- The Washington Times - Tuesday, October 31, 2000

A federal judge in Alexandria yesterday ruled that Virginia can continue to require public school students to observe a daily minute of silence in classrooms.

The American Civil Liberties Union challenged the law on behalf of nine students, arguing the state violated the Constitution's separation of church and state clause by including the option of prayer during the silence.

But U.S. District Judge Claude M. Hilton agreed with Virginia's argument that the purpose of the law is secular and does not promote religion as a favored practice.

"The court finds that the Commonwealth's daily observance of one minute of silence act is constitutional, the act was enacted for a secular purpose, does not advance or inhibit religion, nor is there excessive entanglement with religion," Judge Hilton wrote.

The ACLU plans to appeal the ruling to the 4th U.S. Circuit Court of Appeals in Richmond, said Kent Willis, executive director of the Virginia chapter.

"It's a disappointing opinion because we felt there was a strong legislative history showing that this [law], from the beginning to the end, was about promoting prayer in school," Mr. Willis said.

Judge Hilton, in his 15-page opinion, agreed wholeheartedly with Virginia Attorney General Mark L. Earley's arguments. Much of the judge's opinion lists, then rebuts, the ACLU's arguments, in complete agreement with Virginia's counterarguments.

The judge agreed with Virginia that only the statements by the law's sponsors were important in understanding legislative intent, and that the act does not encourage students to pray. He also agreed with the state's reading of precedent, rather than the ACLU's reading.

That was not lost on the ACLU. "The decision sees the entire process through the lens offered to the judge by the Attorney General's office," Mr. Willis said.

Mr. Earley released a statement repeating his stance throughout the proceedings: "There is nothing to fear from a classroom of silent, thoughtful children."

The law, which went into effect July 1, requires every public school to hold a minute of silence during which students may "meditate, pray or engage in any other silent activity." Previous state law allowed, but did not require, schools to hold a minute of silence.

Some schools at the beginning of this school year weren't sure how to handle students who didn't want to participate. One plaintiff, Jordan Kupersmith, even received detention for walking out of his Loudoun County classroom without permission.

Since then he and other students who walked out have come to an arrangement with their schools, and the issue has faded into the background as students become used to it.

"It's become routine," said Kitty Porterfield, spokeswoman for Fairfax County public schools.

Many of the plaintiffs were participating in after-school activities yesterday and could not be reached for comment.

The ACLU lawyers believe the key to the case is the U.S. Supreme Court's 1984 decision in Wallace vs. Jafree, in which the court struck down an Alabama law that mentioned prayer.

The ACLU argued that Virginia's situation is the same as Alabama's, and that simply mentioning prayer is unconstitutional.

Judge Hilton disagreed, saying the Supreme Court in that case looked to legislative history, and the lawmakers in Alabama clearly wanted to reintroduce prayer in schools.

Judge Hilton said Virginia lawmakers, on the other hand, wanted to give students a chance to collect their thoughts and gather themselves for the learning day ahead.

"The momentary silence neither advances nor inhibits religion," Judge Hilton wrote. "Students may think as they wish and this thinking can be purely religious in nature or purely secular in nature. All that is required is that they sit silently."

The courts are not the only venue for the fight over the law.

Delegate L. Karen Darner, Arlington Democrat, already has filed a bill for next year's legislative session that would strike the word prayer from the law.

But Delegate Robert F. McDonnell, the Virginia Beach Republican who shepherded last year's bill through the House, said the battle will probably end only after the minute proves to be a success.

"I think what we're going to find is the benefits that students will reap and teachers will attest to around the state over the coming years will hopefully end the debate," he said.

State Sen. Warren E. Barry, Fairfax Republican and the bill's original sponsor, said he has observed some classrooms as they implement the new law.

"It seems that it's part of the daily curriculum now, and it's working well," he said. "But of course, today was simply one of the battles. The war's not over."

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