- The Washington Times - Tuesday, August 15, 2000

A federal judge will be asked to throw out Virginia's new minute of silence law at a hearing Sept. 1 four days before most public schools open.

The state chapter of the American Civil Liberties Union hopes the law will be overturned before students would have to follow it, said Stuart H. Newberger, the ACLU lawyer coordinating the case on behalf of seven Virginia families with children in public schools.

Mr. Newberger filed a motion Friday asking the federal district court in Alexandria to overturn the law immediately.

The General Assembly rewrote the law this year to require all public schools to hold a minute of silence for students to "meditate, pray or engage in any other silent activity" that doesn't distract the class. Previously, the law had left the decision to hold a minute of silence up to school districts.

Mr. Newberger was hopeful of his chances for the challenge.

"The case law is rather clear on this," he said, referring to the U.S. Supreme Court's decision in a case from Santa Fe, Texas, earlier this year in which the court reaffirmed its stance against mixing prayer and public schools that it first established in the Wallace vs. Jaffree case 15 years ago.

Attorney General Mark L. Earley's spokesman, David Botkins, said they are comfortable with the law.

"The attorney general is confident the minute of silence law is constitutional," Mr. Botkins said yesterday. "Nothing we have read in the motion for summary judgment changes that. We look forward to upholding the law in court."

Mr. Earley has argued all along that explicitly including the option to pray guarantees the student's constitutional right to free expression.

But the ACLU, citing from several newspaper articles about the law, Senate Bill 209, as it made its way through the legislature, argues that lawmakers didn't just want to allow prayer they wanted to encourage it.

Encouraging prayer, the ACLU argues, violates the establishment clause of the First Amendment.

The ACLU also argues that the method of enforcing the period of silence requiring students to remain seated and silent could hinder exercise of religion for students who usually pray aloud or while kneeling.

The law went into effect July 1, and with thousands of students in summer classes, schools already have their plans for allowing the minute of silence.

Many school districts, including those in Northern Virginia, have told teachers to simply tell students it's time to be silent but not instruct them how to use the time.

Some summer school students used the time to pray, but others said they just waited for the minute to end.

Hearings on other motions are scheduled for the intervening weeks, and the ACLU and Mr. Earley are trying to work out what to do with those, but the Sept. 1 hearing promises to be the real showdown.

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