a court brief and a set of documents a half-inch thick as evidence that the state's new mandatory "minute of silence" in public schools is secular in purpose.

The state chapter of the American Civil Liberties Union will ask U.S. District Judge James Cacheris Friday to halt enforcement of the requirement, and ACLU officials hope the judge rules immediately so students, most of whom return to school next Tuesday after Labor Day, won't be subject to the requirement.

The old law allowed, but did not require, school districts to impose a minute of silence for students to "meditate, pray or engage in any other silent activity." The new law requires every school to hold a minute of silence.

The ACLU lawyers, in their own inch-thick set of filings, argued the intent of the law is to promote prayer something prohibited by the First Amendment.

But Mr. Earley has repeatedly said including the word "prayer" is necessary to preserve students' right to free expression of religion.

"If local school authorities were to discriminate against silent prayer, it would violate First Amendment rights," Mr. Earley wrote in his filing yesterday.

In their filings, the ACLU and the attorney general cite remarks from lawmakers that either support or refute the ACLU's contention that the point was to put prayer back in public schools.

The ACLU cited lawmakers who wanted to strip the word "prayer" out of the law altogether, and argued that by preserving prayer in the law the legislature gave it special status, or promoted it.

But Mr. Earley said deleting the word from the already existing law could have given the impression prayer was no longer permitted, therefore it had to remain.

In the quarter-century since it was passed, the old law never faced a legal challenge.

The Republican attorney general pointed to transcripts from the Senate and House debates, including from the bill's original sponsor, Sen. Warren E. Barry, Fairfax Republican, and Delegate Robert F. McDonnell, Virginia Beach Republican, who steered the bill through the House debate.

Both men repeatedly told lawmakers the bill wasn't a backdoor attempt to restore prayer, but rather a way to give students a chance to reflect on the day ahead.

Mr. Earley also argues that halting the law now, at the beginning of the school year, is bad policy. He urged the judge to leave the law in place pending a full hearing.

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