- The Washington Times - Friday, June 23, 2000

The Virginia chapter of the ACLU filed suit in federal court Thursday on behalf of seven Virginia families who want to overturn the state's new law requiring a moment of silence in public schools.

The General Assembly changed the law this year to require that every school hold a minute of silence where students may "meditate, pray or engage in any other silent activity." Previously the law had allowed, but not required, schools to hold a minute of silence.

Stuart H. Newberger, the District lawyer who is coordinating the ACLU's case, argues that the law intends to put prayer in schools a violation of the First Amendment.

"What motivated a majority of the legislature and governor was they absolutely, clearly, unequivocally want to put prayer back in public schools," Mr. Newberger said.

The law will still go into effect July 1 as planned for those students in summer school, since the lawsuit does not ask for a temporary injunction.

The challenge, filed in federal district court in Alexandria, had been anticipated from the moment the bill passed.

"The suit was not unexpected. The law is clear. There was overwhelming, bipartisan support for the bill and we are confident we will prevail in the courts," said Lila White, a spokeswoman for Gov. James S. Gilmore III, who signed the law and is named as the lead defendant.

This week's U.S. Supreme Court decision on a case from Santa Fe, Texas, that reaffirmed the court's strict stance on mixing prayer with public schools encouraged the ACLU, although Mr. Newberger said he's been planning for the case for the last six months.

John Whitehead, president of the Charlottesville-based Rutherford Institute, a First Amendment watchdog group, said the clear language of the Supreme Court ruling means it will be difficult to defend the law.

"It's very tough because you read the face of the law, it's got religion and prayer all over it," he said.

The case will likely turn on whether lawmakers are trying to use the minute of silence as a way to get prayer into schools. That is a factual question the court will have to answer by looking to the murky area of lawmakers' intentions.

For that, there are dozens of newspaper articles chronicling lawmakers' statements. The ACLU cites several in their 25-page complaint, including two that quote lawmakers looking back favorably to the days when prayer was allowed.

The ACLU also points to a General Assembly resolution passed this year that asks Congress to allow prayer in the classroom.

But Robin DeJarnette, spokeswoman for the Richmond-based Family Foundation, said the law and legislators' intent are defendable. She said the quotes the ACLU uses as evidence aren't meant to coerce students to pray, but rather to allow prayer, along with meditation and other quiet activities.

Senators, delegates and Attorney General Mark L. Earley were careful with their words during the legislative process. They almost always qualified the inclusion of prayer as an option to preserve the First Amendment right to free exercise of religion.

Of the seven families who are plaintiffs in the suit, five have children in Fairfax County public schools; one has a child in school in Henrico County, north of Richmond; and one has a child in public school in Amherst County, southwest of Charlottesville. Those school systems are also named in the suit.

Cora Yamamoto, whose two children are in Fairfax County schools, said she and her husband had a "visceral reaction that [the law] was unconstitutional."

She was raised a Buddhist, her husband, Jeffrey M. Lepon, is Jewish and the two children, Jana Lepon, 14, and Ariel Lepon, 10, are being raised Jewish. She said they have always felt public schools aren't the place for religion.

The new law specifically charges the attorney general with defending the law.

Mr. Earley hadn't been served with the suit yesterday afternoon and couldn't comment on the particulars, but in a statement he criticized the ACLU for filing it.

"In an era which has seen an increase in school violence, it's unfortunate the ACLU is discouraging students from exercising a moment of silence at the beginning of each school day," he said.

Mr. Earley has said he thinks the way the law reads now is defensible, and last week said teachers may explicitly tell students they are allowed to pray during the period of silence.

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